Gunn v. Grossman

748 A.2d 1235, 2000 Pa. Super. 48, 2000 Pa. Super. LEXIS 150, 2000 WL 202068
CourtSuperior Court of Pennsylvania
DecidedFebruary 23, 2000
Docket1830, 1831 EDA 1999
StatusPublished
Cited by70 cases

This text of 748 A.2d 1235 (Gunn v. Grossman) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gunn v. Grossman, 748 A.2d 1235, 2000 Pa. Super. 48, 2000 Pa. Super. LEXIS 150, 2000 WL 202068 (Pa. Ct. App. 2000).

Opinion

HESTER, J.:

¶ 1 David M. Rodgers, M.D., Chestnut Hill Cardiology Consultants, Ltd., and Lawrence L. Livornese, M.D., appeal from the $2,798,924 judgment entered against them after a jury determined that they were liable for medical malpractice. We affirm.

¶ 2 The trial court has aptly summarized the facts as follows.

Plaintiffs decedent, Deborah Gunn, was a 33 year old who had a prior heart condition necessitating the implantation of a prosthetic heart valve some years before this incident. She had been treated for a number of years by the defendant, David M. Rodgers, her cardiologist. On the evening of January 9, 1992, the plaintiff went to the Emergency Ward of the Defendant, Chestnut Hill Hospital, with flu like symptoms. She was prescribed a penicillin based antibiotic called Augmentin and sent home. The next afternoon, January 10, 1992, since her symptoms worsened, she again appeared at the Emergency Ward. The defendant, Dr. Nelson K. Henry, who was covering for her family physician, was notified about her condition, as was her cardiologist, Dr. Rodgers. After she was admitted into the hospital, the defendant, Dr. Lawrence L. Livornese, as an infectious disease expert, was also called in for consultation. Dr. Livornese recommended the administration of another penicillin based antibiotic, Unasyn, which was prescribed intravenously. This prescription then was ordered by Dr. Rodgers and approved by Dr. Henry. 1 After three intravenous injections of four milligrams of the antibiotic at six hour intervals, the plaintiffs condition worsened to horrific proportions. She was taken off this antibiotic shortly thereafter, but to no avail. The plaintiff developed toxic epidermal neurolysis (tens). This is a disease that reacts in a somewhat similar fashion as if the patient were severely burned. Her skin began to exfoliate which in turn affected other vital organs of her body. Several days later she was transferred to the St. Agnes Burn Center where she expired on January 19,1992.
The liability portion of the plaintiffs case was centered around the expert testimony of two certified internal medicine physicians whose subspecialty was infectious diseases. They opined that it was negligence to continue to prescribe penicillin based antibiotics after the plaintiff had exhibited an allergic reaction to the initial prescription of Aug-mentin. Dr. Dial Hewlett, one of plaintiffs experts, also stated that the tens was caused from this allergic reaction to *1238 the Unasyn drug. The plaintiff also produced a Ph.D. in Pharmacology who testified that tens could occur from an allergic reaction to this penicillin based antibiotic. The defendants vigorously contested liability. The defendants denied that any malpractice was committed; nor any causal connection between the administration of the drug and harm to Ms. Gunn. This defense was supported by their experts who asserted that at the time Ms. Gunn returned to the hospital there was no reason to believe that she had suffered an allergic reaction to the original penicillin based drug. Her prior medical history contained no event which would have led the physicians to believe that she had ever had an allergic reaction to penicillin. Additionally, they maintained that she had exhibited no increased symptoms upon her return to the hospital that next afternoon. They further asserted that there was no causal connection between her allergic reaction and any harm. They maintained that the tens (if in fact that is what disease she suffered from) arose from another cause and not from the administration of the Unasyn.

¶3 At the conclusion of the trial, the jury found in favor of Sheila Gunn, the decedent’s executrix. Warren Gunn, the decedent’s father, is the decedent’s sole beneficiary. The jury found Dr. Rodgers and Chestnut Hill Cardiology Consultants, Ltd. thirty percent liable, and Dr. Livor-nese seventy percent liable. The trial court ordered that Appellants pay the following: under the Wrongful Death Act, $2,050,000, and under the Survival Act, $35,000. Delay damages amounting to $713,924 were later added, amounting to a total verdict of $2,798,924. This appeal followed.

¶ 4 Appellants contend that the trial court erred in not granting a judgment notwithstanding the verdict.

In reviewing a motion for a judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further[,] a judge’s appraisement of the evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations. There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure. Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). Accord Nogowski v. Alemo-Hammad, 456 Pa.Super. 750, 758-764, 691 A.2d 950, 955-57 (1997) (en banc), appeal denied, 550 Pa. 684, 704 A.2d 638 (1997). In making the determination of whether judgment notwithstanding the verdict is appropriate, our scope of review is plenary as it is with any review of questions of law. Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189 (1997). Boutte v. Seitchik, 719 A.2d 319, 322-23 (Pa.Super.1998).

Rohm and Haas Co. v. Continental Casualty Co., 732 A.2d 1236, 1247-48 (Pa.Su *1239 per.1999). A judgment n.o.v. should be entered only in a clear case. Nogowski v. Alemo-Hammad, supra.

¶ 5 If a judgment n.o.v. is not granted, Appellants seek in the alternative a new trial. A trial court’s decision regarding the grant or refusal of a new trial will not be reversed on appeal absent an abuse of discretion or an error of law that controlled the outcome of the case. Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 696 A.2d 1169 (1997). In making this determination, we must consider, viewing the evidence in the light most favorable to the verdict winner, whether a new trial would produce a different verdict. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 537 A.2d 814 (1987).

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Bluebook (online)
748 A.2d 1235, 2000 Pa. Super. 48, 2000 Pa. Super. LEXIS 150, 2000 WL 202068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunn-v-grossman-pasuperct-2000.