Kersey, P. v. Pisano, M.

• Court: Superior Court of Pennsylvania
• Decided: March 7, 2023
• Docket: 798 EDA 2022
• Status: Unpublished

Opinion

J-A24032-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PEARL KERSEY, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF AS ADMINISTRATRIX OF THE ESTATE : PENNSYLVANIA OF LONNIE KERSEY, DECEASED : : : v. : : : MICHAEL J. PISANO, III, D.O., AND : No. 798 EDA 2022 PASSYUNK MEDICAL ASSOCIATES, : P.C. : : Appellants : :

Appeal from the Judgment Entered March 2, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 1804-04705

BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED MARCH 7, 2023

Michael J. Pisano, III, D.O. (“Dr. Pisano”), and Passyunk Medical

Associates, P.C. (collectively “Appellants”), appeal from the entry of judgment

in favor of Pearl Kersey, individually and as Administratrix of the Estate of

Lonnie Kersey, deceased (“Appellee”). We vacate the order entering

judgment, affirm in part and vacate in part the jury’s verdict, and remand with

instructions.

The relevant factual and procedural history is as follows. In 2010,

Lonnie Kersey (“Decedent”) sought medical care from Dr. Pisano, a board-

certified specialist in internal medicine practicing as a primary care physician.

At the inception of their patient-physician relationship, Decedent informed Dr. J-A24032-22

Pisano that Decedent’s father died from prostate cancer. Decedent also

informed Dr. Pisano that Decedent suffered from benign prostate hyperplasia

(enlarged prostate) which he treated with dutasteride, a medication that

increases the risk of high-grade prostate cancer and artificially suppresses

prostate specific antigen (“PSA”) levels by fifty percent.1 Decedent

additionally informed Dr. Pisano that he was the victim of a gunshot wound

prior to 1992 and, in connection therewith, underwent a blood transfusion.2

Finally, Decedent informed Dr. Pisano that his lab tests showed elevated liver

enzymes.

In 2012, Dr. Pisano ordered bloodwork for Decedent which revealed that

his PSA level was 1.0 ng/ml. In March of 2014, Dr. Pisano ordered further

testing which revealed that Decedent’s PSA level was 1.2 ng/ml. In May 2014,

while Decedent was receiving in-patient treatment at Thomas Jefferson

University Hospital,3 a blood test revealed that Decedent had hepatitis C.

There is no evidence that Decedent informed Dr. Pisano of this diagnosis, nor

any evidence that Dr. Pisano reviewed the hospital records.

____________________________________________

1 PSA is a protein in blood that is used to screen for prostate cancer.

2 Appellee maintains that the fact that Decedent had a blood transfusion prior to 1992 is significant because, before 1992, there was no procedure in place to test donated blood for diseases, such as hepatitis C. See Appellee’s Brief at 5.

3Decedent underwent an amputation of his distal left leg due to peripheral vascular disease.

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Testing performed in September of 2015 revealed that Decedent’s PSA

level had increased to 3.0 ng/ml, which should have been regarded as in the

abnormal range due to the fact that Decedent was taking dutasteride. There

is no documentation that Dr. Pisano understood the clinical significance of the

abnormal PSA test result or that he discussed it with Decedent. Over the

course of the next two years, Dr. Pisano did not order any follow-up PSA

testing for Decedent. On February 8, 2017, another blood test indicated that

Decedent had hepatitis C. On September 6, 2017, testing revealed that

Decedent’s PSA level had increased to 203.3 ng/ml. Decedent’s last

appointment with Dr. Pisano was on September 11, 2017. At that

appointment, Dr. Pisano referred Decedent to a specialist for treatment of

suspected prostate cancer.4 On September 27, 2017, Decedent was

diagnosed with metastatic stage IV prostate cancer.

Decedent and Appellee commenced the instant litigation in April 2018

by filing a writ of summons. They filed a complaint on June 2018 asserting

claims sounding in medical malpractice based on Appellants’ care and

treatment of Decedent between 2015 and 2017. On July 5, 2018, Decedent

was diagnosed with liver cancer caused by chronic untreated hepatitis C and

4Between 2010 and 2017, Decedent had over seventy medical appointments with Dr. Pisano.

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cirrhosis. Decedent died on July 31, 2018 due to liver failure.5 His death

certificate, which was issued one week later, listed liver cancer as the sole

cause of death. See Certificate of Death, 8/6/18, at 1.

In August 2018, the trial court entered a case management order which

established, inter alia, a deadline for expert reports on December 2, 2019. By

stipulation, the parties extended the expert report deadline to January 16,

2020.

On January 28, 2019, Appellee filed a first amended complaint. Therein,

Appellee averred that Dr. Pisano deviated from the accepted standard of care

when he failed to refer Decedent to a urologist for assessment of possible

prostate cancer following the abnormal September 2015 PSA test, and failed

to order any further PSA testing between 2015 and 2017. See First Amended

Complaint, 1/28/19, at ¶¶ 40-44. Appellee claimed that, as a result of

Appellants’ negligence, “[Decedent’s] prostate cancer was allowed to

progress, undiagnosed and untreated to advanced, metastatic [s]tage IV

disease with a corresponding diminution of his life expectancy.” Id. at ¶ 52.

Further, the first amended complaint averred that “[t]he negligence of

Defendants, by their acts and/or omissions resulted in an unreasonable delay

in the diagnosis of [Decedent’s] prostate cancer” and that he “passed away as

a result of his advanced stage cancer.” Id. at ¶¶ 53, 57. The first amended

5 Following Decedent’s death, Appellee was substituted as plaintiff in her individual capacity and as the administratrix of his estate.

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complaint asserted a wrongful death claim pursuant to 42 Pa.C.S.A. § 8301,

and a survival act claim pursuant to 42 Pa.C.S.A. § 8301, and attached a copy

of Decedent’s death certificate. The first amended complaint made no

mention of Decedent’s liver cancer; nor did it contain any allegations of

medical negligence specifically related to the care and treatment of Decedent’s

liver, the failure to test for hepatitis C, or the failure to refer Decedent to a

hepatologist. The first amended complaint also did not contain any assertions

of medical negligence by Dr. Pisano prior to 2015. Appellants did not file

preliminary objections to the first amended complaint.

In August 2020, Appellee produced the expert reports of David L. Fried,

M.D., and Guarionex Joel DeCastro, M.D. In his August 15, 2020 report, Dr.

Fried, a board-certified specialist in internal medicine and adult primary care,

opined that Dr. Pisano deviated from the standard of care for internists when

he failed to recognize the clinical significance of Decedent’s abnormal PSA

level in September 2015 and refer him to a specialist for treatment at that

time, and in the two years thereafter, resulting in the development of

metastatic stage IV prostate cancer. See Fried Expert Report, 8/15/20, at 6.

In his August 27, 2020 report, Dr. DeCastro, a board-certified urologist

with an area of focus in prostate cancer, opined that Dr. Pisano deviated from

the applicable standard of care when he failed to recognize the clinical

significance of Decedent’s abnormal PSA level in September 2015 and refer

him to a urologist for biopsy and treatment. See DeCastro Expert Report,

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8/27/20, at 3. Dr. DeCastro further opined that, had Dr. Pisano referred

Decedent to a specialist in September 2015 after the initial tripling of his PSA

levels, his prostate cancer would not have spread beyond the prostate and he

would have had a ninety percent chance of cure. Id.

On January 5, 2021, Appellee produced the supplemental expert report

of Dr. DeCastro in which he opined that, although Decedent died of liver failure

caused by liver cancer, “the underlying widespread metastatic prostate cancer

was a substantial contributing factor to his death.” DeCastro Expert Report,

1/5/21, at 1. In Dr. DeCastro’s opinion, Dr. Pisano’s failure to refer Decedent

to a specialist in September 2015 resulted in the delay of the diagnosis and

treatment of Decedent’s prostate cancer, which meant that his hepatitis C

could not be treated due to the need for systemic chemotherapy for the

prostate cancer, thereby increasing the risk that he would develop liver cancer

from hepatitis C. Id.

The case was originally scheduled to be ready for trial in May 2020.

However, due to the Covid-19 pandemic and the resultant court closures, trials

were suspended until March 4, 2021. As a result, the case was rescheduled

for trial in October 2021.

On July 6, 2021, Appellee produced the expert report of George Y. Wu,

M.D., a board-certified internist with specialties in gastroenterology and

hepatology. In his July 6, 2021 report, Dr. Wu opined that Dr. Pisano was

negligent in his care and treatment of Decedent’s liver between 2010 and

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2014. Specifically, Dr. Wu opined that Dr. Pisano deviated from the standard

of care when he failed to order hepatitis C screenings for Decedent beginning

in 2010, given Decedent’s numerous risk factors (i.e., a blood transfusion prior

to 1992, elevated liver enzymes, and advanced age). See Wu Expert Report,

7/6/21, at 2. Dr. Wu further opined that Dr. Pisano’s delay until 2017 in

referring Decedent to a specialist meant that treatment for Decedent’s

hepatitis C was delayed. Id. at 3. The parties scheduled Dr. Wu’s trial

deposition for September 15, 2021. The day before Dr. Wu’s trial deposition,

Appellee submitted two supplemental expert reports prepared by Dr. Wu. In

one report, Dr. Wu clarified his opinion that Dr. Pisano was negligent in the

care and treatment of Decedent’s liver commencing in 2010 when he failed to

regularly screen Decedent for hepatitis C. See Wu Expert Report, 9/14/21,

at 1. In another report, Dr. Wu noted that, on May 15, 2014, Decedent was

diagnosed with hepatitis C while hospitalized at Thomas Jefferson University

Hospital. See Wu Expert Report, 9/14/21, at 1. Dr. Wu further concluded

that, although there is no evidence that Decedent communicated to Dr. Pisano

that he had been diagnosed with hepatitis C, Dr. Pisano deviated from the

standard of care by failing to review the hospital records to learn of the

hepatitis C diagnosis, inform Decedent of the significance of that diagnosis,

and insist that Decedent see a hepatologist in 2014. Id. at 2.

Appellants filed motions in limine to preclude: (1) any cause of action

for liability related to Decedent’s liver cancer as barred by the statute of

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limitations; (2) Dr. Wu’s expert reports and testimony as untimely; and (3)

the testimony of Drs. Wu and DeCastro as unqualified to provide testimony on

the standard of care applicable to an internist or primary care physician.

Appellee sought to prevent the admission of any evidence regarding

Decedent’s non-compliance with two referrals provided to him in 2008 to see

a urologist due to his benign prostate hyperplasia (enlarged prostate). The

trial court granted Appellee’s motion in limine and denied Appellants’ motions

in limine.

The matter proceeded to jury trial in October 2021. Appellee presented

the expert testimony of Drs. DeCastro and Fried, and the trial deposition

testimony of Dr. Wu. Dr. DeCastro testified that Dr. Pisano deviated from the

standard of care when he inappropriately managed Decedent’s abnormal PSA

test result in September 2015, an almost tripling of his prior PSA test, and

failed to discuss the test results with Decedent. See N.T., 10/19/21, at 93-

94, 95. Dr. DeCastro pointed out that Decedent had several risk factors for

developing prostate cancer, including being an African American male (and

thus a member of a demographic that tend to get worse prostate cancer at an

earlier age and fare worse) with a family history of prostate cancer, all of

which drastically heightened his risk of harboring prostate cancer. Id. at 95,

119. Dr. DeCastro also testified that, because Decedent was taking

dutasteride for his benign prostate hyperplasia (enlarged prostate), Dr. Pisano

should have interpreted Decedent’s September 2015 PSA test result of 3.0

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ng/ml as 6.0 ng/ml because “it is a very well-established and known fact” that

dutasteride artificially shrinks the prostate and the PSA levels. Id. at 103;

see also id. at 118 (wherein Dr. DeCastro opined that “anybody who

prescribes [dutasteride] must know that [the PSA is not 3, it’s 6]. And if they

don’t, they shouldn’t be prescribing [dutasteride]”). Dr. DeCastro further

explained that, if an individual taking dutasteride develops prostate cancer, it

tends to be a more aggressive prostate cancer. Id. at 104. Dr. DeCastro

opined that, in September 2015 Decedent had likely developed localized

prostate cancer which, if treated, would not have spread beyond the prostate

would have had a ninety percent chance of cure. Id. at 122-27.

Dr. Fried testified that Dr. Pisano deviated from the standard of care

when he failed to perform a digital rectal exam of Decedent’s prostate at any

medical appointment after Decedent’s initial visit in 2010. See N.T.,

10/20/21, at 22-23. Like Dr. DeCastro, Dr. Fried explained that it is well-

documented that dutasteride artificially shrinks the prostate and lowers the

PSA levels by fifty percent. Id. at 19. Dr. Fried testified that there is no

indication in the medical records that Dr. Pisano recognized the clinical

significance of Decedent’s September 2015 PSA test results, or that they were

abnormal. Id. at 23. Dr. Fried explained that Dr. Pisano should have

interpreted Decedent’s March 2014 PSA test result of 1.2 ng/ml as 2.4 ng/ml,

and his September 2015 PSA test result of 3.0 ng/ml as 6.0 ng/ml, which was

above the normal range of 0 ng/ml to 4.0 ng/ml. Id. at 24. Dr. Fried further

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explained that Decedent had several risk factors for prostate cancer, including

an enlarged prostate, his age over fifty, being of African American descent,

and having a first-degree family member (father) who had prostate cancer.

Id. Dr. Fried opined that these risk factors, coupled with the short timeframe

in which Decedent’s PSA levels nearly tripled between 2014 and 2015, should

have been very suspicious, concerning, and regarded as a “red flag [that] this

is cancer until proven otherwise.” Id. at 24-25. Dr. Fried explained that,

when a primary care physician sees a lab value like Decedent’s September

2015 PSA level, the physician is obligated to discuss the test result with the

patient and refer the patient to a urologist. Id. at 25. Dr. Fried concluded

that Dr. Pisano deviated from the standard of care of a primary care physician

by failing to recognize that Decedent’s September 2015 PSA test result was

“very abnormal,” failing to have a discussion with him regarding his abnormal

test result, and failing to refer him to a urologist for diagnostic testing and

treatment. Id. at 25-26, 34-35. Dr. Fried further concluded that Dr. Pisano

deviated from the standard of care by failing to order any further screening or

diagnostic testing of Decedent’s PSA level at any subsequent medical

appointment until September 2017, when his prostate cancer had already

metastasized. Id. at 25-26, 86.

In his trial deposition, Dr. Wu testified that Dr. Pisano deviated from the

standard of care when he failed to screen Decedent for hepatitis C between

2010 and 2014, given Decedent’s age, the fact that he had a blood transfusion

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prior to 1992, and that fact that his test results indicated elevated liver

enzymes. See N.T., 9/15/21, at 98-99. Dr. Wu explained that, because there

was no commercially available screening test for hepatitis C until 1992,

individuals who received blood transfusions before 1992 are at the highest

risk for that disease. Id. at 47. Dr. Wu further testified that Dr. Pisano should

have reviewed Decedent’s May 2014 hospital records which indicated that he

tested positive for hepatitis C. Id. at 119-27. Dr Wu indicated that if

Decedent’s hepatitis C had been treated, it would have prevented Decedent

from developing cirrhosis and liver cancer as a result of his hepatitis C. Id.

at 177.

The trial court instructed the jury to make separate findings of fact as

to liability, causation, and damages for both Decedent’s prostate cancer and

his liver cancer. At the conclusion of trial, the jury returned a verdict in favor

of Appellee. Pursuant to a special verdict form, the jury determined that Dr.

Pisano was negligent in his treatment of Decedent’s prostate health and in his

treatment of Decedent’s liver health, and awarded compensatory damages in

the amount of $1,500,000 for the prostate cancer and $1,200,000 for the liver

cancer.6 Appellants filed a post-verdict motion asserting that the liver cancer

cause of action was barred by the statute of limitations and seeking a new

6 The jury determined that Decedent was twenty percent liable for his liver cancer because he failed to get bloodwork the first time Dr. Pisano instructed him to do so.

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trial solely on the prostate cancer cause of action. Appellee filed a motion to

award delay damages. In orders entered on February 25, 2022, the trial court

denied Appellants’ post-trial motion and granted Appellee’s motion for delay

damages. On March 2, 2022, the trial court entered judgment for Appellee in

the amount of $3,058,099.76. Appellants filed a timely notice of appeal and

both Appellants and the trial court complied with Pa.R.A.P. 1925.

Appellants raise the following issues for our review:

1. Should questions about screening for liver disease and its treatment have been submitted to the jury, and evidence in support of this cause of action admitted at trial, when no references to liver screening, treatment, or diseases appear in any of [Appellee’s] complaints or other pleadings, and when this cause of action was first advanced by the production of the report of expert witness Dr. . . . Wu on July 6, 2021, a year after the statute of limitations ran on July 31, 2020?

2. Should [Appellee] have been allowed to offer into evidence the opinions, by written reports and sworn testimony, of [Dr. Wu], when [he] was first identified as a witness and his opinions were first advanced by [Appellee] on July 6, 2021, nineteen months after the applicable deadline under the case management order, and [Appellee] advanced further new theories of liability by way of new reports by Dr. Wu produced on September 14, 2021?

3. Should [Appellee] have been allowed to offer into evidence the opinions of expert witness [Dr.] Wu, who does not practice internal medicine and has never been a primary care physician, as to the standard of care applicable to Dr. Pisano, a primary care physician board certified in internal medicine?

4. Should [Appellee] have been allowed to offer into evidence the opinions of expert witness [Dr.] DeCastro, who does not practice internal medicine and has never been a primary care physician, as to the standard of care applicable to Dr. Pisano, a primary care physician board certified in internal medicine, despite the provisions of 40 P.S. § 1303.512?

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5. Should [Appellants] have been barred from presenting at trial evidence that [Decedent] was causally noncompliant with referrals to urology specialists for prostate treatment, when such evidence was relevant and thus admissible under Pa.R.E. 402, it was nonprejudicial as a matter of law, and [Appellee] presented no cognizable argument for its preclusion?

Appellants’ Brief at 3-5 (unnecessary capitalization omitted).

In their first issue, Appellants claim that the trial court should not have

permitted the case to proceed on the liver cancer cause of action because it

was not raised in the complaint, the first amended complaint, or at any time

in the case until after the statutes of limitation expired. We begin with a

review of the applicable law. Absent issues pertaining to the discovery rule,

the determination of which statute of limitations applies and whether it has

run on a particular claim are generally questions of law for the trial judge.

See Wilson v. Transp. Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005).

These questions of law compel this Court’s plenary review to determine

whether the trial court committed an error of law. Id.

In Pennsylvania, the statute of limitations applicable to medical

negligence, wrongful death, and survival actions appears at 42 Pa.C.S.A. §

5524 (2), which provides that “an action to recover damages for injuries to

the person or for the death of an individual caused by the wrongful act or

neglect or unlawful violence or negligence of another” must be commenced

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within two years.7 The two-year period begins to run “from the time the cause

of action accrued . . .” 42 Pa.C.S.A. § 5502 (a).

The causes of action for these various claims accrue at different times.

The statute of limitations for a medical negligence cause of action typically

begins to run from the time of injury. See Ayers v. Morgan, 289-90, 154

A.2d 788, 792 (Pa. 1959) (explaining that a right of action accrues only when

injury is sustained by the plaintiff, not when the causes are set in motion which

ultimately produce injury as a consequence); see also Ingenito v. AC & S,

Inc., 633 A.2d 1172, 1174 (Pa. Super. 1993) (explaining that, in creeping

diseases cases, the statute of limitations begins to run when the injured

person knows, or reasonably should know: (1) that he has been injured; and

(2) that his injury has been caused by another party’s conduct). Similarly,

the statute of limitations for a survival action begins to run on the date of the

decedent’s injury, as if the decedent were bringing his or her own lawsuit.

See Moyer v. Rubright, 651 A.2d 1139, 1141-42 (Pa. Super. 1994) (holding

that the statute of limitations on a cause of action under the survival act for

medical negligence for failure to detect cancer began to run on the date

plaintiff was diagnosed with cancer); see also Salvadia v. Ashbrook, 923

7 The Medical Care Availability and Reduction of Error Act (“MCARE”) provides a statute of limitations that requires a claimant to commence a wrongful death or a survival action asserting a medical professional liability claim within two years after the date of death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death. See 40 P.S. § 1303.513(d).

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A.2d 436, 440, (Pa. Super. 2007) (explaining that, unlike a wrongful death

action, a survival action is not a new cause of action, but merely continues in

the decedent’s personal representative the right of action which accrued to

the deceased at common law). On the other hand, the statute of limitations

for a wrongful death claim begins to run when a pecuniary loss is sustained

by the beneficiaries of the person whose death has been caused by the tort of

another, but no later than the date of the decedent’s death. Moyer, 651 A.2d

at 1142. The purpose of a statute of limitations period is to expedite litigation

and discourage delay and the presentation of stale claims which may greatly

prejudice the defense of such claims. See Wachovia Bank, N.A. v. Ferretti,

935 A.2d 565, 575 (Pa. Super. 2007) (holding that statutes of limitation are

to be strictly construed).

The purpose of pleadings is to place the defendants on notice of the

claims upon which they will have to defend. See Carlson v. Cmty.

Ambulance Servs., 824 A.2d 1228, 1232 (Pa. Super. 2003). Accordingly, a

complaint must give the defendants fair notice of the plaintiff’s claims and a

summary of the material facts that support those claims. Id. The

Pennsylvania Rules of Civil Procedure provide that a plaintiff may state in the

complaint more than one cause of action against the same defendant;

however, “[e]ach cause of action and any special damage related thereto shall

be stated in a separate count containing a demand for relief.” Pa.R.C.P.

1020(a).

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Pursuant to Rule 1033, a party may at any time, either with consent of

the adverse party or with leave of court, amend his or her pleading to aver

transactions or occurrences which happened before or after the filing of the

original pleading, even though they give rise to a new cause of action. See

Pa.R.C.P. 1033(a). A party may also seek such an amendment to conform

the pleading to the evidence offered or admitted. Id. Such amendments are

to be liberally permitted except where surprise or prejudice to the other party

will result, or where the amendment is against a positive rule of law. See

Berman v. Herrick, 227 A.2d 840, 841 (Pa. 1967). Amendments that would

introduce a new cause of action are not permitted after the applicable statute

of limitations has run. See Olson v. Grutza, 631 A.2d 191, 198 (Pa. Super.

1993).

A claim or cause of action in negligence has been defined as the

negligent act or acts which occasioned the injury for which relief is sought.

See Reynolds v. Thomas Jefferson Univ. Hosp., 676 A.2d 1205, 1210 (Pa.

Super. 1996). A new cause of action does not exist if a plaintiff’s amendment

merely adds to or amplifies the original complaint or if the original complaint

states a cause of action showing that the plaintiff has a legal right to recover

what is claimed in the subsequent complaint. Id. at 1210; see also Connor

v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983) (holding that, where

plaintiffs in their original complaint made specific allegations of negligence as

well as a general allegation that defendant hospital was negligent “[i]n

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otherwise failing to use due care and caution under the circumstances,” the

trial court erred in denying plaintiffs’ motion to amend the complaint to specify

other ways in which the hospital was negligent). For purposes of determining

whether a claimed or apparent discrepancy between pleadings and proof

constitutes a variance, the entire pleadings and evidence should be

considered. See Reynolds, 676 A.2d at 1209. Pennsylvania courts have held

that a variance is not material if the alleged discrepancy causes no prejudice

to the adverse party. Id.

However, a new cause of action arises if the plaintiff proposes a different

theory or a different kind of negligence than the one previously raised or if the

operative facts supporting the claim are changed. Id. at 1213. Stated

differently, a variance occurs where the proof at trial establishes a cause of

action that was not alleged in the parties’ pleadings. Id. at 1209. Where an

expert report sets forth a new cause of action, the trial court may not permit

the plaintiff to introduce the report after the applicable statute of limitations

has run. Id. at 1210.

Appellants contend that the complaint and first amended complaint

pertain solely to Dr. Pisano’s clinical judgment in monitoring Decedent’s

prostate health and risk for prostate cancer between 2015 and 2017.

According to Appellants, the first amended complaint contains one-hundred

and forty-six references to the prostate or to urological symptoms or

treatment, but contains no reference to Decedent’s liver, liver health, liver

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diseases, or liver cancer. Appellants contend that the first amended complaint

also failed to give notice of any claim pertaining to Dr. Pisano’s treatment of

Decedent between 2010 and 2014. Appellants maintain that Dr. Wu’s expert

reports presented a new and distinct cause of action for Dr. Pisano’s treatment

of Decedent’s liver between 2010 and 2014, to which different courses of

treatment would be prescribed, different defenses would apply, different

evidence would be required for proof, and different damages would attach

upon a finding of liability. As further support for their argument that the

causes of action were distinct, Appellants point to the fact that the trial court

instructed the jury to make separate findings on liability and damages arising

from a cause of action related to Decedent’s prostate cancer diagnosis in 2017

and a cause of action related to Decedent’s liver cancer diagnosis in 2018.

Appellants point out that the two-year statute of limitations for injuries

and death suffered by Decedent due to medical negligence expired, at the

latest, on July 31, 2020, which is two years after Decedent’s death. Appellants

assert that Appellee did not raise any theory of liability regarding Dr. Pisano’s

treatment of Decedent’s liver until nearly one year after the statute of

limitations expired, when Appellee produced the July 6, 2021 expert report of

Dr. Wu. Appellee thereafter produced supplemental expert reports prepared

by Dr. Wu in which he rendered opinions regarding Dr. Pisano’s management

of Decedent’s liver health between 2010 and 2014. Appellants assert that Dr.

Wu’s deposition testimony was the only evidence presented to the jury

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regarding Dr. Pisano’s liability for managing Decedent’s liver health.

Appellants claim that Appellee’s liver-related claims are barred by the statute

of limitations as a matter of law, and that the trial court erred by permitting

plaintiffs to proceed on that cause of action.

The trial court considered Appellants’ first issue and summarily

concluded that there was no material variance between the pleadings and the

evidence Appellee sought to admit at trial. See Trial Court Opinion, 6/13/22,

at 6-7. We cannot agree with the trial court’s unsupported conclusion.

As explained above, the operative complaint must give the defendants

fair notice of the plaintiff’s claims and a summary of the material facts that

support those claims. See Carlson, 824 A.2d at 1232. Further, if a plaintiff

alleges more than one cause of action against the same defendant, each cause

of action and any special damage related thereto must be stated in a separate

count containing a demand for relief. See Pa.R.C.P. 1020(a).

In the instant matter, the first amended complaint contained only one

cause of action (Count I) against Dr. Pisano which pertained solely to his

failure to apprehend the clinical significance of Decedent’s abnormal PSA test

result in September of 2015, and his failure to conduct further PSA testing

between September of 2015 and September 2017. See First Amended

Complaint, 1/28/19, at ¶¶ 62-65. The first amended complaint asserted a

prayer for relief for Count I in excess of $50,000. Id. at 16. Appellee asserted

a separate cause of action (Count II) against Passyunk Medical Associates,

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P.C., and the “Jefferson Defendants,” which included Thomas Jefferson

University Hospital and its related entities.8 See id. at 16-17, ¶¶ 66-69. As

in Count I, Count II consisted of averments regarding the failure by the various

defendant entities and their agents to appreciate the clinical significance of

Decedent’s September 2015 abnormal PSA test result, conduct follow-up

testing, and refer Decedent to a urologist. See id. The first amended

complaint asserted a prayer for relief for Count II in excess of $50,000. Id.

at 18. The first amended complaint did not include any averments or prayer

for relief against either Dr. Pisano or Passyunk Medical Associates, P.C.,

pertaining to Dr. Pisano’s failures to test Decedent for hepatitis C between

2010 and 2014, obtain Decedent’s hospital records from May 2014, discuss

the hepatitis C diagnosis with Decedent, or refer Decedent to a hepatologist

in 2014.

As Decedent was diagnosed with liver cancer on July 5, 2018, the statute

of limitations applicable to a survival claim based on Decedent’s liver cancer

would have expired on July 5, 2020. Similarly, because Decedent died on July

31, 2018, the statute of limitations applicable to a wrongful death claim based

on Decedent’s liver cancer would have expired, at the latest, on July 31, 2020.

At no point prior to those statutory expiration dates did Appellee seek to

8The Jefferson Defendants filed a motion for summary judgment which was uncontested by Appellee. The trial court granted the motion, and the Jefferson Defendants were dismissed from the action in January 2021.

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amend her first amended complaint to add: a new cause of action based on

Dr. Pisano’s negligence with respect to Decedent’s liver health between 2010

and 2014; a summary of the material facts supporting such a claim; or a

prayer for relief pertaining to Decedent’s diagnosis of and death from liver

cancer.

Instead, after the statutes of limitation pertaining to Decedent’s liver

cancer had expired, Appellee produced the expert reports of Dr. Wu. In his

July 6, 2021 and September 14, 2021 reports, Dr. Wu opined that Dr. Pisano

was negligent in the care and treatment of Decedent’s liver and liver health.

Specifically, Dr. Wu concluded that, given Decedent’s various risk factors,

including a blood transfusion from a gunshot wound prior to 1992, elevated

liver enzymes, and his age, Dr. Pisano should have been screening Decedent

for hepatitis C from the inception of their patient-physician relationship in

2010. See Wu Expert Report, 7/6/21, at 3. Dr. Wu further concluded that,

after Decedent was diagnosed with hepatitis C in May 2014 while he was

admitted at Thomas Jefferson University Hospital, Dr. Pisano was careless in

failing to review Decedent’s hospital records and learn of the test results,

inform Decedent of his hepatitis C diagnosis and its significance, and insist

that Decedent see a hepatologist in 2014. See Wu Expert Report, 9/14/21,

at 2.

Even the most generous reading of the rule permitting liberal allowance

of amendments would not countenance the introduction of a new theory of

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liability sought so late by Appellee. These new claims of medical negligence,

as set forth in Dr. Wu’s expert reports, did not merely add to or amplify the

negligence claims set for in the first amended complaint which focused

exclusively on Dr. Pisano’s failure to appreciate the clinical significance of

Decedent’s abnormal September 2015 PSA test, to refer him to a urologist at

that time, and to order further prostate testing between 2015 and 2017. See

Amended Complaint, 1/28/19, at ¶¶ 40-44, 63-65. The proof needed to

establish the theory of negligence espoused by Dr. Wu involved a different

time frame and required different proof than the theory of liability alleged in

the first amended complaint. Indeed, the cause of action set forth in the first

amended complaint pertaining to Dr. Pisano’s treatment of Decedent’s

prostate following his elevated and abnormal PSA test levels in 2015, required

medical records and testing from 2015 through 2017, and the expert reports

and opinion testimony of a urologist. On the other hand, Dr. Wu’s theory

pertaining to Dr. Pisano’s treatment of Decedent’s liver required medical

records and testing from 2010 through 2014 and the expert reports and

opinion testimony of a hepatologist. Given these differences, we conclude

that a material variance occurred because the proof presented at trial,

consisting of Dr. Wu’s reports and testimony, established a cause of action

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regarding Dr. Pisano’s treatment of Decedent’s liver that was not alleged in

the first amended complaint.9

Because this material variance occurred after the applicable statutes of

limitation expired, the trial court erred as a matter of law by permitting

Appellee to present the expert reports and testimony of Dr. Wu, which raised

a new cause of action that was time-barred. We must therefore vacate the

portion of the jury’s verdict which finds in favor of Appellee on the liver cancer

cause of action and awards compensatory damages on that cause of action.

Given our disposition of Appellants’ first issue, we conclude that their

second and third issues, regarding the trial court’s failure to preclude the

9 We are mindful that “general allegations of a pleading, which are not objected to because of their generality, may have the effect of extending the available scope of a party’s proof, such that the proof would not constitute a variance, beyond that which a party might have been permitted to give under a more specific statement.” Reynolds, 676 A.2d at 1209-10 (citing Standard Pennsylvania Practice 2d, §§ 33:1, 33:6, 33:8 (1994)); see also Connor, 461 A.2d at 602 (holding that a motion to amend the complaint should have been permitted where the original complaint included a general allegation that defendant hospital was negligent “[i]n otherwise failing to use due care and caution under the circumstances”). In the instant matter, unlike in Connor, Appellee never sought to file a second amended complaint to include a cause of action regarding Dr. Pisano’s negligence in reference to Decedent’s liver cancer. Moreover, in Connor, the plaintiff’s proposed amendments were part of a causally related chain of events which occurred on the same day and at the same place. In the instant matter, any amendment that Appellee might have sought would pertain to not only different days, but different years. Thus, Connor is wholly inapposite.

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admission of Dr. Wu’s expert reports as untimely,10 and the trial court’s failure

to preclude Dr. Wu’s expert testimony as unqualified, are moot.

In their fourth issue, Appellants contend that the trial court erred in

permitting the trial testimony of Dr. DeCastro regarding Dr. Pisano’s

deviations from the standard of care applicable to primary care physicians.

When we review a ruling on the admission or exclusion of evidence, including

the testimony of an expert witness, our standard is well-established and very

narrow. See Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super.

2006). The admission or exclusion of expert testimony is a matter falling

within the sound discretion of the trial court, and we may reverse only upon

a showing of abuse of discretion or error of law. Id. An abuse of discretion

may not be found merely because an appellate court might have reached a

different conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous. Id. In addition, to constitute reversible error, an evidentiary

ruling must not only be erroneous, but also harmful or prejudicial to the

complaining party. Id.

10 We are mindful that the expert reports of Drs. DeCastro, Fried, and Wu were all produced by Appellee after the court-imposed and stipulated expert report deadlines had passed and the statutes of limitation had expired. Yet, Appellants lodged no objection to the tardiness of the expert reports of Drs. DeCastro and Fried. Nevertheless, unlike Dr. Wu’s expert reports, the expert reports of Drs. DeCastro and Fried did not purport to raise a new cause of action that was not set forth in the first amended complaint.

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Pursuant to P.R.E. 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant field.

Pa.R.E. 702.

The Medical Care Availability and Reduction of Error Act, 40 P.S. §

1303.101 et seq. (“MCARE”), sets forth additional requirements for expert

testimony in medical professional liability actions. Specifically, MCARE

provides:

No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.

40 P.S. § 1303.512(a). Additionally, MCARE requires that, an expert testifying

on the standard of care in a medical matter must either: (1) possess an

unrestricted physician’s license to practice medicine in any state or the District

of Columbia; or (2) be engaged in or retired within the previous five years

from active clinical practice or teaching. Id. § 1303.512(b).

MCARE further provides:

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(c) STANDARD OF CARE.— In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:

(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).

(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).

(d) CARE OUTSIDE SPECIALTY.— A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:

(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and

(2) the defendant physician provided care for that condition and such care was not within the physician’s specialty or competence.

(e) OTHERWISE ADEQUATE TRAINING, EXPERIENCE AND KNOWLEDGE.— A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.

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Id. at § 1303.512(c)-(e). Because an issue regarding an expert’s

qualifications under MCARE involves statutory interpretation, our review is

plenary. See Jacobs v. Chatwani, 922 A.2d 950, 956 (Pa. Super. 2007).

Although it is preferable that the medical expert be in the same specialty

as the defendant physician, that is not what the law requires in every case.

See Vicari v. Spiegel, 936 A.2d 503, 514 (Pa. Super. 2007) (concluding that

a board-certified oncologist was qualified under MCARE to offer testimony

regarding when a patient should be referred to him even though he did not

treat patients until after their cancer diagnosis). Rather, the “same

subspecialty” ideal contained in section 1303.512(c)(2) “includes an express

caveat, reflecting the Legislature’s decision to afford the trial court discretion

to admit testimony from a doctor with expertise in another specialty that ‘has

a similar standard of care for the specific care at issue.’” Smith v. Paoli

Mem’l Hosp., 885 A.2d 1012, 1020 (Pa. Super. 2005) (quoting Herbert v.

Parkview Hosp., 854 A.2d 1285, 1294 (Pa. Super. 2004) (emphasis in

original)).

Appellants claim that the trial court abused its discretion in permitting

Dr. DeCastro, a urologist, to provide expert testimony regarding the standard

of care applicable to Dr. Pisano, a board-certified internist practicing as a

primary care physician. Appellants point out that Dr. DeCastro is not board

certified in internal medicine and has no training in any other specialty

relevant to the practice of primary care. Appellants maintain that screening

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and referrals to specialists are the specific role of a primary care physician,

not a urologist. Appellants contend that Dr. DeCastro was not competent to

provide any testimony regarding the pertinent issue of screening for prostate

cancer. Appellants claim that the admission of Dr. DeCastro’s standard of care

testimony was prejudicial because it was determinative of the jury’s verdict

on the prostate cause of action.

The trial court considered Appellants’ challenge to the admission of Dr.

DeCastro’s testimony on the standard of care for screening and referrals and

concluded that it lacked merit. The court stated: “the experts offered were

trained in the use of medical screening tools to diagnose and treat patients

based on medical history, examination, and symptoms presented.” Trial Court

Opinion, 6/13/22, at 8.

We discern no abuse of discretion by the trial court in permitting Dr.

DeCastro to testify regarding the standard of care applicable to internists and

primary care physicians when screening for prostate cancer and interpreting

PSA test results. At trial, Dr. DeCastro was examined and cross-examined

regarding his qualifications as an expert witness. Dr. DeCastro testified that

he is a board-certified urologist and a urologic oncologist. See N.T., 10/19/21,

at 78, 82. He explained that he graduated from Columbia University Medical

School in 2004, and thereafter completed a five-year residency in urology at

Columbia University. Id. Dr. DeCastro then completed a two-year fellowship

in urologic oncology at the University of Chicago. Id. Since 2011, Dr.

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DeCastro has been an attending physician at Columbia University Medical

Center, Presbyterian Hospital, in New York. Id. at 79. Dr. DeCastro explained

that, although he spends most of his time treating patients, he holds an

academic position for which he teaches medical students and residents about

urology and performs research. Id. at 79, 82. Dr. DeCastro stated that he

spends three days per week seeing patients in clinic, and two days per week

performing surgeries. Id. at 84-85. Dr. DeCastro testified that approximately

forty percent of his clinical practice involves treating patients with prostate

issues similar to those experienced by Decedent including inter alia, PSA

issues, benign prostate hyperplasia (enlarged prostate), and prostate cancer.

See 78-79, 82, 86. Dr. DeCastro testified that he is familiar with the standard

of care applicable to evaluating adult patients with a history of benign prostate

hyperplasia, following-up on lab work for patients, recognizing signs and

symptoms of prostate cancer, and facilitating referrals to specialists such as

himself. Id. at 87-88. Dr. DeCastro testified that the standard of care is

“universal” for any physician who orders a lab, and that regardless of your

specialty, “you are taking responsibility for that lab value and that you know

its significance and the nuances of any value.” Id. at 97. Dr. DeCastro

explained, “if you take that lab, you have to interpret it and communicate with

the patient and document such communication.” Id.

Based on Dr. DeCastro’s qualifications, we discern no abuse of discretion

by the trial court in determining that he was competent to provide expert

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testimony on the standard of care at issue – the interpretation and response

to an abnormal PSA test ordered by a physician for his or her patient. The

record reflects that a significant portion of Dr. DeCastro’s practice was devoted

to such care. Accordingly, we decline to disturb the trial court’s determination.

See, e.g., Hyrcza v. W. Penn Allegheny Health Sys., 978 A.2d 961, 973-

74 (Pa. Super. 2009) (holding that an expert witness who was board certified

as a psychiatrist and neurologist was competent to provide testimony as to

the standard of care in relation to the defendant psychiatrist’s treatment of a

multiple sclerosis patient undergoing rehabilitation because a significant

portion of the expert’s practice was devoted to the specific care at issue); see

also Smith, 885 A.2d 1012, 1016 (holding that a general surgeon, an

oncologist, and an internist were permitted to testify against

gastroenterologists as to failure to order a CT scan for patient with obscure

gastrointestinal bleeding where each testified that they were actively involved

with treating patients suffering from gastrointestinal bleeding and cancers);

Campbell v. Attanasio, 862 A.2d 1282 (Pa. Super. 2004) (holding that a

psychiatrist was permitted to testify as to the negligent use of an oral sedative

by a third-year resident in internal medicine upon a patient with severe

anxiety where the witness had prescribed the particular sedative on multiple

occasions to individuals who suffered from anxiety); Gartland v. Rosenthal,

850 A.2d 671 (Pa. Super. 2004) (holding that a neurologist was qualified to

testify as to the standard of care for a radiologist reading a CT scan of the

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brain where the specific treatment at issue was the failure to report on the

possibility of a tumor and recommend an MRI).11

In their final issue, Appellants contend that the trial court abused its

discretion by granting Appellee’s motion in limine to preclude, inter alia, the

admission of evidence that in 2008, Decedent had been referred to a urologist

on two occasions for his benign prostate hyperplasia (enlarged prostate) and

refused to see a urologist. Our standard of review of a ruling on a motion in

limine is well-settled:

A motion in limine is used before trial to obtain a ruling on the admissibility of evidence. It gives the trial judge the opportunity to weigh potentially prejudicial and harmful evidence before the trial occurs, thus preventing the evidence from ever reaching the jury. A trial court’s decision to grant or deny a motion in limine is subject to an evidentiary abuse of discretion standard of review.

Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court’s decision absent a clear abuse of discretion. An abuse of ____________________________________________

11 Even if the admission of Dr. DeCastro’s testimony regarding the applicable standard of care was error, such error was harmless, as the same standard of care testimony was provided by Dr. Fried, a board-certified specialist in internal medicine and adult primary care, whose expert testimony is not challenged on appeal. See N.T., 10/20/21, at 25-26, 34-35 (wherein Dr. Fried testified that Dr. Pisano deviated from the standard of care for primary care physicians by failing to recognize that Decedent’s September 2015 PSA test result was “very abnormal,” failing to have a discussion with him regarding his abnormal test result, and failing to refer him to a urologist for diagnostic testing and treatment). Thus, Dr. DeCastro’s standard of care testimony was merely cumulative of other properly admitted evidence. See Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa. Super. 2011) (holding that, even though the trial court erred in admitting certain reports, the content of the inadmissible reports was cumulative in nature to the admissible reports and, consequently, the evidentiary error was harmless).

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discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

In addition, to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Parr v. Ford Motor Co., 109 A.3d 682, 690-91 (Pa. Super. 2014) (citations

omitted).

Evidence is relevant if “(a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Pa.R.E. 401. “All relevant evidence

is admissible, except as otherwise provided by law. Evidence that is not

relevant is not admissible.” Pa.R.E. 402. Relevant evidence may be excluded

“if its probative value is outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E.

403. “‘Unfair prejudice’ means a tendency to suggest decision on an improper

basis or to divert the jury's attention away from its duty of weighing the

evidence impartially.” Id. Cmt.

The function of the trial court is to balance the alleged prejudicial effect

of the evidence against its probative value, and it is not for an appellate court

to usurp that function. See Parr, 109 A.3d at 696. Pennsylvania trial judges

enjoy broad discretion regarding the admissibility of potentially misleading

and confusing evidence. See Daset Mining Corp. v. Industrial Fuels

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Corp., 473 A.2d 584, 588 (1984). Evidence is prejudicial not where it merely

hurts a party’s case, but where it tends to fix a decision which has an improper

basis in the minds of the jury. Id.

Appellants claim that the primary argument advanced by Appellee to

preclude the admission of Decedent’s non-compliance with the 2008 urology

referrals was the prejudicial effect of such evidence in light of certain

comments made by Dr. Pisano’s during his deposition. In those comments,

Dr. Pisano posited that, because of Decedent’s non-compliance in 2008 with

referrals to a urologist, Dr. Pisano would not have expected Decedent to

comply with such referrals at later dates. Appellants contend that, at oral

argument on Appellee’s motion in limine, Appellants agreed not to present

that particular testimony of Dr. Pisano at trial. Appellants therefore maintain

that there was no longer any basis to preclude the undisputed evidence of

Decedent’s non-compliance with urology referrals in 2008.

Appellants acknowledge that Appellee additionally claimed at oral

argument that the evidence of Decedent’s non-compliance with referrals in

2008 should be precluded because it was too remote in time. Appellants

assert that remoteness in time is not a ground for preclusion of evidence.

Appellants further argue that, because Appellee’s expert witnesses testified

that Decedent should have been under the care of a urologist and that such

care would have cured his prostate cancer, they essentially testified that

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Decedent’s compliance with his referrals to a urologist would have averted his

death.

The trial court considered Appellants’ final issue and concluded that it

lacked merit. The court reasoned:

[Appellants] sought to introduce evidence of the Decedent’s . . . refusal to see a urologist in 2008 as evidence to support speculation that Decedent would have refused treatment of a urologist or hepatologist upon learning of abnormal test results. The facts and circumstances surrounding those events are unrelated to the matter before the court. The court determined that the allowance of such evidence would result in unfair prejudice, confuse the issues, and mislead the jury.

Trial Court Opinion, 6/13/22, at 9.

We discern no abuse of discretion by the trial court in precluding the

introduction of evidence regarding Decedent’s non-compliance with referrals

to a urologist in 2008. There is no indication in the record that, had Decedent

seen a urologist in 2008, the outcome of the case would have been any

different. Even as late as 2012, Decedent’s PSA level was in the normal range.

Thus, whether Decedent did or did not see a urologist in 2008 was simply not

relevant to the issue of whether Dr. Pisano failed to appreciate the clinical

significance of Decedent’s abnormal PSA test in September 2015 and refer

him to a urologist at that time. Moreover, even if the evidence had some

limited probative value, we discern no abuse of discretion by the trial court in

determining that any such value was substantially outweighed by the danger

of unfair prejudice, confusion of issues, or misleading the jury. See Daset

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Mining Corp., 473 A.2d at 588. Accordingly, Appellants’ final issue merits no

relief.

Finally, we address Appellants’ request for a new trial limited solely to

the prostate cancer cause of action as a remedy for the improper introduction

of Dr. Wu’s testimony and the submission to the jury of the time-barred liver

cancer cause of action. In considering Appellants’ request, we are mindful of

the general verdict rule which provides that “when the jury returns a general

verdict involving two or more issues and its verdict is supported at least as to

one issue, the verdict will not be reversed on appeal.” Cowher v. Kodali,

283 A.3d 794, 804 (Pa. 2022) (quoting Shiflett v. Lehigh Valley Health

Network, Inc., 217 A.3d 225, 234 (Pa. 2019) (citation omitted)).

Elaborating on the rule, our Supreme Court has stated: “‘a defendant who fails

to request a special verdict form in a civil case will be barred on appeal from

complaining that the jury may have relied on a factual theory unsupported by

the evidence when there was sufficient evidence to support another theory

properly before the jury.’” Id. (quoting Shiflett, 217 A.3d at 234). Our

Supreme Court went on to explain:

Thus, under the rule, when a litigant fails to request a special verdict slip that would have clarified the basis for a general verdict, and the verdict rests upon valid grounds, the right to a new trial is waived. The rule promotes judicial efficiency by preventing needless retrials as well as fairness by keeping a litigant from benefiting from its own omission in failing to request a special verdict slip.

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Id. (quoting Shiflett, 217 A.3d at 234) (citations, quotations and brackets

omitted, emphasis added).

In Shiflett, as in the instant matter, the plaintiffs brought a medical

negligence action against a hospital and were later permitted, over objection,

to amend the complaint to add a new cause of action which was barred by the

statute of limitations. Following trial, a jury returned a general damage award

for the plaintiffs. On appeal, this Court determined that the trial court erred

by permitting the plaintiffs to amend the complaint to add the time-barred

cause of action and remanded for a new trial limited to damages. However,

our Supreme Court reversed, explaining that where a time-barred theory of

liability is improperly submitted to the jury, and the defendant fails to request

a clarifying special verdict interrogatory that would have obviated the need

for a new trial, the verdict will stand. See Shiflett, 217 A.3d 236; see also

Cowher, 283 A.3d at 806 (explaining that “[a] special verdict slip . . . asking

the jury to itemize the pain and suffering damages and other component parts

of the survival award would have clarified the specific amount of damages

attributable to Dr. Hayek’s testimony, obviating the need for the new trial on

the totality of damages under the Survival Act”).

In this case, unlike Cowher and Shiflett, Appellants requested a

detailed special verdict form which was submitted to, and completed by, the

jury. Accordingly, the jury in this matter specified its separate findings of

liability, causation, and damages attributable to both Appellee’s negligence

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claim against Appellants for Decedent’s prostate cancer and Appellee’s

negligence claim against Appellants for Decedent’s liver cancer. See Verdict

Sheet, 10/22/21, at unnumbered 1-5. In so doing, the jury clarified its award

of damages attributable to Dr. Wu’s testimony and the time-barred liver

cancer cause of action, thereby obviating the need for a new trial on the

prostate cancer cause of action. Therefore, as the intent of the jury is clear,

we vacate the order entering judgment, vacate and the portion of the jury’s

verdict as it relates to liability and damages against Appellants on the liver

cancer cause of action, affirm the portion of the jury’s verdict as it relates to

liability and damages against Appellants on the prostate cancer cause of

action, and remand for the trial court to enter judgment in favor of Appellees

on the prostate cancer cause of action for compensatory damages in the

amount of $1,500,000 plus delay damages.

Judgment vacated. Verdict affirmed in part and vacated in part. Case

remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/7/2023

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