Reithmeier v. Bogucki

62 Pa. D. & C.4th 82, 2001 Pa. Dist. & Cnty. Dec. LEXIS 312
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedSeptember 20, 2001
Docketno. 3514
StatusPublished

This text of 62 Pa. D. & C.4th 82 (Reithmeier v. Bogucki) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reithmeier v. Bogucki, 62 Pa. D. & C.4th 82, 2001 Pa. Dist. & Cnty. Dec. LEXIS 312 (Pa. Super. Ct. 2001).

Opinion

JONES II, J.,

The within matter is a medical malpractice action arising from an al[84]*84leged failure by defendants to properly accommodate plaintiff’s latex allergy during surgery. At the conclusion of a jury trial on March 21, 2001, the jury returned a defense verdict. Plaintiff filed post-trial motions on April 2, 2001, which were denied by this court on My 25, 2001. The within appeal followed, wherein plaintiff is re-asserting that this court erred in: (1) failing to fully reinstruct the jury on liability regarding Frankford Hospital when they requested the same and again when they asked for a second time; (2) permitting defendants’ experts to testify beyond the scope of their expert reports, including the theory of “pneumoperitoneum” as a cause of decreased blood pressure; (3) limiting plaintiff’s cross-examination of defendant Frankford Hospital’s witness, Barbara Burch, on testimony elicited under oath at the evidentiary hearing, of which she was a participant and witness; (4) limiting plaintiff’s cross-examination of defendant’s expert Sandra Larson R.N., on the basis for her opinions regarding when the standard of care required hospitals to have a latex policy; and, (5) impermissibly allowing, over objection, defense counsel Robert Fortin to argue that plaintiff was “attempting to take money away from the defendant Alfred R. Bogucki M.D.” See attachment “A.”1

DISCUSSION

Plaintiff first asserts that the trial court erred in failing to completely reinstruct the jury on liability when they [85]*85requested the same and again when they asked for a second time. See attachment “A,” ¶¶1 and 2.

During a sidebar conference on this issue, plaintiff’s counsel asserted that the entire liability instruction should be read, including negligence and adverse inference. 'Counsel for defendant Frankford Hospital contended that only those portions of the liability charge dealing specifically with Frankford Hospital should be read. Upon reviewing the proposed charges in conjunction with the evidence presented and the jury’s inquiry, this court informed counsel that it would reinstruct on legal cause and ostensible agency. In response, plaintiff’s counsel further asserted that said instructions needed to be prefaced by a negligence definition and put into context of the corporation’s role with regard to legal cause so that the jury did not think the instruction pertained only to the doctor. This court declined to do so and ruled as follows:

“Counsel, counsel, what I’m suggesting to you is clearly at this point the jury is not going to throw out everything else that I readjust because I’m going to read the law on ostensible agency and legal cause and corporate status. I can’t fathom that that would happen and I certainly can’t fathom that as a matter of law, that is in any way error.” N.T. 3/20/01, pp. 16-17.

The following then occurred:

“Now, I have reviewed what has been marked as jury exhibit no. 8, which reads as follows: ‘Could you please restate the charges to us regarding the liability of Frankford Hospital.’ Members of the jury, I shall endeavor to answer this question, but because I cannot read your minds, I’m going to answer it as best I can with [86]*86specific instructions. If these instructions do not suffice, do not cover exactly what it is that you intended, please, all you need do is write another request being more specific, that’s all. All right. I shall give you three instructions and also keep in mind that as you are aware because this is a very astute jury, I gave a lot of instructions, a lot of them are generic so that they would apply to Frankford Hospital as well, but these are the ones that I think you want to hear. If not, again, all you need to do is send me another missive.” N.T. 3/21/01, pp. 13-14.

This court then proceeded to reinstruct the jury on the status of the hospital, legal cause and ostensible agency. See N.T. 3/21/01, pp. 14-15.

In Smick v. City of Philadelphia, 161 Pa. Commw. 622, 638 A.2d 287 (1994), appeal denied, 539 Pa. 660, 651 A.2d 546 (1994), the court set forth the standard to be applied regarding requests by a jury for reinstruction or clarification:

“Where a jury returns on its own motion and indicates confusion, the court has the duty to give such additional instructions on the law as the court may think necessary to clarify the jury’s doubt or confusion. . . . This rule commits to the sound discretion of the trial judge the scope of such additional instructions as he or she decides to give to a jury that has expressed confusion.” Id. at 631, 638 A.2d at 291.

In the instant matter, this court’s ruling was in complete accordance with the foregoing standard. Additional, yet very specific, instructions were given in response to what this court believed the jury was asking for. Moreover, the court invited the jury to subsequently seek fur[87]*87ther clarification, should the same be necessary. The jury did in fact return with a follow-up question: “Are the charges specific to the defendant’s negligent use of latex or are the charges negligence in general?” See N.T. 3/ 21/01, p. 16. Upon hearing the question, defense counsel for Dr. Bogucki asked for a mistrial on the basis that “the jury has demonstrated that they can’t reach a conclusion and ... to let them go on any longer is going to be prejudicial frankly to both sides.” N.T. 3/21/01, p. 17. Counsel for the plaintiff asserted that a mistrial was not proper and that instead, the jury should simply be instructed to recall the testimony they heard during trial. See N.T. 3/21/01, p. 18. Pursuant to language agreed upon by, and between, this court and counsel, the jury was informed that the court was unable to answer their question and that they should decide all questions of fact and then apply the law as instructed. N.T. 3/21/01, pp. 21-22.

Despite the fact that this court addressed the jury’s follow-up question in essentially the same manner recommended by plaintiff, plaintiff now asserts that the nature of the jury’s inquiry regarding latex use/negligence, combined with the fact that the jury was then deadlocked as to one defendant (ultimately returning with a defense verdict), necessarily shows that they were confused, thereby causing them to reach the wrong result. Clearly, the record does not support such a theory.

Accordingly, plaintiff’s first issue is without merit.

Plaintiff’s next contention on appeal is that this court erred in limiting her counsel’s cross-examination of defendant Alfred R. Bogucki M.D., regarding the location [88]*88of the missing operative note and that this court erred in limiting cross-examination of defendants’ expert witnesses on the substance of their testimony. See attachment “A,” ¶¶3 and 4. Inasmuch as these issues were not briefed or argued for purposes of post-trial motions, the same must be deemed waived on appeal. See plaintiff’s brief in support of motion for post-trial relief; N.T. 7/24/ 01, pp. 2-10.

In Bryantv. Girard Bank, 358 Pa. Super. 335, 517 A.2d 968 (1986), it was held that failure to raise, suggest or brief issues in post-trial motions results in waiver for failure to preserve. Similarly, in Kraus v. Taylor,

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Bluebook (online)
62 Pa. D. & C.4th 82, 2001 Pa. Dist. & Cnty. Dec. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reithmeier-v-bogucki-pactcomplphilad-2001.