Tiburzio-Kelly v. Montgomery

681 A.2d 757, 452 Pa. Super. 158, 1996 Pa. Super. LEXIS 2133
CourtSuperior Court of Pennsylvania
DecidedJuly 15, 1996
Docket3126
StatusPublished
Cited by31 cases

This text of 681 A.2d 757 (Tiburzio-Kelly v. Montgomery) 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
Tiburzio-Kelly v. Montgomery, 681 A.2d 757, 452 Pa. Super. 158, 1996 Pa. Super. LEXIS 2133 (Pa. Ct. App. 1996).

Opinions

KELLY, Judge.

This appeal is brought from an order of the Court of Common Pleas of Montgomery County granting appellant Lauren Tiburzio’s request for a new trial,1 and denying the remaining appellants’ claims for post-trial relief. We reverse in part and affirm in part.

All parties to this appeal agree to one immutable fact: appellant, Marcia Tiburzio-Kelly, delivered a baby (Lauren Tiburzio) by emergency caesarian delivery without the benefit of general or epidural anesthesia. The how, why, and wherefore of this occurrence, and the resultant damage to the appellants, is the sine qua non of this case.

On July 20, 1983, at 7:00 p.m., appellant Marcia TiburzioKelly 2 was admitted to Bryn Mawr Hospital. She was pregnant and was experiencing labor symptoms. Dr. Bruce Montgomery was the attending obstetrician. At 7:15 p.m., an initial examination of Mrs. Tiburzio-Kelly was conducted and a fetal heart rate of one hundred, sixty-four beats per minute was detected. Mrs. Tiburzio-Kelly was checked again at 8:00 p.m. [168]*168at which time a fetal heart rate of one hundred, sixty beats per minute was detected. . At 8:40 p.m., another check revealed a fetal heart rate of one hundred, twenty beats per minute, which is at the low end of a normal fetal heart rate. Because of the decline in the heart rate, a fetal monitor was placed on Mrs. Tiburzio-Kelly which could continuously monitor the fetal heart rate. By 8:47 p.m., the heart rate had dropped to between sixty and eighty beats per minute. The attending nurse immediately called Dr. Montgomery who was in the doctors’ lounge removing surgical garb which he had worn during a recently completed procedure.

Within five minutes of receiving the nurse’s call, Dr. Montgomery appeared in Mrs. Tiburzio-Kelly’s room and began a full examination. By 8:56 p.m., Dr. Montgomery had ordered Mrs. Tiburzio-Kelly to be moved to a “labor room.” In the next ten minutes, Dr. Montgomery attempted to deliver the baby vaginally. By 9:07 p.m., Dr. Montgomery called for caesarian section surgery and gave orders to call anesthesia, and two additional surgeons, as well as to prepare the “delivery room” for surgery. Mrs. Tiburzio-Kelly was placed in the “delivery room” for preparation while Dr. Montgomery prepared for surgery by “scrubbing” and donning surgical garb. By the time the patient and doctor were prepared, no anesthesiologist appeared.

Initially, Dr. Montgomery decided to wait for the anesthesiologist, but after an undetermined but nonetheless short period of time, he began the operation using local anesthesia. This decision required him to cut into Mrs. Tiburzio-Kelly while she was fully conscious, and required him to anesthetize each progressive layer of the abdomen before each incision. Lauren Rose Tiburzio was born at 9:34 p.m. Approximately seven minutes later, an anesthesiologist, Dr. Thomas Mull, arrived and administered appropriate anesthetic to permit the doctors to complete the operation on Mrs. Tiburzio-Kelly.

Lauren Rose Tiburzio was born with complications. Testimony indicated that she had suffered from oxygen deprivation during her last hours in útero. As a consequence, she suffered and continues to suffer from a seizure disorder, and has [169]*169a reduced mental capacity which borders on mental retardation (I.Q. 74).

Lauren Tiburzio and her parents brought suit against Dr. Montgomery, Dr. Mull, Bryn Mawr Hospital, and Anesthesia Associates of Bryn Mawr, asserting a number of claims ineluding but not limited to negligence, negligent infliction of emotional distress and loss of consortium. Dr. Mull was dismissed as a defendant and, after a lengthy trial, the jury returned a verdict absolving Dr. Montgomery and Anesthesia Associates of Bryn Mawr of all liability. The jury awarded Mrs. Tiburzio-Kelly twenty-five thousand dollars on her claim against Bryn Mawr Hospital, and failed to reach a final verdict on Lauren Tiburzio’s claim against Bryn Mawr Hospital. Mr. Tiburzio’s claims of loss of consortium and negligent infliction of emotional distress were denied. Upon consideration of post-trial motions, the trial court granted a new trial to Lauren Tiburzio against Bryn Mawr Hospital only.

This appeal followed in which appellants have raised the following issues:3

1) WHETHER THE TRIAL COURT ERRED IN PRECLUDING APPELLANTS FROM GOING FORWARD AGAINST DEFENDANT ANESTHESIA ASSOCIATES AS A UNIQUE AND SEPARATE ENTITY.
2) WHETHER THE TRIAL COURT ERRED IN LIMITING THE SCOPE OF APPELLANTS’ EXPERT WITNESS’ TESTIMONY REGARDING THE NEGLIGENCE OF ANESTHESIA ASSOCIATES.
3) WHETHER THE TRIAL COURT ERRED IN PRECLUDING APPELLANTS’ COUNSEL FROM CROSS-EXAMINING DEFENDANT’S EXPERT WITNESS REGARDING REPRESENTATION BY DEFENSE COUNSEL IN OTHER MATTERS.
4) WHETHER THE TRIAL COURT ERRED IN PRECLUDING APPELLANTS’ OBSTETRICS EXPERT [170]*170FROM TESTIFYING AS TO SPECIFIC TIME REQUIREMENTS FOR COMMENCING A CAESAREAN SECTION PROCEDURE.
5) WHETHER THE TRIAL COURT ERRED IN PERMITTING THE CROSS-EXAMINATION OF APPELLANTS’ OBSTETRICS EXPERT REGARDING PAST INCOME FOR HIS SERVICES AS AN EXPERT WITNESS.
6) WHETHER THE TRIAL COURT ERRED IN PRECLUDING CROSS-EXAMINATION OF DEFENDANTS’ EXPERT WITNESS REGARDING TIME ESTIMATES FOR INDUCING ANESTHESIA FOR A CAESAREAN PROCEDURE.
7) WHETHER THE TRIAL COURT ERRED IN CROSS-EXAMINING APPELLANTS’ EXPERT WITNESSES.
8) WHETHER THE TRIAL COURT IMPUGNED THE CREDIBILITY OF APPELLANTS’ TRIAL COUNSEL.
9) WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANTS’ REQUEST TO HAVE A WITNESS WHO WAS EMPLOYED BY DEFENDANT HOSPITAL DECLARED A HOSTILE WITNESS.
10) WHETHER THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY THAT NURSES EMPLOYED BY DEFENDANT HOSPITAL COULD SIMULTANEOUSLY BE ACTING AS AGENTS OF DEFENDANT DOCTORS.
11) WHETHER TRIAL COURT ERRED IN DISMISSING MR. TIBURZIO’S CLAIMS FOR LOSS OF CONSORTIUM AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
12) WHETHER THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY ON MARCIA TIBURZIO’S CLAIMS FOR “LOSS OF LIFE’S [171]*171PLEASURES, EMBARRASSMENT, AND HUMILIATION.”

There is sufficient merit to the first three issues to warrant the grant of a new trial. However, for the reasons discussed below, we find no merit to the remaining issues.

Appellants’ first two issues may be examined together. Prior to the commencement of trial the trial judge, in response to a defense motion in limine, ruled that appellants could not proceed directly against defendant Anesthesia Associates of Bryn Mawr for its negligence as a separate entity, but instead must proceed against it vicariously by establishing the negligence of its employees. The basis for the trial court’s ruling was its determination that the fair import of appellants’ expert reports did not apprise defendants of a claim against the Anesthesia Associates itself but rather criticized the actions of the individual physicians involved.4 We disagree.

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Bluebook (online)
681 A.2d 757, 452 Pa. Super. 158, 1996 Pa. Super. LEXIS 2133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tiburzio-kelly-v-montgomery-pasuperct-1996.