J-A13006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ARTIS MITCHELL, AS THE ADMINISTRATOR OF THE ESTATE OF CAROLYN MITCHELL, DECEASED, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellant

v. HIGHLAND PARK CARE CENTER, LLC, OPERATING UNDER THE FICTITIOUS NAME HIGHLAND PARK CARE CENTER AND LUTHERAN SENIORLIFE, OPERATING UNDER THE FICTITIOUS NAME ST. JOHN SPECIALTY CARE CENTER, Appellee No. 1057 WDA 2015

Appeal from the Judgment Entered August 11, 2015 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-12-000832
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.: MEMORANDUM BY OLSON, J.: FILED AUGUST 24, 2016 Appellant, Artis Mitchell, as the administrator of the estate of Carolyn Mitchell, deceased, appeals from the judgment entered on August 11, 2015. We affirm. The trial court succinctly explained the relevant, underlying facts and procedural posture of this case:

[Appellant] brought a survival action alleging thatHighland Park Care Center [(“HPCC”)] failed to create and im plement a proper treatment care plan for [Carolyn Mitchell (“Ms. Mitchell”)], and failed to promptly notify a physic ian of a significant change in [Ms. Mitchell’s] condition.J-A13006-16

- 2 - In 1992, [Ms.] Mitchell experienced cardiac arrest,resulting in a severe anoxic brain injury, which required her to need skilled nursing care on a full-time basis for the rest of her life. [Shorty thereafter, Ms. Mitchell became a re sident of HPCC, which is a skilled nursing facility in Pittsb urgh.] . . . [Appellant] claims specifically that in the weeks l eading up to February 15, 2010, [Ms.] Mitchell experienced re peated episodes of emesis, which is vomiting, that went un reported to her physician. [Appellant] further claims that said episodes of emesis led to substances entering the l ungs of Ms. Mitchell causing her to suffer aspiration pneum onia. [Appellant] further alleges that said negligence re sulted in a downward spiral in the health of Ms. Mitchell, even tually resulting in her death on February 7, 2011.

. . . This matter was initiated by the filing of a praeci pe for writ of summons on January 12, 2012. Said praecipe was followed by a complaint in civil action filed [on] September 17, 2012. . . . Prior to trial, [Appellant] settled his claims withdefendant Lutheran Seniorlife, operating under the fictitiousname of St. John Specialty Care Center. A trial commenced on March 18, 2015, lasting until March 25, 2015, at which time the jury empaneled returneda verdict for [HPCC] and against [Appellant], findingan absence of negligence on the part of [HPCC. The trial court denied Appellant’s post-trial motion and judgment o n the verdict was entered on August 11, 2015]. Trial Court Opinion, 10/1/15, at 1-3 (some internalcapitalization omitted). Appellant filed a timely notice of appeal and, on a ppeal, Appellant raises the following claims:

[1.] Did the trial court err in denying [Appellant’s] motion for judgment notwithstanding the verdict (“JNOV”) o n the issue of negligence when the verdict was such that no two reasonable minds could disagree that the verdict sh ouldJ-A13006-16

- 3 - have been rendered in favor of [Appellant]? Specifically, based upon the evidence that was offered at trial, along with the fact that the Commonwealth of Pennsylvania Department of Health (the “DOH”) specifically foundthat [HPCC] failed to promptly notify a physician of a s ignificant change, which ultimately caused Ms. Mitchell to suf fer aspiration pneumonia, the jury’s finding of “no neg ligence” is indeed such that it shocks one’s “sense of justi ce,” as the jury was charged on the issue of negligence per se. Further, the court committed an error by denying [Appellant’s] motion for JNOV on the issue of negli gence, despite the fact that [HPCC’s] own experts admittedthat [HPCC] violated applicable standards of care. The [trial] court committed an error by dismissing [Appellant’s ] claim for punitive damages at the close of [Appellant’s] case, upon [HPCC’s] motion for a directed verdict. [Appe llant] preserved this issue in his motion for post-trial relief. Based upon the evidence adduced at trial, it is clear tha t the issue of punitive damages should have been one presented to the jury. [2.] Did the trial court err in denying [Appellant’s] motion for a new trial on the issue of negligence when theverdict was against the clear and substantial weight of the evidence, particularly in light of the fact that ba sed on the evidence that was offered at trial, along with the fact that the DOH specifically found that [HPCC] failed to promptly notify a physician of a significant change, which u ltimately caused Ms. Mitchell to suffer aspiration pneumonia,the jury’s finding of “no negligence” is indeed such th at it shocks one’s “sense of justice,” especially in ligh t of the fact that the jury was charged on negligence per se. Fu rther, the [trial] court committed an error by denying [Ap pellant’s] motion for a new trial on the issue of negligence, despite the fact that [HPCC’s] own experts admitted that [H PCC] violated applicable standards of care. The [trial] court committed an error by dismissing [Appellant’s] clai m for punitive damages at the close of [Appellant’s] case , upon [HPCC’s] motion for a directed verdict. [Appellant ] preserved this issue in his motion for post-trial relief. Based upon the evidence adduced at trial, it is clear tha t the issue of punitive damages should have been one presented to the jury.J-A13006-16

- 4 -

Appellant’s Brief at 5-6 (some internal capitalizat ion omitted). We reviewed the briefs of the parties, the relevantlaw, the certified record, the notes of testimony, and the opinion of the able trial court judge, the Honorable Michael A. Della Vecchia. We conclud e that there has been no error in this case and that Judge Della Vecchia’s o pinion, entered on October 1, 2015, meticulously and accurately disposes of Ap pellant’s issues on appeal. Therefore, we affirm on the basis of JudgeDella Vecchia’s opinion and adopt it as our own. In any future filings wit h this or any other court addressing this ruling, the filing party shall atta ch a copy of the trial court opinion. Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/24/2016~~~

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... I en ":J l'-..l Plaintiff, No. GD 12-000832 ARTIS MITCHELL, as Administrator of the Estate of CAROLYN MITCHELL, Deceased, IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION Circulated 08/05/2016 03:29 PM1

Plaintiff's condition. for the Plaintiff, and failed to promptly notify a physician of a significant change in the (hereinafter "Defendant") failed to create and implement a proper treatment care plan I. BACKROUND The Plaintiff brought a survival action alleging that Highland Park Care Center from this Court's denial of Post-Trial Motions and the Judgment entered thereon. the Administrator of the Estate of Carolyn Mitchell, Deceased (hereinafter "Plaintiff") This matter comes before the Superior Court on the appeal of Artis Mitchell as Michael A. Della Vecchia, Judge 

### OPINION Defendant. HIGHLAND PARK CARE CENTER, LLC. operating under the fictitious name HIGHLAND PARK CARE CENTER,

vs. Plaintiff, 1057 WDA 2015 GD 12-000832 ARTIS MITCHELL) as the Administrator of the Estate of CAROLYN MITCHELL, Deceased, IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION2

II. PROCEDURAL HISTORY
This matter was initiated by the filing of a Praecipe for Writ of Summons filed on January 12, 2012. Said Praecipe was followed by a Complaint in Civil Action filed September 17, 2012. Following multiple sets of Preliminary Objections, Motions to Compel and rulings in response thereto, this matter was scheduled for trial. In 1992, Carolyn Mitchell experienced cardiac arrest, resulting in a severe anoxic
brain injury, which required her to need skilled nursing care on a full-time basis for the
rest of her life. The Plaintiff claims specifically that in the weeks leading up to February 15, 2010, Carolyn Mitchell experienced repeated episodes of emesis, which is vomiting, that went unreported to her physician. The Plaintiff further claims that said episodes of emesis led to substances entering the lungs of Ms. Mitchell causing her to suffer aspiration pneumonia. The Plaintiff further alleges that said negligence resulted
in a downward spiral in the health of Ms. Mitchell, eventually resulting in her death on February 7, 2011. Following a jury trial in this matter, the jury empanelled returned a verdict in favor of the Defendant and against the Plaintiff, finding specifically that the Defendant was not negligent. The Plaintiff filed for Post-Trial Relief alleging that the jury's verdict was against the weight of the evidence. On June 24, 2015, after reviewing the Briefs and record and having heard argument on said Post-Trial Motions, this writer denied the Plaintiff's Motion for Post-Trial Relief, which included the Plaintiff's request for Judgment Notwithstanding the Verdict or a new trial.3 1. The Court committed an error by denying Plaintiff's Motion for Judgment Notwithstanding the Verdict (JNOV) on the issue of negligence when the verdict was such that two reasonable minds could disagree that the verdict should have been rendered in favor of the Plaintiff. Specifically, based upon the evidence that was offered at trial, along with the fact that the Commonwealth of Pennsylvania Department of Health (the "DOH") specifically found that Highland Park failed to promptly notify a physician of a significant change, which ultimately caused Ms. Mitchell to suffer aspiration pneumonia, the jury's finding of "no negligence" is indeed such that shocks one's "sense of justice" as the jury was charged on the issue of negligence per se. Further, the Court committed an error by denying Plaintiff's Motion for JNOV on the issue of negligence despite the fact that Defendant Highland Park Care Center's own experts admitted that Highland Park Care Center violated applicable standards of care. The Court committed an error by dismissing Plaintiff's claim for The Defendant raises the following claims of err: Ill. ISSUES RAISED ON APPEAL 2015. This writer authors the following opinion in response thereto. On July 9, 2015, the Plaintiff filed a Notice of Appeal to the Superior Court of Pennsylvania. As a result, the Plaintiff was directed by Order dated July 15, 2015, to file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.C.P. 1925(b). The Plaintiff timely filed his Matters Complained of on appeal on July 30, Relief. Court entered an Order dated June 24, 2015, denying Plaintiff's Motion for Post-Trial time the jury empanelled returned a verdict for the Defendant and against the Plaintiff, finding an absence of negligence on the part of the Defendant After argument, this A trial commenced on March 18, 2015, lasti ng until March 25, 2015, at which operating under the fictitious name of St. John Specialty Care Center. Prior to trial, the Plaintiff settled his claims with defendant Lutheran Seniorlife,4 the standard of review for an order granting or denying judgment notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict. We must view the evidence in the light most favorable to the verdict winner and give him or her the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. Furthermore, judgment nov should claim: The Superior Court has clearly established the Plaintiff's burden in making said said Verdict. "shocked one's sense of justice," however, this writer was not the least bit surprised by Defendant to be against the weight of the evidence, such that the verdict would have The Plaintiff asserts that the jury's finding of 'no negligence' on the part of the 

### IV. DISCUSSION

2. The Court committed an error by denying Plaintiff's Motion for a New Trail on the issue of negligence when the verdict was against the clear and substantial weight of the evldence, particularly in light of the fact that based on the evidence that was offered at trial, along with the fact that the DOH specifically found that Highland Park failed to promptly notify a physician of a significant change, which ultimately caused Ms. Mitchell to suffer aspiration pneumonia, the jury's finding of "no negligence" is indeed such that shocks one's "sense of justice", especially in the light of the fact that the jury was charged on negligence per se, Further, the Court committed an error by denying Plaintiff's Motion for a New Trial on the issue of negligence despite the fact that Defendant Highland Park's own experts admitted that Highland Park violated applicable standards of care. The Court committed an error by dismissing Plaintiff's claim for punitive damages at the close of Plaintiff's case, upon the Defendant's Motion for Directed Verdict. Plaintiff preserved this issue in his Motion for Post-Trial Relief. Based upon the evidence adduced at trial, it is clear that the issue of punitive damages should have been one presented to the jury. punitive damages at the close of Plaintiff's case, upon the Defendant's Motion for Post-Trial Relief. Based upon the evidence adduced at trial, it is clear that the issue of punitive damages should have been one presented to the jury.5

relationship between any of the emesis events, at least until the most recently documented one on the (February) 11 1h and her pneumonia" (Trial Transcript ("Tr.") at 574). Dr. Sohnen explained convincingly to the jury that the initial chest x-rays The defense expert, Dr. Adam Sohnen stated that. "there was absolutely no February 3, 2010, and February 8, 201 O. This writer accepts that the jury was not convinced by the Plaintiff's argument as to causation. specifically. the fact that both the Plaintiff and the Defendant's experts opined that Ms. Mitchell's aspiration pneumonia developed from events in the hospital, or immediately prior to her admission, not from any negligence noted in the DOH report.
The DOH finding concerns failures following events reported January 24, 2010, Plaintiff's argument as to this point. negligence per se into the court's instructions to the jury. The jury obviously rejected The Plaintiff requested and the trial court incorporated Plaintiff's proposed charge of significant change, which ultimately caused Ms. Mitchell to suffer aspiration pneumonia. The Plaintiff believes he provided the jury with a 'smoking gun' pointing to a finding by the Commonwealth of Pennsylvania Department of Health ("DOH") specifically holding that Highland Park failed to promptly notify a physician of a Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded evidence at trial, we will not substitute our judgment for that of the finder of fact. Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.Super. 2008), citing Northeast Fence 

### & Iron Works v. Murphy Quigley Co

.. Inc., 933 A.2d 664, 668 (Pa.Super. 2007). be entered only in a clear case, where the evidence is such that no reasonable minds could disagree that the moving party is entitled to relief. Review of the denial of judgment nov has two parts, one factual and one legal:6 It was consistently the Plaintiff's position that the emesis was caused by the negligence in the defendant's choice to feed and medicate Ms. Mitchell through 

### a G-port rather than a J-port. When specifically asked whether a change in ports would have alleviated 

### Ms. Mitchell's instances of vomiting, 

### Dr. Sohnen answer was "no, absolutely
not" (Tr. at 

### 578}. The Plaintiff's expert, Dr. Bruce Kinosian opined that "l'rn pretty sure that she aspirated on the (February) 131h I which is when she developed the wheezing. Whether that developed into something or whether she had new events) l don't know. My guess is that she probably had a new event" (Tr. at 244). The Plaintiff's own expert failed to advance the theory proffered by the Plaintiff, that being; that the DOH finding that Highland Park failed to promptly notify a physician of Ms. Mitchell's change of condition caused the aspiration pneumonia, leading, if 

### not contributing to her eventual death. Further, the DOH itself later made a finding of "no harm" with regard to its earlier report of the deficiency at Highland Park Care Center concerning the lack of notification. Ms. Mitchell enjoyed additional care provided by private duty nurses. These private duty nurses were not affiliated or employed by Highland Park Care Center. The jury could have plausibly concluded that negligence on the part of said private care

nurses was 

### not attributable to Highland Park Care Center. examined following the events of emesis failed to show any signs of pneumonia and

were in fact "clear", "if she had pneumonia that was brewing or developing over those several days, you would have seen a very abnormal appearing chest x-ray" (See, Tr. at 574).7



### IV. CONCLUSION This Court found the jury's Verdict in the above captioned case to be in accord with the evidence presented at trial. For the aforesaid reasons, this writer respectfully requests the Superior Court of Pennsylvania to affirm this Court's Order dated June 24, 2015, and the judgment entered on the Ve rdict rendered

. The Plaintiff raises additional error with this Court's decision to deny a request made by the Plaintiff for a charge on punitive damages. As the Superior Court is well
aware, "punitive damages are awarded only for outrageous conduct, that isl for acts done with a bad motive or with a reckless I ndifference to the interests of others

. Thus, the Pennsylvania rule allows the awarding of punitive damages when the act is done
with reckless indifference as well as with bad motive (Focht v

. Rabada, 268 A.2d 157, 159 (Pa. Super. 1970), citing , Chambers v. Montgomery, 192 A.2d 355 (Pa. 1963)). This writer finds this case completely devoid of bad motive or reckless indifference

. Only 'false charting' assertions made by the Plaintiff could possibly be construed as a basis for punitive damages. Presumably, the jury found that any discrepancies were merely mistakes or inaccuracies within the medical charting. In light of the fact that the jury found that the Defendant was not negligent, any charge on punitive damages was not warranted.