J

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

DAVID WARD AND WENDIE WARD

Appellant s

v.
WEST GROVE HOSPITAL COMPANY, LLC, D/B/A JENNERSVILLE REGIONAL HOSPITAL AND WEST GROVE CLINIC COMPANY, LLC, D/B/A CARDIOLOGY ASSOCIATES OF JENNERSVILLE, WEST GROVE HOSPITAL CORPORATION AND PAULINE COUSINEAU

Appellees : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1756 EDA 2021 Appeal from the Judgment Entered July 23, 2021 In the Court of Common Pleas of Chester County Civil Division at No(s): 2017

- 05212

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JUNE 3, 2022
Appellants, David and Wendie Ward , appeal from the judgment entered

in the Chester County Court of Common Pleas , in favor of Appellees, West
Grove Hospital Company, LLC, d/b/a/ Jennersville Regional Hospital and West
Grove Clinic Company, LLC, d/b/a/ Cardiology Associates of Jennersville, W est
Grove Hospital Corporation and Pauline Cousineau , 1 in this negligence action

.

_________________ __________ ______ ____ _______

1 “At the start of trial, the parties had removed Nurse Cousineau as an individual defendant and agreed that she was the agent of the corporate defendants and was acting in the course and scope of such agency.” (Trial Court Opinion, filed September 1, 2021 , at 2 n.1).J

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We affirm.

The trial court opinion set forth the relevant facts of this case as follows.
[Appellants] brought this action for professional liability by filing a complaint on May 16, 2017. The operative complaint, which is the third amended complaint, was filed January 8, 2018 and alleges that [Appellants] suffered injuries and damages due to the negligen ce of [Appellees]

. The events leading to [Appellants’] cause of action began on June 8, 2015 , when Mr. Ward presented to the Emergency Department at Jennersville Regional Hospital with complaints of chest pains. It was determined that Mr. Ward had not su ffered an acute coronary event, but he was admitted for observation. Testing was administered, which included a treadmill stress test conducted by

... Pauline Cousineau, a nurse practitioner ( “ Nurse Cousineau ” ). Mr. Ward wore hospital socks at the start of the test that came off while he was on the treadmill. Nurse Cousineau nonetheless proceeded and at the conclusion of the treadmill portion of the test, Mr. Ward ’ s feet were blistered. Mr. Ward received treatment for his wounds and in time he
was dischar ged from the hospital.
Mr. Ward alleged that over the ensuing days and weeks, he began to develop severe, burning pain in his feet and that over time the pain worsened and migrated to his upper extremities. Mr. Ward received medical treatment from a
va riety of practitioners, including family practice, neurology, pain management, and specialists in the diagnosis and treatment of chronic regional pain syndrome/reflex sympathetic dystrophy ( “ CRPS ” ). Mr. Ward contended at trial that he had suffered various injuries as a result of [Appellees’] negligence in performing the stress test in hospital socks and then bare feet, including blistering of the feet, the development of CRPS and psychological injury.
(Trial Court Opinion at 1

- 2).

T rial commenced on April 9, 2021. Beginning with the ir opening

statements, both parties made light of Mr. Ward’s preexisting medical
conditions. Appellants’ attorney’s opening statement addressed theseJ

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conditions as follow s:

What I will tell you about [Mr. Ward] is he was not in perfect health. Like many gentlem e n in their 50s, he had diabetes. You already heard about that in jury selection. He had diabetes. No doubt about it. He had high blood pressure. He had a cou ple hernia surgeries. He had, what I’m going to tell you, was a bad back.
In the early 90s, he had surgery because his back was bad, and he had what they call radiculopathy, radiating pain down his large [extremities]. In [1993], he had surgery. From [1993] up until present, he hadn’t had radiculopathy. Surgery took care of that, but he still had a bad back. No doubt about it. He took Vicodin for years, not a lot of it, but he took it when he needed it, no doubt about it, for his bad back.
(N.T. Trial, 4/9/21, at 8).
During trial , both parties ’ experts opined about the relationship between
Mr. Ward’s preexisting conditions and the injuries he suffered during the

treadmill stress test. Appellants’ experts posited that Mr. Ward’s preexisting
conditions caused him to suffer injuries during the stress test that w ere worse
than could be expected. Appellees’ experts testified that Mr. Ward’s
preexisting conditions , rather than the stress test, predisposed him to
developing CRPS.
On April 19, 2021 , Appellees rested their case, and the court
immediately proceeded w ith a charging conference. Appellants’ attorney
requested that the court provide the jury with Pennsylvania SuggestedJ

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Standard Civil Jury Instruction 7.70 2 pertain ing to preexisting conditions.
Appellees’ attorney argued that such an instruction was unn ecessary , and the

court agreed

. Following the conference , the court charge d the jury

. At the conclusion
of the charge, Appellants’ attorney made a formal, on

- the

- record objection to
the court’s omission of a Section 7.70 instruction. ( See N.T. Trial, 4/19/21,
at 165). During deliberations, the jury submitted the following question: “Is
the harm in Question Number 2 limited to CRPS?” 3 (N.T. Trial, 4/20/21, at
2). The court discussed the question with counsel. Appellants’ attorney
responded, “I think the simple and concise answer to that question would be

_________________ __________ ______ ____ _______

2 Section 7.70 provides:

A plaintiff who has a preexisting [physical] [psychological] condition can recover damages if the defendant ’ s negligence:

* * *
[(1) made worse a preexisting condition. In this regard, [name of defendan t] can be held responsible only for the harm or the aggravation of a preexisting

... condition that you find was factually caused by [name of defendant] ’ s negligence[; and]
(2) factually caused harm worse than expected because of the plaintiff's preexisting condition.]
Pa.SSJI (Civ) § 7.70.

3 On the verdict slip, the second question stated: “Was the negligence of [Nurse] Cousineau ... a factual cause of any harm to the plaintiff ?” (Verdict Slip, filed 4/20/21, at 1).J

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no.” ( Id. ) The court accepte d this suggestion and indicated, “I’m going to
answer it no.” ( Id. at 3).
On April 20, 2021 , the jury returned its verdict. The jury specifically

found that Nurse Cousineau was negligent. ( See Verdict Slip at 1). The jury

also found that Nurse Cousin eau’s negligence was a factual cause of harm to
Appellants. On the verdict slip, however, the jury included a handwritten
notation explaining its conclusion that Nurse Cousineau’s negligence : “Was a
factual cause of harm in the form of blisters to [Mr. Wa rd’s] feet. Was not a factual cause of harm in the form of CRPS.” ( Id. ) Consequently, the jury
awarded $20,000.00 to Mr. Ward and $0.00 to Mrs. Ward for her related claim

of loss of consortium

. On April 29, 2021, Appellants timely filed a post

- trial motion claim ing

that the court erred by failing to provide a Section 7.70 instruction. T he court

denied Appellants’ post

- trial motion on July 13, 2021, and Appellants filed a
praecipe to enter judgment on July 23, 2021 . On July 26, 2021, Appellants
timely filed a notice of appeal. T he c ourt ordered Appellants to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal , and Appellants
timely complied

. Appellant s now raise three issues for our rev iew.

Did the trial court abuse its discretion or commit an error of law in refusing to instruct the jury as to preexisting conditions in accordance with SSJI 7.70, which controlled the outcome of the case?

Did the trial court abuse its discretion or co mmit an error ofJ

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- law in denying [Appellants’] post

- trial motion for a new trial on damages due to its failure to instruct the jury as to preexisting conditions as set forth in SSJI 7.70, which controlled the outcome of the case?
In the alternative, did the trial court abuse its discretion or commit an error of law in denying [Appellants’] post

- trial motion for a new trial on causation and damages due to its failure to instruct the jury as to preexisting conditions as set forth in SSJI 7.70, which control led the outcome of the case?
(Appellants ’ Brief at 2

- 3 ).
Appellants ’ claims are related, and we address them together.
Appellants emphasize the experts’ testimony that Mr. Ward’s “preexisting

medical conditions predisposed him to develop CRPS , and his injuries would

not have been so severe b ut for his preexisting conditions

. ” ( Id. at 23). Given
this testimony , Appellants contend that a Section 7.70 instruction was “relevant and necessary to explain to the jury that [Appellants were] entitled
to recover damages if [Appellees’] negligence ‘factually caused harm worse
than expected because of the plaintiff’s preexisting condition

. ’” ( Id. ) (quoting
Pa.SSJI (Civ) § 7.70 ). Relying on Gorman v. Costello , 929 A.2d 1208
(Pa.Super. 2007), Appellants a ssert that the trial court’s failure to provide the
requested instruction constituted a fundamental error that controlled the

outcome of this case. Appellants conclude that the court should have grantedJ

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their post

- trial motion, and they are entitled to a new trial as to damages. 4
We disagree.
The following scope and standard of review apply to our review of
challenge s to jury instructions:

[O]ur scope of review is to determine whether the trial court committed clear abuse of discretion or error of la w controlling the outcome of the case. Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. A charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error. A reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there i s a prejudicial omission of something basic or fundamental. In reviewing a trial court ’ s charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety.

Frisch v. James River Insurance Company , 265 A.3d 765, 773 (Pa.Super.
2021) (emphasis omitted) (quoting McManamon v. Washko , 906 A.2d
1259, 1271 (Pa.Super. 2006), appeal denied , 591 Pa. 736, 921 A.2d 497
(2007)). Additionally, our Supreme Court “ has never adopt ed the
Pennsylvania Suggested Standard Jury Instructions, which exist only as a
reference material available to assist the trial judge and trial counsel in

_________________ __________ ______ ____ _______

4 In the alternative, A ppellants suggest that they are entitled to a new trial on causation and damages “because those issues are intertwined and the issue of liability has neither been fairly determined nor is free from doubt.” (Appellant’s Brief at 31) (internal quotation mar ks omitted).J

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preparing a proper charge.” Jeter v. Owens
- Corning Fiberglas Corp. , 716
A.2d 633, 636 (Pa.Super. 19 98) (quoting Commonwealth v. Smith , 548 Pa.
65, n.11, 694 A.2d 1086, 1094 n.11 (1997)).
In negligence cases, “ [t] he tortfeasor must take his victim as he finds

him. ” Fretts v. Pavetti , 422 A.2d 881, 885 (Pa.Super. 1980).

[B] ecause a tortfeasor must t ake the victim as he finds him, the tortfeasor is liable for the full extent of the victim ’ s injuries. Thus, a tortfeasor remains responsible for the victim ’ s injuries, even if the victim ’ s particular sensibility resulted in more harm than the tortfeasor could have foreseen.
Lebesco v. Southeastern Pennsylvania Transp. Authority , 380 A.2d 848,
852 n.2 (Pa.Super. 1977).

In Gorman

, supra , this Court addressed a similar issue regarding the
propriety of jury instructions in a negligence case. Specifically, the appellant
was injured after her vehicle was struck by the appellee’s vehicle. The
appellant brough t a negligence action against the appellee, and the matter
proceeded to trial. Following the jury charge, the parties requested that the
court provide an additional instruction on “the point of factual cause.”
Gorman, supra at 1211. In response, the court read a portion of
Pennsylvania Suggested Standard Civil Jury Instruction 3.15

. T he jury later
returned a verdict finding that the appellee was negligent, but the negligence
was not a factual cause of the appellant’s injuries. T he jury did not reach the
question of damages.
On appeal, the appellant argued that the court committe d reversibleJ

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error by reading only a portion of the suggested instruction on factual
causation. This Court agreed:

Our review of the transcript indicates that the trial court read the instruction as far as the first phrase of the bracketed portion of the third paragraph, i.e. , “Use the following if you have not already used Instruction 3.00,” and, without reviewing the definition that followed, concluded that there was no need to continue with reading SSJI 3.15 to the jury because it had already provided the jury with SSJI 3.00. Thus, according to the SSJI itself, the jury was not fully instructed as to the definition of “factual cause.”

T his Court has previously ruled that when juries are given incomplete instructions, a new trial is required. Jury i nstructions must contain correct definitions of legal terms.
While we recognize that the SSJI are not binding on trial courts, the SSJI are nonetheless instructive. In the case sub judice , a complete definition of factual cause was available to the tri al court both from SSJI Civ 3.15 as well as from the proposed jury instructions submitted to the court prior to the commencement of the trial. The trial court simply omitted the definition from its instruction. We determine that without a complete defini tion of factual cause, the jury was lacking an essential tool needed to make an informed decision based on correct and complete legal principles relevant to its verdict on the issue of damages.

Id. at 1213 (internal citations omitted)

. Instantly, the court denied Appellants’ request for a Section 7.70
instruction. The court subsequently charged the jury as follows:

Now, you must decide whether Nurse Cousineau was negligent. If you decide that she was, then you must decide whether her negligence was a factual cause of the plaintiff’s injuries. If you so decide, you must then decide the amount of damages the plaintiff sustained as a result of her negligence.J

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- Now, in order for the plaintiff to recover in this case, Nurse Cousineau’s negligent conduct must have been a factual cause in bringing about harm. The conduct is a factual cause of harm when the harm would not have occurred [but for] the conduct.
To be a factual cause, the conduct must have be en an actual, real factor in causing the harm, even if the result is unusual or unexpected. A factual cause cannot be an imaginary or fanciful factor having no connection, or only a[n] insignificant connection, with the harm.
To be a factual cause, Nur se Cousineau’s conduct need not be the only factual cause. The fact that some other causes concur with the negligence of Nurse Cousineau in producing an injury does not relieve her from liability , as long as her or her own negligence is a factual cause of the injury.
(N.T. Trial, 4/19/21, at 145

- 46) (emphasis added)

. Although the court’s charge did not include a verbatim recitation of
Section 7.70, the court addressed the principle s underpinning the suggested

instruction . Specifically, the court inst ructed that Nurse Cousineau’s conduct
could be a factual cause of Mr. Ward’s harm, even if the result was unusual or
unexpected. See Fretts, supra ; Lebesco, supra

. With in the context of this
particular trial, “unusual or unexpected” results necessarily r eferred to the
interplay between Mr. Ward’s preexisting conditions and his injuries from the

stress test

. The reafter, the court further embraced the principles of Section

7.70 in it s respon se to the jury’s question about whether the harm in this case
was limited to CRPS. ( See N.T. Trial, 4/20/21, at 2

- 3 ). By accepting
Appellants’ attorney’s recommendation and answering this question in the
negative, the court reinforced the notion that Appellees were liable for the fullJ

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extent of damages that they in flicted. See Lebesco, supra

. Regarding Appellants ’ argu ment that the omission of a Section 7.70

instruction is akin to the fundamental error at issue Gorman , the instant case
is distinguishable

. Gorman addressed a situation where the court provided

an incomplete definition for a relevant legal principle. Here, we cannot say
that the instruction provided a similarly incomplete description of the relevant
legal principles . Further, the instant case differs from Gorman because it

does not involve a situa tion where the jury did not award damages. Here , the
jury determined that Nurse Cousineau’s negligence was a factual cause of
some compensable harm. Thus, to the extent that Section 7.70 serves the
function of informing a jury about a particular circumst ance where it can award
damages , the absence of a verbatim recitation of Section 7.70 did not deny
Appellants the recovery of some damages.
Based upon the foregoing, we conclude that there wa s no omission in

the jury charge that amount ed to a fundamental error. See Frisch, supra

. Accordingly, the court did not abuse its discretion or commit an error of law
that controlled the outcome of this case, and we affirm. Id.
Judgment affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/ 3/2022