J-A07031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID WARD AND WENDIE WARD 

Appellants

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

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 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, West 

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). 
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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 negligence 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 suffered 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 discharged 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

variety 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). 

Trial commenced on April 9, 2021. Beginning with their opening 

statements, both parties made light of Mr. Ward’s preexisting medical 

conditions. Appellants’ attorney’s opening statement addressed these 
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conditions as follows: 

What I will tell you about [Mr. Ward] is he was not in perfect 

health. Like many gentlemen 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 couple 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 were 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 with a charging conference. Appellants’ attorney 

requested that the court provide the jury with Pennsylvania Suggested 
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Standard Civil Jury Instruction 7.702 pertaining to preexisting conditions. 

Appellees’ attorney argued that such an instruction was unnecessary, and the 

court agreed. 

Following the conference, the court charged 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 defendant] 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). 
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no.” (Id.) The court accepted 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 Cousineau’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. Ward’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 claiming

that the court erred by failing to provide a Section 7.70 instruction. The 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. The court ordered Appellants to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal, and Appellants 

timely complied. 

Appellants now raise three issues for our review. 

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 commit an error of 
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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 controlled 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 but 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 assert 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 granted 
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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 

challenges to jury instructions: 

[O]ur scope of review is to determine whether the trial court 

committed clear abuse of discretion or error of law 

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 is 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 adopted 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, Appellants 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 marks omitted). 
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preparing a proper charge.” Jeter v. Owens-Corning Fiberglas Corp., 716 

A.2d 633, 636 (Pa.Super. 1998) (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 take 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 brought 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. The jury later 

returned a verdict finding that the appellee was negligent, but the negligence 

was not a factual cause of the appellant’s injuries. The jury did not reach the 

question of damages. 

On appeal, the appellant argued that the court committed reversible 
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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.” 

This Court has previously ruled that when juries are given 

incomplete instructions, a new trial is required. Jury 

instructions 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 trial 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 definition 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. 
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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 been 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, Nurse 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 principles underpinning the suggested 

instruction. Specifically, the court instructed 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. Within the context of this 

particular trial, “unusual or unexpected” results necessarily referred to the 

interplay between Mr. Ward’s preexisting conditions and his injuries from the 

stress test. Thereafter, the court further embraced the principles of Section 

7.70 in its response 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 full 
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extent of damages that they inflicted. See Lebesco, supra. 

Regarding Appellants’ argument 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 situation 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 circumstance 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 was no omission in 

the jury charge that amounted 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. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/3/2022