J-A31033-17

2018 PA Super 16

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* Former Justice specially assigned to the Superior Court.

ANITA E. TONG-SUMMERFORD, AS 

ADMINISTRATOR OF THE ESTATE 

OF MARVIN JEROME SUMMERFORD, 

DEC.

v.

ABINGTON MEMORIAL HOSPITAL 

AND RADIOLOGY GROUP OF 

ABINGTON, P.C. AND KRISTIN L. 

CRISCI, M.D.

APPEAL OF: ABINGTON MEMORIAL 

HOSPITAL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3114 EDA 2016

Appeal from the Judgment Entered September 2, 2016

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): No. 2010-35494

ANITA E. TONG-SUMMERFORD, 

ADMINISTRATOR OF THE ESTATE 

OF MARVIN JEROME SUMMERFORD

v.

ABINGTON MEMORIAL HOSPITAL, 

RADIOLOGY GROUP OF ABINGTON, 

P.C., VALERIE BONICA, D.O. AND 

KRISTIN L. CRISCI, M.D.

APPEAL OF: RADIOLOGY GROUP OF 

ABINGTON, P.C., AND KRISTIN L. 

CRISCI, M.D.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3310 EDA 2016

Appeal from the Judgment Entered September 2, 2016

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): No. 2010-35494

BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
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OPINION BY STEVENS, P.J.E.: FILED JANUARY 30, 2018

In these consolidated appeals, Appellants Abington Memorial Hospital

(hereinafter “AMH”); Kristin L. Crisci, M.D. (hereinafter “Dr. Crisci”); and 

Radiology Group of Abington, P.C. (hereinafter “RGA”) (hereinafter 

collectively, at times, “Appellants”) appeal from the judgment entered in the 

Court of Common Pleas of Montgomery County on September 2, 2016, at 

which time the trial court denied their respective post-trial motions, molded

the verdict of $5,000,000 in favor of Anita E. Tong-Summerford, as 

administrator of the estate of Marvin Jerome Summerford, deceased, 

(hereinafter “Appellee”) to add delay damages in the amount of $947,157.53, 

and ordered the delay damages to be apportioned between the Wrongful 

Death Act and Survival Act claims in the same proportionate allocation as in 

the verdict: 30% ($284,147.26) to the Wrongful Death Act claim and 70% 

($663,010.27) to the Survival Act claim. Upon our review, we affirm. 

The trial court set forth the facts and procedural history herein as 

follows: 

On November 30, 2008, Marvin Summerford, age 88, was 

transferred to the emergency department of Abington Memorial 

Hospital (hereinafter, "AMH" or the "Hospital") from a long-term 

care facility. Mr. Summerford's past medical history included 

dementia, hypertension, congestive heart failure, and pulmonary 

insufficiency. On December 1, 2008, Mr. Summerford suffered 

cardiac arrest secondary to pneumonia, and a code was called due 

to pulseless electrical activity, decreased heart rate, and low blood 

pressure. Mr. Summerford survived and was transferred to the 

ICU.

On December 2, 2008, a feeding tube was inserted and an 

order was placed for an x-ray to confirm proper placement.1 The 
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x-ray revealed that the tube had been inadvertently inserted into 

the lung and was therefore removed. The feeding tube was reinserted, and another x-ray was ordered to confirm proper 

placement. Again, the feeding tube was not properly placed.

On the next day, December 3, 2008, Valerie Bonica, D.O., 

an AMH resident, inserted a new feeding tube into Mr. 

Summerford. Dr. Bonica ordered a portable chest x-ray to confirm 

proper placement of the tube at 3:55 p.m. In response to this 

order, x-ray technologist Jillian Nickel, an AMH employee, 

performed a portable x-ray at 4:53 p.m. capturing the lower chest 

and abdomen.2 This image was interpreted by Kristin Crisci, M.D., 

a radiologist, who incorrectly read the study as showing 

termination of the feeding tube in decedent's stomach when, in 

fact, it terminated in Mr. Summerford's left lung. Dr. Crisci signed 

her report at 5:33 p.m. She did not order additional imaging. In 

reliance upon Dr. Crisci's report, Dr. Bonica ordered 

administration of a feeding solution (Jevity) at 10 cc's per hour for 

the first eight hours. The first feed was administered at 

approximately 11:00 p.m. on December 3, 2008. From 11:00 

p.m. to 7:00 a.m. the next morning, 50 cc's of Jevity and 420 cc's 

of flush was administered through the feeding tube into Mr. 

Summerford's lung.

Mr. Summerford's condition deteriorated. At 4:38 a.m. on 

December 4, 2008, Dr. Bonica placed a STAT order for portable 

chest x-ray to aid in the diagnosis/treatment of pneumonia. The 

x-ray was completed at 4:46 a.m. but was not analyzed by a 

radiologist until 8:13 a.m., at which time the radiologist 

recognized the feeding tube was positioned in Mr. Summerford's 

left lung. By this time, Mr. Summerford had already been 

pronounced dead at 7:11 a.m. on December 4, 2008.

After a five-day jury trial, the jury returned a verdict on May 

13, 2016 in favor of [Appellee] and against [Appellants] AMH and 

Dr. Crisci/Radiology Group of Abington, P.C. (hereinafter, "Dr. 

Crisci")3in the total sum of $5,000,000 ($1.5 million for the 

wrongful death claim and $3.5 million for the survival action 

claim). The jury apportioned liability as follows: AMH 25% and Dr. 

Crisci 75%. The verdict was molded to add Rule 238 delay 

damages for [Appellee] and against [Appellants], resulting in a 

molded verdict in the amount of $5,947,157.53.4

AMH and Dr. Crisci each filed timely motions for post-trial 

relief seeking judgment n.o.v., a new trial, and remittitur. 

Following oral argument, on September 2, 2016 this court denied 

[Appellants'] post-trial motions, molded the verdict, and entered 

judgment on the jury verdict in favor of [Appellee] and against 
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[Appellants]. Thereafter, AMH and Dr. Crisci filed timely appeals,5

which were consolidated on November 7, 2016 by Order of the 

Superior Court. On October 4, 2016, the court ordered defendants 

to file a concise statement of errors pursuant to Pa. R.A.P. 

1925(b).

____

1 The feeding tube is supposed to be inserted into the esophagus 

and end up in the stomach. However, due to the close proximity 

of the esophagus and trachea in the back of the throat and the 

difficulty visualizing the proper placement of the feeding tube for 

insertion, occasionally the feeding tube is inadvertently placed in 

the trachea instead of the esophagus. Accordingly, it is necessary 

that an x-ray be obtained to confirm proper placement of the tube 

into the stomach, as opposed to the lung, before feeding solution 

is administered through the tube. All parties agreed that it was 

not negligence for a feeding tube to be inadvertently inserted into 

the trachea instead of the esophagus. N.T. 05.09.16 (a.m.), p. 19.

2 There was disagreement whether the image captured by the 

portable x-ray was an abdominal study or a lower chest study. Dr. 

Crisci testified that notwithstanding Dr. Bonica's order for a chest 

x-ray, the technologist performed an abdominal study. N.T. 

05.10.16 (p.m.), p. 93. [Appellee’s] expert Dr. Igidbashian 

testified that it was an abdominal study. N.T. 05.10.16 (a.m.), p. 

95. However, AMH's expert, Dr. Hani Abujudeh, testified that," ... 

this was not a chest x-ray. It was not an abdominal x-ray. It was 

a hybrid x-ray, between a chest and an abdomen." N.T. 05.11.16 

(p.m.), p. 144.

3

It was stipulated that Dr. Crisci was an employee/agent of 

Radiology Group of Abington, P.C. ("RGA"). By agreement of all 

parties, Dr. Crisci and RGA appeared together on the verdict 

sheet. N.T. 05.12.16 (p.m.), p. 89-91. 

4 [Appellants] do not raise any issue on appeal regarding the 

addition of delay damages.

5AMH appeal Docket Number 3114 EDA 2016; Dr. Crisci appeal 

Docket Number 3310 EDA 2016. 

Trial Court Opinion, filed 12/29/16, at 1-3. 
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On October 18, 2016, Dr. Crisci and RGA filed a timely Concise 

Statement of Errors Complained of on Appeal wherein they raised ten (10) 

issues. On October 25, 2016, AMH filed its Statement of Matters Complained 

of on Appeal wherein it also set fourth ten (10) issues. 

In their brief, Dr. Crisci and RGA raise the following Statement of 

Questions Presented: 

A. Should the trial court have entered a judgment 

notwithstanding the verdict in favor of [Dr.] Crisci because 

[Appellee] failed to prove, by competent and sufficient 

evidence, her prima facie case of negligence against her?

B. Whether the trial court erred in denying Appellants' Motion 

for a Non-Suit?

C. Whether the trial court erred in denying a new trial on the 

basis of highly inflammatory and unfairly prejudicial 

statements made by Co-[Appellants’] radiology expert, Hani 

Abujudeh, M.D.?

D. Whether the trial court abused its discretion and/or made 

an error of law in permitting [co-Appellants’] radiology 

expert, Hani Abujudeh, M.D., to testify to issues relating to 

the standard of care of Dr. Crisci, beyond the opinions 

testified to by [Appellee’s] expert, which resulted in 

prejudice to Dr. Crisci?

E. Whether the trial court committed an abuse of discretion 

and/or an error of law in only granting in part the Motion in 

Limine filed by Crisci to preclude [Appellee’s] expert, Vartan 

Igidbashian, D.O., from testifying to causation issues 

outside his expertise?

F. Whether the trial court committed an abuse of discretion 

and/or an error of law in denying a new trial because of 

improper statements made by [Appellee’s] counsel?
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G. Whether the trial court committed an abuse of discretion 

and/or an error of law in denying Appellants' Motion for 

Post-trial relief on the basis that statements made by 

[Appellee’s] counsel, in disregard of the [c]ourt's ruling on 

subsequent remedial measures, were highly and unfairly 

prejudicial to [Appellants]?

H. Whether the trial court committed an abuse of discretion 

and/or an error of law in denying Appellants' Motion for 

Remittitur because [Appellee] failed to introduce sufficient 

evidence to support the Jury's unreasonable award of 

damages?

I. Whether the trial court abused its discretion and/or made 

an error of law in denying Appellants' Motion for a New Trial 

on damages since the verdict was against the weight of the 

evidence?

Brief of Appellants at 1-2. 

In its brief, AMH sets forth the following Statement of the Questions 

Involved:

1. Whether this Court should grant a new trial on the basis that 

the trial court allowed [Appellee] to vigorously cross-examine a 

defense expert using industry guidelines, but where there was no 

foundation for the guidelines' applicability to the medical 

treatment at issue, and where this Court and the Supreme Court 

have repeatedly rejected the trial court's rationale that the 

Defendant should be made to rebut the improperly admitted 

evidence with cross-examination.

2. Whether this Court should grant a new trial on the basis that 

the trial court allowed [Appellee] to introduce an adverse event 

notification letter, required by the Medical Care and Reduction of 

Error Act, in violation of the statute's express prohibition on using 

such letters as admissions of liability, where the letter introduced 

during testimony that it was an acknowledgement of the "truth" 

after several hours of lies.

3. Whether this Court should grant a new trial on the basis that 

the trial court allowed [Appellee’s] expert to substantiate an 

opinion with analysis that is not within the fair scope of his report, 
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thus lending credibility to his opinion that may have affected the 

verdict.

4. Whether this Court should vacate the judgment and grant a 

j.n.o.v., or else remand for a new trial, because the evidence failed 

to establish the elements of causation and notice, or else the 

verdict was against the clear weight of the evidence on these 

points.

5. Whether this Court should remand for a new trial or else vacate 

the judgment and grant a j.n.o.v., because the verdict concerning 

the taking of the x-rays by the technologist was against the weight 

of the evidence, or else was unsupported by necessary, 

competent, and qualified expert testimony.

6. Whether this Court should, in this rare case, grant a new trial 

on damages or a remittitur, because the gross verdict amount 

shocks the conscience, and the factors analyzed for such an 

argument preponderate heavily in favor of reducing the award.

Brief of AMH at 5-6.

For ease of discussion, we first will consider the claims raised by Dr. 

Crisci and RGA and thereafter discuss those asserted by AMH. Where issues 

within each discussion are related, we will analyze them together. 

Initially, Dr. Crisci and RGA assert the trial court erred in failing to grant 

their motion for judgment notwithstanding the verdict (JNOV) due to 

Appellee’s failure to present competent evidence to support her negligence 

claim. Dr. Crisci and RGA also claim they are entitled to JNOV due to the trial 

court’s failure to grant their motion for a partial nonsuit on the issue of 

whether Dr. Crisci breached the standard of care in her interpretation of the

thoracoabdominal x-ray of December 3, 2008. In doing so, they stress that 

while Dr. Igidbashian testified Dr. Crisci had breached the necessary standard 

of care when she did not order an additional study of the victim’s chest upon 
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realizing an abdominal study had been done, he did not testify that there had 

been a breach in the standard of care with regard to Dr. Crisci’s interpretation 

of the actual study performed. Brief of Dr. Crisci and RGA at 13-14. Dr. Crisci 

and AMA reason that:

[i]f Dr. Crisci read the study within the standard of care, the issue 

of whether another study should have been ordered was moot and 

should never have been considered by the jury. Without any 

testimony regarding a breach of the standard of care in the 

interpretation of the x-ray by Dr. Crisci, [Appellee] failed to satisfy 

her burden of proving a prima facie case of negligence and 

therefore, JNOV must be entered in Crisci’s favor. 

***

It was imperative to the defense for the trial court to have 

granted Dr. Crisci’s partial motion for non-suit so that the jury 

would not consider the issue of whether Dr. Crisci breached the 

standard of care in interpreting the x-ray. 

Id. at 14-15, 20 (emphasis in original). 

At the outset, we note that where a defendant presents evidence 

following the denial of a motion for nonsuit, the correctness of the trial court's 

denial is rendered a moot issue and unappealable. See Williams v. A–Treat 

Bottling Co, Inc., 551 A.2d 297, 299 (Pa.Super. 1988). Here, Dr. Crisci and 

RGA raised a motion for partial nonsuit at the close of Appellee’s case which 

the trial court denied. See N.T. Trial, 5/11/16, at 222-24. However, Dr. John 

Kirby testified as a witness for Dr. Crisci following the denial of the nonsuit. 

See N.T. Trial, 5/12/16 a.m., at 95-136; N.T. Trial 5/12/16 p.m., at 1-14. 

Accordingly, the propriety of the court's order is a moot issue, Williams, 551 
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A.2d at 299, and we next consider the trial court’s denial of their motion for 

JNOV. In doing so, we employ a well-settled standard of review:

A JNOV can be entered upon two bases: (1) where the movant is 

entitled to judgment as a matter of law; and/or, (2) the evidence 

was such that no two reasonable minds could disagree that the 

verdict should have been rendered for the movant. When 

reviewing a trial court's denial of a motion for JNOV, we must 

consider all of the evidence admitted to decide if there was 

sufficient competent evidence to sustain the verdict. In so doing, 

we must also view this evidence in the light most favorable to the 

verdict winner, giving the victorious party the benefit of every 

reasonable inference arising from the evidence and rejecting all 

unfavorable testimony and inference. Concerning any questions of 

law, our scope of review is plenary. Concerning questions of 

credibility and weight accorded the evidence at trial, we will not 

substitute our judgment for that of the finder of fact. If any basis 

exists upon which the [court] could have properly made its award, 

then we must affirm the trial court's denial of the motion for JNOV. 

A JNOV should be entered only in a clear case.

V–Tech Services, Inc. v. Street, 72 A.3d 270, 275 (Pa.Super. 2013) 

(citation omitted).

Medical malpractice is defined broadly as the “unwarranted departure 

from generally accepted standards of medical practice resulting in injury to a 

patient, including all liability-producing conduct arising from the rendition of 

professional medical services.” Toogood v. Owen J. Rogal, D.D.S., P.C., 

573 Pa. 245, 254, 824 A.2d 1140, 1145 (2003). “[T]o prevail in a medical

malpractice action, a plaintiff must ‘establish a duty owed by the physician to 

the patient, a breach of that duty by the physician, that the breach was the 

proximate cause of the harm suffered, and the damages suffered were a direct 

result of the harm.’” Id. (quoting Hightower–Warren v. Silk, 548 Pa. 459, 
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698 A.2d 52, 54 (1997). Thus, the basic elements of medical malpractice and 

ordinary negligence are the same, although medical malpractice has some 

distinguishing characteristics. See Grossman v. Barke, 868 A.2d 561, 566 

(Pa.Super. 2005). 

Upon our review of the trial testimony, we agree with Dr. Crisci and RGA 

that Dr. Igidbashian did not opine Dr. Crisci had deviated from the standard 

of care by misinterpreting the x-ray she reviewed on December 3, 2008. 

However, it was not her “alleged misinterpretation” of that x-ray which was 

highlighted to the jury as being “a cause or a substantial factor in bringing 

about Mr. Summerford’s injury and death” as Dr. Crisci and RGA opine in their 

appellate brief, see Brief of Appellants at 19, but rather her failure to seek an 

additional study to achieve a proper diagnosis which was represented as 

constituting a deviation from that standard of care. As such, Dr. Crisci’s 

analysis of an incomplete study was not determinative in deciding Appellee’s 

medical malpractice claim. In this regard, the trial court reasoned as follows:

At trial, Dr. Vartan Igidbashian, [Appellee’s] expert 

radiologist, testified that the end/tip of the feeding tube was 

supposed to terminate in Mr. Summerford's stomach and not his 

lung.6 He testified that he could not determine based on the 

December 3rd x-ray alone whether or not the feeding tube was 

actually in Mr. Summerford's stomach:

MR. TRUNK: That's the end of the feeding tube, correct?

DR. IGIDBASHIAN: Correct.

Q. Where is that supposed to be located?

A. That's supposed to be located in the stomach.
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Q. Can you tell from this image whether that is in the 

stomach or not?

A. No.

N.T. 05.10.16 (a.m.), p. 90-91.

Dr. Igidbashian stated that Dr. Crisci breached the standard 

of care by interpreting this x-ray instead of obtaining additional 

views:

MR. TRUNK: And what should Dr. Crisci, the radiologist who 

reviewed this film, have done when she saw that an 

abdominal study was taken to check the placement of a 

feeding tube?

DR. IGIDBASHIAN: She should have asked for additional 

views to include the chest, the major airway, so that you 

can make sure that the tube is not going through those and 

ending up in the lung, instead of coming through and ending 

up in the stomach.

Q. Did she do that?

A. No.

Q. And was that a violation of the standard of care?

A. Yes.

N.T. 05.10.16 (a.m.), pp. 92-93.

Dr. lgidbashian opined that Dr. Crisci was incorrect in 

concluding that the December 3

rd study confirmed the 

feeding tube terminated in Mr. Summerford's stomach:

MR. TRUNK: And then the conclusion [of Dr. Crisci] is: 

Feeding tube terminates within the stomach. Is that a 

conclusion that a radiologist would be able to reach by 

looking at the image, the abdominal study, that we just 

saw?

DR. IGIDBASHIAN: No.
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Q. And was this the correct conclusion? The conclusion is 

that you cannot tell.

Q. Was this the correct conclusion that Dr. Crisci reached?

A. No.

Q. Why is that?

A. Because you cannot tell where it is exactly.

Q. And where was the feeding tube?

A. It was in the lung.

N.T. 05.10.16 (a.m.), pp. 97-98.

MR. TRUNK: You told us earlier that Dr. Crisci should have 

-- when she saw that study on December 3rd, she should 

have recognized that it was an abdominal study, and she 

should have ordered another study. Did I get that right?

DR. IGIDBASHIAN: Yes.

Q. Did she do that?

A. No.

Q. Was that a breach of the standard of care?

A. Yes.

Q. And did that failure increase the risk of harm to Mr. 

Summerford?

A. Yes.

N.T. 05.10.16 (a.m.), pp. 136-137.

The expert testimony at trial was sufficient for the jury to 

find that Dr. Crisci violated the standard of care by her failure to 

order another study to make sure the feeding tube was in Mr. 

Summerford's stomach and not his lung. The court properly 

denied Dr. Crisci's motion for a non-suit because the evidence was 
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sufficient for a jury to determine that Dr. Crisci was liable to 

[Appellee].

Dr. Crisci claims she is entitled to judgment n.o.v. or a new 

trial because Dr. Igidbashian failed to testify that Dr. Crisci, 

"breached the standard of care in her interpretation of the 

thoracoabdominal x-ray performed on December 3, 2008." Crisci 

Post-Trial Motion, 3. In support of this argument, Dr. Crisci 

asserts: "Dr. Igidbashian testified that it was a breach of the 

standard of care for Dr. Crisci not to have ordered a new study; 

however, Dr. Igidbashian did not testify that there was a breach 

in the standard of care with regard to the interpretation of the 

study itself." Id.

At the conclusion of Plaintiffs case-in-chief, Dr. Crisci made 

the following oral motion for a partial non-suit:

MS. RAYNOR (Counsel for Crisci): Your Honor, now that 

[Appellee] has closed her case, I would like to make a partial 

motion for nonsuit on the basis that, as I understand

[Appellee’s] claims, there were two.

Number 1, that Dr. Crisci misread an x-ray, which has been 

conceded and that she failed, allegedly failed to recognize it 

was a bad study from a technical perspective and ask for 

another study.

[Appellee’s] expert, Dr. Igidbashian, testified that she 

breached the standard of care on only one of those pieces, 

which was not appreciating that it was not the proper study, 

and ordering another study that would better capture the 

anatomy.

He did not state that she breached the standard of care by 

making an error, a mistake, and I think for that piece of it 

to go to the jury as -- he would have had to have given that

testimony, and he did not.

THE COURT: Okay. Do you want to respond to that?

MR. TRUNK (Counsel for [Appellee]): He actually did 

give that testimony, and the testimony was that there was 

a breach of the standard of care to incorrectly interpret the 

study, and as well as to not ask for a new study.

THE COURT: Okay.
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MS. RAYNOR: Your Honor, if l may say, I specifically asked 

him on recross, to be clear, that his own only claim of the 

breach of the standard of care was that she did not ask for

another study for interpretation.

X X X

THE COURT: Okay. I'm going to deny the motion.

N.T. 05.11.16 (p.m.), pp. 222-224.

In Montgomery v. S. Philadelphia Med. Group, Inc., 656 

A.2d 1385 (Pa. Super. 1995), the Superior Court explained:

A motion for a non-suit may be granted only where it is clear 

that no other conclusion could be reached under the 

evidence presented. Bowser v. Lee Hosp., 399 Pa.Super. 

332,337,582 A.2d 369,371 (1990), allocatur denied, 527 

Pa. 614,590 A.2d 755 (1991); A.J Aberman, Inc. v. Funk 

Bldg. Corp., 278 Pa.Super. 385,393,420 A.2d 594, 598 

(1980). When considering such a motion, issues of 

credibility and the weight to be assigned to the evidence are 

not to be resolved by the trial judge, but must be left for the 

finder of fact to resolve at the close of the evidence. Scott 

v. Purcell, 490 Pa. 109, 113,415 A.2d 56, 58 (1980). 

Because a jury may not reach its verdict on mere 

speculation, however, a trial court may enter a non-suit if 

the plaintiff has failed to produce sufficient evidence to meet 

his or her burden of proof. Morena v. South Hills Health Sys., 

501 Pa. 634,462 A.2d 680, 683 (1983).

Montgomery, 656 A.2d at 1388.

Dr. Crisci is correct that Dr. lgidbashian did not offer an 

expert opinion that she violated the standard of care by 

misinterpreting the x-ray on December 3, 2008. His criticism of 

her care was limited to her failure to recognize the December 3, 

2008 x-ray was inadequate and failing to order an additional xray to confirm placement of the feeding tube.

It is of no moment that the court denied Dr. Crisci's motion 

for a partial non-suit regarding an unproven claim. If erroneous, 

this ruling had no effect whatsoever regarding the admission of 

any evidence at trial or the court's charge to the jury at the 

conclusion of the case. It is not the court's practice to instruct the 

jury regarding the theories of liability or the defenses to liability 

but, instead, to instruct the jury that they must weigh the credible 
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evidence and apply the law charged by the court in order to 

determine whether plaintiff satisfied her burden of proof or not. 7

"Where a case is submitted to a jury on several theories which 

have been pleaded in the alternative, the verdict can be upheld if 

the evidence is sufficient to prove a valid cause under any of those 

theories." Niles v. Fall Creek Hunting Club, Inc., 545 A.2d 926, 

931 (Pa.Super. 1988). 

____

6 The tip of the feeding tube is denser, and thus brighter, so that 

it can more easily be identified by x-ray.

7Dr. Crisci did not request a limiting instruction that the jury 

should not consider Dr. Crisci’s misinterpretation of the x-ray as a 

basis for liability. 

Trial Court Opinion, filed 12/29/16, at 6-11. 

Viewing the foregoing evidence presented at trial in a light most 

favorable to Appellee as we must, we find it was sufficient to sustain the 

verdict. As such, we affirm the trial court’s decision to deny the motion for 

JNOV. 

In their third and fourth issues, Dr. Crisci and RGA challenge certain 

testimony of Dr. Hani Abujudeh, an expert in radiology, presented by AMH. 

Counsel for Appellee asked Dr. Abujudeh on cross-examination whether a 

first-year resident would be able to identify the path of the feeding tube from 

the image presented on the December 3, 2008, x-ray. Over objection, Dr. 

Abujudeh responded as follows: 

Q. Could a first year resident tell on the image from 

December 3rd, 2008? 

Ms. Raynor: Objection, that’s beyond the scope of his 

report, and he’s asking for a standard of care opinion.

The Court: Overruled. Go ahead.
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Q. Could a first year resident determine on that x-ray 

that Dr. Crisci misinterpreted that the course of the feeding 

tube is misplaced and goes into the lungs and not the 

stomach?

A. Yes. In fact, the jury can also tell right now, based on 

education that I gave them, that is the wrong place, not just 

a first year resident.

Q. A first year resident, and even a jury of - - you’re 

assuming that they are not radiologists, I assume, right?

A. Right, based on experience that they have explored, 

you can see that the first one is going down this way, and 

the second one is going down on the same path.

Q. And that’s because that was a superb film to see, 

right?

A. Correct.

N.T. Trial, 5/11/16 p.m., at 190-191. 

Dr. Crisci and RGA reason that the aforementioned exchange “gave the 

jury the misinterpretation that that they were more competent and trained to 

interpret such an x-ray than Dr. Crisci who attended medical school and was 

the Chair of the Radiology Department at Abington Hospital for years, and 

that, she was at best, not competent to read the film, or at worst, she was 

grossly negligent.” Brief of Appellants at 24. They further contend a new trial 

is warranted as this testimony was outside the scope of Dr. Abujudeh’s report 

in violation of Pa.R.C.P. § 4003.4(c) and exceeded the testimony of Appellee’s 

expert as to Dr. Crisci’s breach of the standard of care. Id. at 27. 
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When considering whether the trial court had erred in denying an 

appellant’s motion for a mistrial based upon certain remarks of a 

Commonwealth witness, our Supreme Court generally observed that: 

[e]very unwise or irrelevant remark made in the course of a trial 

by a judge, a witness, or counsel does not compel the granting of 

a new trial. A new trial is required when the remark is prejudicial; 

that is, when it is of such a nature or substance or delivered in 

such a manner that it may reasonably be said to have deprived 

the defendant of a fair and impartial trial. 

Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973)

(citations omitted).

Initially, we note that prior to the aforesaid cross-examination, AMH had 

elicited testimony from Dr. Abujudeh, without a specific objection from Dr. 

Crisci or any objection from RGA, that a first year resident could observe the 

feeding tube had entered Mr. Summerford’s lung. N.T. Trial, 5/11/16 p.m., 

at 159-160, 160-62. Once that testimony had been given without objection, 

Appellee properly explored it further on cross-examination. Furthermore, the 

record belies Dr. Crisci’s and RGA’s representation that the aforesaid 

testimony pertained to the relevant standard of care, for the objection to the 

specific question concerning whether this was a violation of the standard of 

care was sustained, and Dr. Abujudeh did not opine in this regard. See N.T. 

Trial, 5/11/16 p.m., at 192. 

Also, to the extent Appellants challenge Dr. Abujudeh’s surmising as to 

what a juror could observe as minimizing Dr. Crisci’s credentials, we note that 
J-A31033-17

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Appellants failed to raise this argument at the proper juncture before the trial

court; therefore, it is waived.

[I]n order to preserve an issue for appellate review, a party must 

make a timely and specific objection at the appropriate stage of 

the proceedings before the trial court. Failure to timely object to 

a basic and fundamental error, such as an erroneous jury 

instruction, will result in waiver of that issue. On appeal, the 

Superior Court will not consider a claim which was not called to 

the trial court's attention at a time when any error committed 

could have been corrected.... By specifically objecting to any 

obvious error, the trial court can quickly and easily correct the 

problem and prevent the need for a new trial. Additionally, the 

appellate court should not be required to waste judicial resources 

correcting a problem that the trial court could have easily 

corrected if it had been given the opportunity to avoid the 

necessity of granting a new trial.

Fillmore v. Hill, 665 A.2d 514, 515–16 (Pa.Super. 1995), appeal denied, 674 

A.2d 1073 (Pa. 1996) (citations omitted); Pa.R.A.P. 302(a).

In addition, as the trial court notes, Dr. Abujudeh’s testimony was 

relevant to a key and contested issue concerning the quality of the December 

3, 2008, x-ray. As the trial court explained: 

It is important to review the evidence introduced in the trial 

record before Dr. Abujudeh's testimony regarding a central issue 

in the case -the quality of the December 3rd x-ray. Dr. Igidbashian 

had already testified that it was below the standard of care for Dr. 

Crisci to rely upon the December 3rd x-ray because, inter alia, 

there was inadequate visualization of the feeding tube, chest and 

major airway. N.T. 05.10.16 (a.m.), pp. 92-98. Dr. Crisci had 

earlier testified that the x-ray film was of good diagnostic quality 

(N.T. 05.10.16 (p.m.), p. 94), but acknowledged that she had 

misread the study:

BY MR TRUNK:
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Q. That is, if you thought that the tube was coming this way out 

of the esophagus, and we now know that's not where it was 

coming out of, correct?

A. Yes, absolutely.

Q. So that means you were never able to visualize the tube going 

from what you thought was the area of the spine over to the left 

where we see it here, correct?

A. Yes. I made a mistake in the interpretation of the film. That is 

correct.

Q. And in other words, you could not see the full course of this 

tube?

A. I could not see the full course of the. tube.

N.T. 05.10.16 (p.m.), p. 103.

A pivotal and contested issue in this case related to the 

quality of the x-ray taken on December 3, 2008[,] and whether it 

captured the appropriate anatomy. Dr. Igidbashian testified that 

its quality was not adequate to make a diagnosis and that the

standard of care required that an additional study be ordered. N.T. 

05.10.16 (a.m.), pp. 92-93. Dr. Crisci testified that the diagnostic 

quality of the image itself was good, but that in hindsight, she 

could not see some of the anatomy needed to make a correct 

interpretation. N.T. 05.10.16 (p.m.), p. 94. Dr. Abujudeh testified 

that the quality of the study was so good that even lay people 

could see what the image showed. N.T. 05.11.16 (p.m.), p. 191-

192. His testimony did not relate to the standard of care, but to 

the quality of the image. The court properly sustained the 

objection to a question eliciting a standard of care opinion by Dr. 

Abujudeh. His testimony was probative and relevant to the issue 

relating to the quality of the subject x-ray which was 

misinterpreted and whether another study was indicated. Dr. 

Abujudeh never testified that Dr. Crisci violated the standard of 

care.

Trial Court Opinion, filed 12/29/16, at 13-14. For all of the foregoing 

reasons, these issues lack merit.
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Dr. Crisci and RGA next submit the trial court erred and abused its 

discretion when it only partially granted their motion in limine to preclude 

Appellee’s expert Dr. Igidbashian from testifying to causation issues that 

allegedly exceeded his expertise. They maintain that as a radiologist, Dr. 

Igidbashian did not possess the necessary training and experience to provide 

competent trial testimony pertaining to internal medicine and forensic 

pathology. Brief of Appellants at 31. Dr. Crisci and RGA further represent

that “Dr. Igidbashian was permitted to testify that Dr. Crisci increased the risk 

of harm by not ordering another radiology study. He was simply not qualified 

to offer causation opinions, as was confirmed by his own acknowledgement 

during his testimony at trial that he had never interpreted an x-ray taken to 

confirm feeding tube placement and had never determined the cause of death 

of anyone.” Id. at 35. They conclude that the subject testimony “prejudiced 

Dr. Crisci in that the jury considered evidence on causation that it should never 

have considered and may have reached its verdict based upon his testimony.” 

Id. 

The referenced testimony was developed as follows: 

Q. You told us earlier that Dr. Crisci should have –when 

she saw that study on December 3rd, she should have 

recognized that it was an abdominal study, and she should 

have ordered another study. Did I get that right?

A. Yes.

Q. Did she do that? 

A. No.
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Q. Was that a breach of the standard of care?

A. Yes.

Q. And did that failure increase the risk of harm to Mr. 

Summerford?

A. Yes. 

N.T. Trial, 5/10/16 a.m., at 136-37. 

This Court’s standard of review regarding evidentiary challenges is wellsettled:

[a]dmission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court

clearly abused its discretion. An abuse of discretion is not merely 

an error of judgment, but is rather the overriding or misapplication 

of the law, or the exercise of judgment that is manifestly 

unreasonable, or the result of bias, prejudice, ill-will or partiality, 

as shown by the evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa.Super. 2015) (internal 

citations and quotation marks omitted), appeal denied, 128 A.3d 220 (Pa. 

2015). An appellant bears a “heavy burden” to show that the trial court has 

abused its discretion. Commonwealth v. Christine, 533 Pa. 389, 397, 125 

A.3d 394, 398 (2015).

In Miller v. Brass Rail Tavern, 541 Pa. 474, 664 A.2d 525 (1995), the 

Pennsylvania Supreme Court held that a witness without a medical degree 

who acted in the dual role of mortician and county coroner was competent to 

give expert testimony as to one’s time of death. In doing so, the Court 

explained:
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[i]t is well established in this Commonwealth that the standard for 

qualification of an expert witness is a liberal one. The test to be 

applied when qualifying an expert witness is whether the witness 

has any reasonable pretension to specialized knowledge on the 

subject under investigation. If he does, he may testify and the 

weight to be given to such testimony is for the trier of fact to 

determine. It is also well established that a witness may be 

qualified to render an expert opinion based on training and 

experience. Formal education on the subject matter of the 

testimony is not required, nor is it necessary that an expert be a 

licensed medical practitioner to testify with respect to organic 

matters. It is not a necessary prerequisite that the expert be 

possessed of all of the knowledge in a given field, only that he 

possess more knowledge than is otherwise within the ordinary 

range of training, knowledge, intelligence or experience. 

Id. 541 Pa. at 480-81, 664 A.2d at 528 (emphasis and internal citations

omitted).

Upon our review of the record, we find the trial court did not abuse its 

discretion in permitting Dr. Igidbashian to opine that the deviations in the 

standard of care increased the risk of harm to Mr. Summerford. As the trial 

court reasoned, 

[p]rior to trial, Dr. Crisci filed a Motion in Limine to preclude 

plaintiff’s expert, Dr. Igidbashian, from testifying at trial that Dr. 

Crisci's alleged failures increased the risk of harm to Mr. 

Summerford and were a substantial factor in causing his death. 

After argument on May 3, 2016, the court entered an order which 

stated: "Dr. Igidbashian is permitted to testify that the deviations 

in the standard of care increased the risk of harm to [Appellee’s]

decedent. Dr. lgidbashian is precluded from testifying that 

deviations from the standard of care of Dr. Crisci caused 

[Appellee’s] decedent's death."

Dr. Crisci argues that "only a qualified expert in internal 

medicine or forensic pathology" could provide credible, competent 

testimony regarding increased risk of harm or cause of death.

Brief in Support of Motion for Post-Trial Relief, p. 13.

Section 512 of the MCARE Act sets forth the standards for 

medical expert competency in Pennsylvania. As a general rule, 
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"[n]o person shall be competent to offer an expert medical opinion 

in a medical professional liability action against a physician unless 

that person possesses sufficient education, training, knowledge 

and experience to provide credible, competent testimony." 40 P.S. 

§ 1303.512. 

***

Dr. Igidbashian's qualifications as a board certified 

radiologist with 30 years of experience in the field of radiology 

qualified him to provide an expert opinion that the misplacement 

of a feeding tube in plaintiffs decedent's lung increased the risk of 

harm to the decedent. N.T. 05.10.16 (a.m.), pp. 136-137.

Dr. Crisci's claim of error is undermined by her own 

acknowledgment that a misplaced feeding tube into a patient's 

lung could increase the risk of harm to the patient.

MR. TRUNK: The reason the placement of a feeding tube is 

checked by x-ray, doctor, is because there can be harm to the 

patient if the feeding tube is placed in the wrong area; is that 

right?

DR. CRISCI: There can be some degree of harm to the patient if 

it is not in the stomach.

X X X

Q. I asked you if there could be harm to the patient if you placed 

a feeding tube in the patient's lung. And you responded and 

qualified it and said that there could be some degree of harm. And 

I said, some degree of harm? Doctor, it can cause death, can't it? 

A feeding tube into a patient's lung can cause death.

A. It may cause death. It may not cause death. That is correct.

Q. But it has the potential to cause death. Can we agree on that?

A. It certainly has the potential to cause death, yes.

Q. And it has the potential to cause death in multiple ways, doesn't 

it?

A. It has the possibility of causing death in a couple of ways, yes.

N.T. 05.10.16 (p.m.), pp. 74-75.
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The court's ruling permitting Dr. Igidbashian to testify regarding 

increased risk of harm (and not cause of death) was proper.

Trial Court Opinion, filed 12/29/16, at 14-16. 

Furthermore, Dr. Crisci and RGA’s own arguments in their appellate brief 

undermine their position that Dr. Igidbashian’s testimony was prejudicial to 

them. Dr. Crisci and RGA stress Dr. Igidbashian indicated he had never made 

a determination as to one’s cause of death and had interpreted no x-rays to 

confirm placement of an NG tube since 2011. Brief of Appellants at 32-33 

citing N.T. Trial 5/10/16, at 26, 32. It was within the province of the jury to 

weigh this testimony as to Dr. Igidbashian’s lack of knowledge in this regard 

which, arguably, undermined his earlier statements at trial concerning Dr. 

Crisci’s failure to order another radiology study. See Miller, supra. 

In their sixth and seventh issues, Dr. Crisci and RGA maintain the trial 

court should have granted them a new trial in light of certain statements made 

by Appellee’s counsel. For the reasons that follow, we find these claims 

waived.

In their concise statement of errors complained of on appeal, Dr. Crisci 

and RGA generally question “[w]hether the [t]rial [c]ourt committed an abuse 

of discretion and/or an error of law in denying Appellants’ Motion for Post-trial 

relief on the basis that statements made by [Appellee’s] counsel, in disregard 

of the [c]ourt’s ruling on subsequent remedial measures, were highly and 

unfairly prejudicial to [Appellants]?” See Concise Statement filed 10/18/16, 

at ¶ G. However, in their appellate brief, they raise a challenge to statements 
J-A31033-17

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Appellee’s counsel made during closing argument pertaining to testimony 

counsel had elicited on cross-examination of co-defense counsel’s expert Dr. 

Abujudeh. Brief of Appellants at 35-42. 

Pennsylvania Rule of Appellate Procedure 1925 provides that a 

Rule 1925(b) statement “shall concisely identify each ruling or 

error that the appellant intends to challenge with sufficient detail 

to identify all pertinent issues for the judge.” Pa.R.A.P. 

1925(b)(4)(ii). “Issues not included in the Statement and/or not 

raised in accordance with the provisions of this [Rule] are waived.” 

Pa.R.A.P. 1925(b)(4)(vii). This Court has considered the question 

of what constitutes a sufficient 1925(b) statement on many

occasions, and it is well-established that “Appellant's concise

statement must properly specify the error to be addressed on 

appeal.” Commonwealth v. Hansley, 2011 PA Super 129, 24 

A.3d 410, 415 (Pa. Super. 2011), appeal denied, 613 Pa. 642, 32 

A.3d 1275 (2011) (citation omitted). “[T]he Rule 1925(b) 

statement must be specific enough for the trial court to identify 

and address the issue an appellant wishes to raise on appeal.” Id.

(brackets, internal quotation marks, and citation omitted).

In re A.B., 63 A.3d 345, 350 (Pa.Super. 2013).

Moreover, “[a] theory of error different from that presented to the trial 

jurist is waived on appeal, even if both theories support the same basic 

allegation of error which gives rise to the claim for relief.” Commonwealth 

v. Ryan, 909 A.2d 839, 845 (Pa.Super. 2006) (citation omitted), appeal 

denied, 597 Pa. 714, 945 A.2d 768 (2008). Because only claims properly 

presented before the trial court are preserved for appeal, and Dr. Crisci’s and 

RGA’s challenge to counsel’s statements in their Rule 1925(b) statement not 

only were vague but also did not mention closing argument, their contentions 

in their appellate brief concerning those statements are waived. 
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We also would find any challenge to statements made by Appellee’s 

counsel waived for Dr. Crisci’s and RGA’s failure to make a timely and specific 

objection to the alleged statements on the record. See Commonwealth v. 

Yandamuri, ___ Pa. ____, n.23, 159 A.3d 503, 528 n.23 (2017) (finding 

challenge to prosecutor’s statement during closing argument waived where 

the appellant failed to demonstrate where in the record he had preserved this 

claim and the Supreme Court’s independent review did not disclose a 

contemporaneous objection). See also, Pa.R.A.P. 2119(e) (requiring an 

appellant to identify where in the record he preserved an issue for appellate 

review); Filmore, supra. 

The final two issues Dr. Crisci and RGA present pertain to the 

$5,000,000 jury award which they argue was excessive, punitive and clearly 

exceeded what the evidence warrants. Brief of Appellants at 42. In support 

of this assertion, Dr. Crisci and RGA highlight the following facts from the 

record: 

In this case, [Appellee] did not submit evidence of economic 

loss at all. The jury’s award was based solely upon a 

noneconomic award. [Mr. Summerford] was 88 years old at the 

time of the alleged injury, had suffered multiple comorbidities

including dementia, syncope, hypertension, pulmonary 

insufficiency, congestive heart failure, coronary artery disease, 

and other maladies prior to his admission to Abington Hospital, 

and importantly[] [h]e suffered a [c]ode the day prior to the 

alleged injury which was not related to the alleged injury, which 

reduced significantly his chances of mortality.

Defense expert, John Kirby, M.D. testified that an 88 yearold person normally has a life expectancy of 4.55 years, but that 

Mr. Summerford had a zero percent life expectancy before the 

feeding tube in dispute was placed into Mr. Summerford at AMH. 
J-A31033-17

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. . . 

A careful review of [Appellee’s] testimony reveals that 

[Appellee] produced very little evidence of the value of loss value 

of the decedent’s life to the family by reason of the death of Mr. 

Summerford. Mr. Summerford lived in a nursing home in 

Pennsylvania. [Appellee] lived in California or Georgia for most of 

her adult life, while her father lived in Norristown, PA. She visited 

her father whenever she could get to Pennsylvania. She testified 

that she spoke to him on the telephone several times each week; 

however, there are notes in Mr. Summerford’s nursing home 

records, asked about at trial, about the lack of family involvement 

and interest in his care. This is hardly the type of evidence to 

substantiate such a plainly excessive and exhorbitant [sic] award 

to [Appellee]. . . . 

Brief of Appellants at 45-46 (citations to reproduced record omitted) 

(emphasis in original). 

The grant or refusal of a new trial due to the excessiveness

of the verdict is within the discretion of the trial court. This [C]ourt

will not find a verdict excessive unless it is so grossly excessive as 

to shock our sense of justice. We begin with the premise that large 

verdicts are not necessarily excessive verdicts. Each case is 

unique and dependent on its own special circumstances and a 

court should apply only those factors which it finds to be relevant 

in determining whether or not the verdict is excessive.

Tindall v. Friedman, 970 A.2d 1159, 1177 (Pa.Super. 2009) (citations 

omitted), reargument denied, June 1, 2009. 

Similarly:

Our standard of review from the denial of a remittitur is 

circumspect and judicial reduction of a jury award is appropriate

only when the award is plainly excessive and exorbitant. The 

question is whether the award of damages falls within the 

uncertain limits of fair and reasonable compensation or whether 

the verdict so shocks the sense of justice as to suggest that the 

jury was influenced by partiality, prejudice, mistake, or 

corruption. Furthermore, [t]he decision to grant or deny remittitur 

is within the sole discretion of the trial court, and proper appellate 

review dictates this Court reverse such an Order only if the trial 
J-A31033-17

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court abused its discretion or committed an error of law in 

evaluating a party's request for remittitur. Renna v. Schadt, 64 

A.3d 658, 671 (Pa. Super. 2013) (citations and quotation marks 

omitted).

Tillery v. Children's Hosp. of Philadelphia, 156 A.3d 1233, 1246–47 

(Pa.Super. 2017), reargument denied, Apr. 24, 2017, appeal denied, No. 227 

EAL 2017, 2017 WL 4517582 (Pa. Oct. 10, 2017). 

In analyzing these issues, the trial court reasoned as follows: 

Wrongful Death Action

Wrongful death damages are recoverable to compensate the 

spouse, children, or parents of a deceased for the pecuniary value 

of losses they have sustained as a result of the death of the 

decedent. Slaseman v. Myers, 455 A.2d 1213, 1218 (Pa. Super.

1983). The value of decedent's services to a decedent's family 

includes society and comfort. Machado v. Kunkel, 804 A.2d 1238, 

1245 (Pa. Super. 2002). In Rettger v. UPMC Shadyside, 991 A.2d 

at 915 (Pa. Super. 2010), defendant hospital contended that the 

jury's award of $2.5 million for the wrongful death claim was 

excessive where decedent was unmarried, had no children or 

dependents and provided only limited services in his parents' 

home on weekends. The court rejected the hospital's argument 

and held that the term "services" in the context of a wrongful 

death claim "clearly extends to the profound emotional and 

psychological loss suffered upon the death of a parent or a child 

where the evidence establishes the negligence of another as its 

cause." Id. at 933.

[Appellee] offered the following testimony about her 

relationship with her father:

[Appellee]: Yes, we were close. My father was -- my father was 

everything to me, and I would call him all the time and talk about 

everything. There wasn't anything that I couldn't talk to my dad 

about. My dad was understanding. He never condemned me. He 

always supported me and encouraged me.

N.T. 05.11.16 (p.m.), p. 66.
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She testified that prior to her father's death she spoke with 

him several times each week over the phone. N.T. 05.11.16 

(p.m.), p. 48. Regarding the final phone call she had with her 

father, [Appellee] testified:

MR. TRUNK: How did you end the conversation?

[Appellee]: We always say one, two, three, because we never 

liked to hang up.

Q. How long is this something you've been doing?

A. For years, maybe 40 years. I don't know.

Q. How many?

A. Fifty years, a long time.

Q. Every time you hang up, that's the way you hung up?

A. Yes, we always say -- we hang up on the count of three. So we 

go one, two, three, and we hang up the phone, because neither 

one of us ever wanted to say goodbye. You know, so that's how 

we did it, and so I told my dad, I said, I want to call you back, and 

you know, so he sounded tired.

So I said, well, you rest now, and I'll call you back, I'm going 

to call you back, and okay, okay. So one, two, three, we hung up.

Q. Okay. Now –

A. But I promised him I was going to call him back.

N.T. 05.11.16 (p.m.), pp. 81-82.

[Appellee] demonstrated her father's importance to her and 

her family by introducing family photographs of their time 

together at her graduation and at other times with her children

and grandchildren. N.T. 05.11.16 (p.m.), pp. 59-65. [Appellee]

testified she and her sister would rendezvous with her father over 

the years. N.T. 05.11.16 (p.m.), p. 65. In addition, one of 

[Appellee’s] sons attended high school in Norristown while living 

for an extended period of time with decedent, and another one of 

her sons lived with Mr. Summerford for four years while attending 
J-A31033-17

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Temple University in Philadelphia. N.T. 05.11.16 (p.m.), pp. 54-

55.

This evidence was sufficient to submit to the jury for 

consideration of damages under the Wrongful Death Act.

'The duty of assessing damages is within the 

province of the jury' and, thus, as a general matter, a 

compensatory damage award 'should not be interfered 

with by the court unless it clearly appears that the 

amount awarded resulted from caprice, prejudice, 

partiality, corruption or some other improper influence.' 

Gradel v. Inouye, 491 Pa. 534,421 A.2d 674, 680-81 

(1980) (quoting Tonikv. Apex Garages, Inc., 442 Pa. 

373,275 A.2d 296,299 (1971)).

Paves v. Corson, 801 A.2d 546, 548-49 (Pa. 2002).

The jury's award of $1.5 million is consistent with other 

Pennsylvania verdicts for wrongful death claims. See, Rettger, 

supra; Hyrcza v. W Penn Allegheny Health System, Inc., 978 A.2d 

961 (Pa. Super. 2009). The court properly denied Dr. Crisci's 

request for remittitur.

Survival Action

The measure of damages awarded in a survival action 

includes, inter alia, the decedent's conscious pain and suffering. 

Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994). Here, the jury awarded

decedent's estate $3.5 million as compensation for Mr. 

Summerford's conscious pain and suffering.

In awarding damages for pain and suffering, a jury may 

consider, inter alia, the severity of the injury, the duration and 

extent of the physical pain and mental anguish which the decedent

experienced, as well as the health and physical condition of the 

plaintiff prior to the injuries. See, Pa.R.C.P. 223.3. The defendant 

has the burden of convincing the court that the award deviates

substantially from what is considered reasonable compensation. 

Hyrcza, supra.

At trial, Dr. Ross testified about Mr. Summerford's conscious 

pain and suffering he experienced during the night of December 

3rd into the morning of December 4th.
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Dr. ROSS: He's conscious. Throughout the whole time 

course until his final arrest he was conscious. Haldol, Ativan 

is kind of a sedative that's given. That is lorazepam. In 

addition, he was becoming increasingly tachycardic. His 

heart is pounding. It's pounding in his chest. Tachypnea is 

40 to 50 breaths. He's huffing and puffing. He's breathing a 

lot because the fluid is building up in his left lung and he's 

becoming short of breath.

MR. TRUNK: What was his breath rate before the crux of 

the feeding solution started on the night of the 3rd into the 

morning of the 4th?

A . ... He started becoming short of breath. Short of breath 

because of the suffocation; he's having difficulty breathing. 

The work that he's doing, work of breathing, is becoming 

more and more labored, more and more difficult.

...

He continued to decline. He was tachypneic. His accessory 

muscles, we breathe with our diaphragms but we also use 

our intercostal muscles, your rib muscles. So he's just 

huffing and puffing trying to breathe, short of breath. Then

he was intubated, and in time over the next hour his heart 

rate went down. He was having more and more difficulty 

breathing, then he had a cardiac arrest.

Q. Doctor, all the things you described, were they caused 

by the feeding solution building up in Mr. Summerford's left 

lung?

A. Yes.

Q. Are the things that you described, would you consider 

that to be suffering?

A. Yes. He was suffering, yes.

Q. Relating to what we talked about earlier, a drowning 

victim, how, if at all, does this relate to a drowning victim?

A. Well, the fluid built up in the lungs makes somebody 

more and more short of breath. They are experiencing 

feelings of suffocation, agitation, pain. The wheezing, the 

course [sic] breaths, trying to cough, all that sort of stuff 
J-A31033-17

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produces more and more pain and suffering, just like a 

drowning.

X X X

Q. First let's get a time on this note, which is just above. 

This is a note timed at 12/4/08, 7:51 a.m. Is that after Mr. 

Summerford had already passed?

A. Yes.

Q. Now let's go down to the note below that. We read Dr. 

Bonica's note. This is a nursing note now, doctor, from an 

R.N. Jessica Schonewolf, correct?

A. Yes.

Q. And the same thing as you were doing with Dr. [ ]

Bonica's note, but tell the jury what, if any, significance 

what she says were the symptoms Mr. Summerford was 

experiencing, how it relates to causing death and/or his pain 

and suffering.

A. Yes. "Patient with increased restlessness." That's feeling 

agitated, feeling restless, feeling bad. Tachypnea, breathing 

excessively, huffing and puffing. Lethargy. He's kind of 

running out of steam and energy. Lopressor and Ativan are 

kind of sedatives to give him. He was given a nebulizer. That 

will open up some of your airways, especially when they 

tend to collapse when the fluid gets around them. Then a 

chest x-ray was completed and lasix given as well.

Q. Are those things evidence of -- first of all, are those 

things related, everything that you read there, related to 

the feeding solution being in his lung?

A. Yes.

Q. Are they further evidence of Mr. Summerford 

unfortunately having experienced pain and suffering before 

he passed?

A. Yes.

N.T. 05.10.16 (p.m.), pp. 40-47.
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"The determination of the amount to be awarded for pain 

and suffering is primarily a jury question." Gunn v. Grossman, 748 

A.2d 1235, 1241 (Pa. Super. 2000); see also, Whitaker v.

Franliford Hosp. of City of Philadelphia, 984 A.2d 512 (Pa. Super. 

2009).

Dr. Crisci argues the trial court erred by failing to grant 

remittitur, claiming the jury verdict was so excessive as to deviate 

substantially from reasonable compensation and shock the 

conscience of the court.

The question is whether the award of damages falls 

within the uncertain limits of fair and reasonable 

compensation or whether the verdict so shocks the 

sense of justice as to suggest that the jury was 

influenced by partiality, prejudice, mistake, or 

corruption. Furthermore, [t]he decision to grant or deny 

remittitur is within the sole discretion of the trial court, 

and proper appellate review dictates this Court reverse 

such an Order only if the trial court abused its discretion 

or committed an error of law in evaluating

a party's request for remittitur.

Gurley v. Janssen Pharm., Inc., 113 A.3d 283,294 (Pa. Super. 

2015), reargument denied (May 19, 2015). A verdict will not be 

found to be excessive, "unless it so grossly excessive as to shock 

our sense of justice." Hyrcza, supra, 978 A.2d at 979.

The court did not find that the verdict was excessive or 

shocking. Plaintiff produced expert testimony from Dr. Ross about 

the suffering Mr. Summerford endured during the night of 

December 3rd into the morning of December 4th. Dr. Ross 

described Mr. Summerford as conscious throughout the course of 

the night, during which time Mr. Summerford became increasing 

tachycardic, began huffing and puffing due to fluid building up in 

his lungs, started wheezing, became short of breath due to 

suffocation, and eventually suffered cardiac arrest. As stated 

above, Dr. Ross described Mr. Summerford's death as just like a 

drowning ("[Mr. Summerford was] experiencing feelings of 

suffocation, agitation, pain. The wheezing, the course [sic] 

breaths, trying to cough, all that sort of stuff produces more and 

more pain and suffering, just like a drowning.") N.T. 05.10.16 

(p.m.), p. 43.

Dr. Crisci did not convince the court that the verdict 

deviated substantially from what is considered reasonable 
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compensation. Hyrcza, supra. There is no evidence that strongly 

suggests the jury was influenced by passion or prejudice. 

Accordingly, the court did not err by refusing to grant Dr. Crisci's 

request for a new trial on damages or remittitur.

Trial Court Opinion, filed 12/29/16, at 27-33. 

Based on the foregoing, and following an independent review of the 

record, we find that the jury's $1.5 million award for Appellee’s wrongful death 

claim and its $3.5 award for Mr. Summerford’s conscious pain and suffering 

caused by the negligence of Dr. Crisci and RGA fell “within the uncertain limits 

of fair and reasonable compensation.” Renna v. Schadt, 64 A.3d 658, 671 

(Pa.Super. 2013). Therefore, “[c]ognizant of the fact that the amount of pain 

and suffering damages is primarily a jury question,” we agree with the trial 

court that the verdict was not “so grossly excessive as to shock our sense of 

justice.” Renna, supra at 671-72 (citation omitted); Tindall, supra at 1177. 

Hence, the trial court did not abuse its discretion in denying Appellants' 

request for a new trial or remittitur on this basis. See Renna, supra at 671; 

Tindall, supra at 1177.

Finding no merit to the issues raised by Dr. Crisci and RGA, we next turn 

to a consideration of the questions AMH presents for our review in its appellate 

brief. 

AMH first asserts it is entitled to a new trial due to the trial court’s 

allowing Appellee to cross-examine a defense expert using industry guidelines 

in contravention of precedent from this Court and the Pennsylvania Supreme 

Court which rejected the trial court’s rationale that a defendant must be made 
J-A31033-17

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to rebut improperly admitted evidence with cross-examination. 

While AMH presented ten issues in its concise statement of matters 

complained of on appeal, it has raised and developed this particular issue for 

the first time in its appellate brief. 

1 Because only claims properly presented 

____________________________________________

1 AMH sets forth the following claims in its Statement of Matters Complained 

of on Appeal filed on September 29, 2016: 

1. Failing to grant a judgment n.o.v., or at a minimum a new 

trial on all issues, where the verdict against [AMH] on the 

corporate negligence claim is unsupported by sufficient evidence, 

or was at a minimum against the weight of the evidence. The claim 

that the Hospital should have had a policy regarding chest x-rays 

to confirm placement of feeding tubes could not as a matter of law 

support a corporate negligence claim where a chest x-ray was 

ordered here, and thus any claimed lack of a policy could not have 

caused harm. Moreover, the undisputed evidence showed that coDefendant Dr. Crisci did not request an additional x-ray, and 

simply misinterpreted the existing x-ray.

2. Failing to grant a judgment n.o.v., or at a minimum a new trial 

on all issues, where the verdict against the [AMH] on the vicarious 

liability claim, for the x-ray study taken by Jillian Nickel, is 

unsupported by sufficient evidence, or at the very least is against 

the weight of the evidence. Given the undisputed testimony, 

including that introduced by the Plaintiff's expert and elicited by 

the Plaintiff's counsel, no two reasonable minds could disagree 

that the conduct of Ms. Nickel in obtaining the December 3 x-ray 

was not a breach of the standard of care.

3. Failing to grant a judgment n.o.v., or at a minimum a new trial 

on all issues, because Dr. Igidbashian lacked the necessary 

competence, qualifications, and experience to testify as an expert 

with respect to [AMH’s] policies,

4. Failing to grant a judgment n.o.v., or at a minimum a new trial 

on all issues, because Dr. Igidbashian's opinion was based upon 

improper and inadmissible hearsay testimony regarding [AMH]

policies.

5. Failing to grant a judgment n.o.v., or at a minimum a new trial 

on all issues, because Dr. Igidbashian's testimony that [AMH] 
J-A31033-17

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____________________________________________

should have had a policy requiring radiology technologists to 

perform chest x-rays to confirm feeding tube placement, and Dr. 

Igidbashian's testimony regarding an x -way [sic] performed in 

August 2008, were both well beyond the fair scope of his report.

6. Failing to grant a judgment n.o.v., or at a minimum a new trial 

on all issues, because Dr. Igidbashian lacked the necessary 

competence, qualifications, and experience to testify as an expert 

with respect to the conduct of radiology technician Jillian Nickel.

7. Failing to grant a new trial where two essential witnesses and 

employees of [AMH], Jillian Nickel and Joan Diaz, were 

erroneously and improperly sequestered, resulting in unfair 

prejudice to [AMH] in its preparation of and presentation of its 

defense.

8. Failing to grant a new trial where the Court improperly admitted 

evidence of (a) subsequent remedial measures regarding the xray system, (b) improper cross-examination evidence from Dr. 

Hani Abujudeh regarding standard of care, (c) irrelevant 2014 

policies from the American College of Radiology, (d) the December

9, 2008 disclosure/apology letter, (e) impermissibly speculative 

testimony from codefendant's expert, Dr. Kirby, regarding an 

intubation on December 2, 2008 as a possible alternative 

explanation for death, (f) improper hearsay opinions of Dr. 

Breckenridge, and/or (g) irrelevant statements from Dr. 

Igidbashian regarding policies of a different hospital, St. Francis 

(which also were not previously disclosed).

9. Failing to grant a new trial where this [c]ourt improperly 

precluded [AMH] from introducing evidence, through Dr. Kane, 

about the Hospital's policies.

10. Failing to award a new trial on damages, or at the very least 

a remittitur, where the verdict was against the weight of the 

evidence, and was shockingly excessive as a matter of 

Pennsylvania common law and also under the MCARE Act, 40 P.S.

§1303.515(a), was clearly punitive in nature, bears no 

resemblance to the damages proven, and so shocks the sense of 

justice as to suggest that the jury was influenced by partiality, 

prejudice, mistake or corruption. 
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before the trial court are preserved for appeal, we find this claim waived. See, 

In re A.B.; Commonwealth v. Ryan, supra.

For the same reason, we find AMH has waived its second claim, because 

it has raised and developed a different theory of relief in its appellate brief 

than that it presented to the trial court in its concise statement. In its 

Statement of Matters Complained of on Appeal, AMH averred the trial court 

erred in “[f]ailing to grant a new trial where [it] improperly admitted evidence 

of” ... (d) the December 9, 2008[,] disclosure/apology letter[.]” See

Statement of Matters Complained of on Appeal at 3, ¶8(d), supra. However, 

in its appellate brief AMH avers that the introduction of the letter violated the 

Medical Care and Reduction Error Act’s express prohibition on using such 

letters as admissions of liability. See Brief of AMH at 5, ¶ 2. Appellant made 

no mention of the applicability of the Act in its concise statement, but rather 

generally challenged it as “improperly admitted evidence.” Moreover, at trial, 

the basis for AMH’s objection to the admission of the evidence was that it was 

“misleading” and “prejudicial to the defense” See N.T. Trial, 5/11/16, at 93.2 

____________________________________________

2 To the extent the issues AMH set forth in its concise statement may be 

deemed sufficiently specific to preserve this claim for appellate review, we 

note that after the trial court indicated it was overruling AMH’s objection, it 

stressed that:

. . . I do not believe its construed to be an admission. There is -

- it does state, as follows: In accordance with that law, we are 

sending you this letter to formally inform you that an x-ray 

relating to the placement of your father’s feeding tube may have 
J-A31033-17

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Next, AMH submits this Court should grant a new trial in light of the trial 

court’s allowing Dr. Igidbashian, Appellee’s expert in radiology, to testify 

regarding an x-ray of Mr. Summerford taken on August 22, 2008, although 

this opinion testimony had not been contained within the fair scope of the 

____________________________________________

been incorrectly read, and in the context of how this case has 

developed, particularly the defense, it does not appear to be a 

contested issue by the defense that the x-ray in question was 

incorrectly read, and so I’m going to admit it. 

I did state, off the record, that if the hospital’s attorney 

wishes to submit a supplemental requested point for charge that 

would address that issue, I would certainly take it under 

consideration. 

N.T. Trial, 5/11/16, p.m. at 93-94. 

The trial court’s interpretation of the letter’s contents as well as its 

readiness to entertain a supplemental point for charge seemingly resolved 

AMH’s objection for, in response, counsel did not renew her objection, but 

rather replied “Okay. Thank you.” Id. at 94. As a result, AMH also has 

failed to preserve this issue for failure to properly object on the record at trial. 

See Commonwealth v. Yandamuri, supra. 

Notwithstanding, the trial court did instruct the jury as to the letter’s 

import and informed it that the notification did not constitute an admission of 

liability pursuant to the supplemental charge AMH provided:

A medical facility, through an appropriate designee, shall 

provide written notification to a patient affected by a serious event 

or, with the consent of a patient, to an available family member 

or designee, within seven days of the occurrence or discovery of 

a serious event. Notification shall not constitute an 

acknowledgement or admission of liability.

N.T., 5/13/16 at 119; N.T., 5/12/16 p.m. at 96-97 (emphasis added). Juries 

presumably follow the trial court’s instructions. Commonwealth v. Cash, 

635 Pa. 451, 471, 137 A.3d 1262,1273 (2016), cert. denied, 137 S.Ct. 1202, 

197 L.Ed.2d. 249 (2017). There is no indication in the record that the jury 

did not do so herein. 
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expert report he prepared and Appellee disclosed prior to trial. AMH Brief at 

31-32. 

By way of background, on direct examination, Dr. Igidbashian utilized 

an image to illustrate his testimony regarding the manner in which a proper 

radiologic study can reveal whether a nasogastric feeding tube mistakenly has 

been placed in the lung. NT. 5/10/16, a.m. at 72-75. Dr. Igidbashian 

explained that because the trachea and the lung are very close to each other 

anatomically, the tube occasionally and inadvertently may get lodged in the 

lung during insertion. Id. at 75. For this reason, a chest x-ray of the upper 

abdomen, which also encompasses both lungs, allows one to view the whole 

course of the tube and to discern whether the tube has taken the proper 

course from the esophagus into the stomach. Id. at 75-76. 

Thereafter, counsel for Appellee showed Dr. Igidbashian a chest x-ray 

that included the upper abdomen. This image of Mr. Summerford was taken 

during his stay at AMH on August 22, 2008, and its purpose was to check the 

feeding tube placement. Id. at 78-81. AMH objected to testimony concerning 

this study as beyond the scope of Dr. Igidbashian’s expert report. Id. at 82.

The trial court overruled the objection and in doing so reasoned it is 

“foundational and history.” Id. at 82. Dr. Igidbashian then proceeded to 

testify regarding the placement of the feeding tube shown on the August 22, 

2008, x-ray and opine that it had been inserted properly. Id. at 83-85.
J-A31033-17

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In its brief, AMH reasons that the testimony surrounding the August 22nd

x-ray at trial and Dr. Igidbashian’s comparisons of it with Mr. Summerford’s 

December 3rd x-ray, coupled with the reference of Appellee’s counsel to the 

earlier report during closing argument, constitute an unfair and surprise use 

of the evidence and show that it may have affected the verdict. Brief for AMH 

at 31, 34. AMH also contends that in overruling the objection on the basis

that it was “foundational and history,” the trial court abused its discretion by

raising sua sponte an argument not raised by a party. Id. at 32-33. 

We previously reiterated our well-settled standard of review regarding 

evidentiary challenges. When considering this issue in its Rule 1925(a) 

Opinion, the trial court stated the following: 

. . . The front/cover page of Dr. Igidbashian's report contains a 

list of seven "Reviewed Studies and Accompanying Reports." The 

first item on the list is "8/22/2008 5:36pm Portable Chest X-ray." 

Of the seven studies and accompanying reports reviewed, three 

are identified by specific date and time in the body of the report. 

The August 22, 2008, is not one of these three. However, the 

report states: "Other films show different technicians taking 

different studies to check the placement of feeding tubes, 

demonstrating lack of appropriate protocols, enforcement of 

protocols, training, or oversight."

Igidbashian Expert Report, p. 2,¶ 2.

Dr. Igidbashian's report makes clear that the August 22, 

2008, study was one (out of only four) "other films" that indicated 

a lack of uniform procedure in the ordering and performance of xrays to confirm tube placement. Moreover, it was an AMH study, 

so AMH had access to the image and radiologist's report of same 

at all times. The reference to AMH's August 22, 2008 study was 

foundational and part of the patient's history.

Finally, there was not a discrepancy between the pre-trial 

report and Dr. Igidbashian's testimony. Dr. Igidbashian 

referenced the August 22, 2008 study to demonstrate the 

anatomy and path of a feeding tube. N.T. 05.10.16 (a.m.), pp. 
J-A31033-17

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81-85. Dr. Igidbashian's testimony about the August 22, 2008 xray supported his position that different technicians took different 

studies to check the placement of feeding tubes, demonstrating a 

lack of consistency due to the lack of written protocols. No 

standard of care testimony was elicited regarding the August 22, 

2008 study. There was no discrepancy between his report and his 

testimony at trial.

Trial Court Opinion, fled 12/29/16, at 47-48.

Upon our review of the trial transcript, we find no abuse of discretion in 

the trial court’s decision to allow Dr. Igidbashian’s references to the August 

22, 2008, report. As the trial court notes, the discussion concerning the 

August 22, 2008, x-ray, when read in the context of Dr. Igidbashian’s entire 

trial testimony, did not exceed the scope of his expert report or constitute 

unfair surprise, but rather served as an illustrative aid for the jury in its 

understanding of standard medical practice pertaining to radiologic studies 

taken to confirm the proper insertion of a feeding tube. Furthermore, the 

August 22, 2008, x-ray was taken at AMA and was contained within Mr. 

Summerford’s medical records which Dr. Igidbashian testified he had 

reviewed; thus, it cannot be seemed surprising or prejudicial to AMH. 

In its fourth claim, AMH requests this Court to vacate the judgment and 

grant a JNOV or, in the alternative, remand for a new trial because the 

evidence was both insufficient to establish causation and notice with regard to 

the corporate negligence claim brought against AMH and against the clear 

weight of the evidence on these points. AMH reasons that as Dr. Igidbashian 

opined the standard of care required the ordering of a chest x-ray to confirm 
J-A31033-17

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feeding tube placement, and he admitted Dr. Bonica did, in fact, order the xray, “the lack of a policy requiring that a chest x-ray be ordered did not and 

could not have played any causative role whatsoever in this case.” Brief of 

AMH at 35-37. AMH further posits a JNOV should be entered on the corporate 

negligence claim for AMH’s monitoring of Jillian Nickel because the sole 

reference to AMH’s notice of the potential for harm caused by Ms. Nickel’s 

performing improper x-ray studies was responses Dr. Igidbashian provided to 

Appellee’s hypothetical questions at trial. Reasoning that the jury was shown 

x-rays that Dr. Igidbashian indicated were appropriate prior to the December 

3, 2008, x-ray AMH concludes Appellee failed to prove notice, an essential 

element of her claim. Id. at 38-40. 

We have set forth our standard of review for a JNOV above and reiterate 

here our well-settled standard of review of a challenge to the sufficiency of 

the evidence:

The standard we apply in reviewing the sufficiency of the evidence

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant's guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 
J-A31033-17

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considered. Finally, the finder of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Mucci, 143 A.3d 399, 408–409 (Pa.Super. 2016)

(citation omitted), appeal denied, 168 A.3d 1252 (Pa. 2017).

In the alternative, AMH argues it is entitled to a new trial with respect 

to the corporate negligence claim as the jury’s verdict was against the weight 

of the evidence. Id. at 41-44.3 This Court has held that “[a] motion for new 

trial on the grounds that the verdict is contrary to the weight of the evidence, 

concedes that there is sufficient evidence to sustain the verdict.” 

Commonwealth v. Rayner, 153 A.3d 1049, 1054 n. 4 (Pa.Super. 2016) 

(quoting Commonwealth v. Widmer, 560 Pa. 308, 315, 744 A.2d 745, 751 

(2000)). Our Supreme Court has described the standard applied to a weightof-the-evidence claim as follows:

The decision to grant or deny a motion for a new trial based upon 

a claim that the verdict is against the weight of the evidence is 

within the sound discretion of the trial court. Thus, “the function 

of an appellate court on appeal is to review the trial court's 

exercise of discretion based upon a review of the record, rather 

than to consider de novo the underlying question of the weight of 

the evidence.” An appellate court may not overturn the trial 

court's decision unless the trial court “palpably abused its 

discretion in ruling on the weight claim.” Further, in reviewing a 

challenge to the weight of the evidence, a verdict will be 

overturned only if it is “so contrary to the evidence as to shock 

one's sense of justice.”

____________________________________________

3 AMH preserved this challenge to the weight of the evidence by raising it in 

its Motion for Post-Trial Relief filed on May 23, 2016. 
J-A31033-17

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Commonwealth v. Cash, 635 Pa. 451, 466-67, 137 A.3d 1262, 1270 (2016) 

(internal citations omitted). A trial court's determination that a verdict was 

not against the interest of justice is “[o]ne of the least assailable reasons” for 

denying a new trial. Commonwealth v. Colon–Plaza, 136 A.3d 521, 529 

(Pa. Super. 2016) (quoting Commonwealth v. Clay, 619 Pa. 423, 432, 64 

A.3d 1049, 1055 (Pa. 2013)). A verdict is against the weight of the evidence

where “certain facts are so clearly of greater weight that to ignore them or to 

give them equal weight with all the facts is to deny justice.” Commonwealth 

v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (quoting Commonwealth v.

Widmer, 560 Pa. at 318, 744 A.2d at 751–752).

As this Court recently reiterated, in Tompson v. Nason Hospital, 527 

Pa. 330, 591 A.2d 703 (1991) the Pennsylvania Supreme Court “adopted the 

theory of corporate liability, as it relates to hospitals, by holding that the 

defendant hospital owed a non-delegable duty of care toward a patient of a 

doctor with staff privileges at the hospital. Thompson, 591 A.2d at 707.” 

Breslin v. Mountain View Nursing Home, Inc., 171 A.3d 818, 823 

(Pa.Super. 2017). We further observed that the Thompson Court: 

adopted an ostensibly novel theory of liability—“corporate

negligence”—under which a hospital operating primarily on a feefor-service basis can be held liable if it breaches the non-delegable 

duty of care owed directly to the patient to ensure “the patient's 

safety and well-being” while at the hospital. The Court surveyed 

the jurisprudence of other states to identify “four general areas” 

into which a hospital's responsibilities to its patients could be 

classified: (1) duties to use reasonable care in the maintenance of 

safe and adequate facilities and equipment; (2) duties to select 

and retain competent physicians; (3) duties to oversee all persons 
J-A31033-17

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who practice medicine within the hospital's walls; and (4) duties 

to formulate, adopt, and enforce adequate rules and policies to 

ensure quality patient care. Additionally, the Thompson Court 

ruled that the hospital owed a non-delegable duty directly to the 

patient to observe, supervise, or control his/her treatment 

approved by multiple physicians; to apply and enforce its 

consultation and monitoring procedures; and to ensure the 

patient's safety and well-being while at the hospital. See

Thompson, 591 A.2d at 705, 707.

Id. at 823-24 (citation omitted). 

Our review of the record compels our conclusion that the trial court's 

denial of AMH’s sufficiency claim was proper. Viewing the evidence in the light 

most favorable to Appellee as the verdict winner, we find sufficient evidence

to support the conclusions that AMH’s failure to formulate and implement 

appropriate policies and procedures in 2008 regarding chest x-rays was a 

factual cause of Mr. Summerford’s death such that the record contained 

sufficient evidence of a prima facie case of corporate negligence to allow the 

claim to go to the jury. We also find that AMH’s weight-of-the evidence 

argument lacks merit in that it essentially restates that which it articulated in 

support of its challenge to the sufficiency of the evidence. Upon our review 

of the record, we agree with the trial court that as the ultimate fact-finder, 

the jury properly weighed the evidence and found AMH liable under Appellee’s 

claim of corporate negligence. In doing so, we adopt the sound reasoning of 

the trial court on these issues: 

In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 

(1991), the Pennsylvania Supreme Court recognized that a 

hospital can be directly liable for corporate negligence. The

Supreme Court explained the concept as follows:
J-A31033-17

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Corporate negligence is a doctrine under which the 

hospital is liable if it fails to uphold the proper standard 

of care owed the patient, which is to ensure the patient's

safety and well-being while at the hospital. This theory 

of liability creates a nondelegable duty which the 

hospital owes directly to a patient.

Id., 591 A.2d at 707. Under Thompson, a hospital has the 

following duties:

(1) a duty to use reasonable care in the maintenance of 

safe and adequate facilities and equipment; (2) a duty 

to select and retain only competent physicians; (3) a 

duty to oversee all persons who practice medicine within 

its walls as to patient care; and (4) a duty to formulate, 

adopt and enforce adequate rules and policies to ensure 

quality care for the patients.

Id. (citations omitted).

In addition, "[t]o establish a claim for corporate negligence 

against a hospital, a plaintiff must show that the hospital had 

actual or constructive knowledge of the defect or procedures that

created the harm. Thompson." Welsh v. Bulger, 698 A.2d 581,585 

(Pa. 1997). Finally, "[t]he plaintiff also must establish that the 

hospital's negligence was a substantial factor in causing the harm 

to the injured party." Id.

The evidence at trial demonstrated that AMH's failure to 

formulate, adopt and enforce appropriate written policies and 

procedures regarding the performance of chest x-rays was a 

factual cause of the tragic outcome in this case. Dr. Igidbashian 

explained that AMH did not have a policy in place in 2008 directing 

the proper study to determine placement of a feeding tube:

MR. TRUNK: Did [AMH] have a policy in place?

DR. IGIDBASHIAN: Not that I saw.

Q. Did they have any protocols in place?

A. Not that I saw.

Q. Did the standard of care require that a hospital, like 

Abington Memorial Hospital in 2008, have a procedure or 

protocol in place to check the placement of a feeding tube?

A. Yes.
J-A31033-17

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 N.T. 05.10.16 (a.m.), p. 131.

X X X

Q. What should a policy or procedure in 2008 have required 

the study be to check the placement of a feeding tube?

A. A chest x-ray to include the upper abdomen.

Q. And in that chest x-ray, what part of the anatomy should 

have been captured or should the policy say should be 

captured in that study?

A. The main airway, the trachea, the lungs, and the 

esophagus; those should be in there. And you get a portable 

chest x-ray.

N.T. 05.10.16 (a.m.), p. 133.

Dr. Crisci acknowledged that AMH's x-ray 

technologist, Jillian Nickel, took an abdominal x-ray and not 

a chest x-ray as ordered by Dr. Bonica:

MR. TRUNK: So, with that in mind, we can agree that the 

x-ray that Miss Nickel, the technologist, took was a film 

different than the study Dr. Bonica had ordered, correct?

DR. CRISCI. That is absolutely correct.

Q. Dr. Bonica ordered a chest x-ray and Miss Nickel took an 

abdominal x-ray, correct?

A. That is absolutely correct.

N.T. 05.10.16 (p.m.) p. 93.

AMH x-ray technologist Jillian Nickel and AMH radiology 

manager Joan Diaz both testified that AMH lacked any written 

policy regarding the duties of a radiology technician. Ms. Nickel 

testified as follows:

MR. TRUNK: Now, as of 2008, I'm talking December of 

2008, at the time of Mr. Summerford's death, there were no 

written policies at Abington Memorial Hospital regarding the duties 

you performed as a radiology technician or technologist, correct?
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JILLIAN NICKEL: No.

Q. I'm incorrect?

A. Huh?

Q. I'm incorrect or I'm correct that there were no written 

policies?

A. Correct.

X X X

Q. Okay. As a matter of fact, you got the study that you 

intended to get that day [December 3, 2008], right?

A. Yes.

Q. You got from the base of the lungs down even a little 

lower than the iliac crest, right?

A. Yes.

Q. And when you took that x-ray, you thought you were 

following what was a protocol at Abington Memorial 

Hospital, correct?

A. For an Entec placement, yes.

Q. For an Entec placement, and that's something that you 

say your boss, Joan Diaz, told you to do?

A. Yes.

N.T. 05.11.16 (p.m.) pp. 23-27.

Ms. Diaz testified as follows:

MR. TRUNK: Your responsibilities [as radiology manager at 

AMH from 1999-2008] relating to x-rays included 

overseeing staff, scheduling and operational means, 

correct?

JOAN DIAZ: Correct.
J-A31033-17

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Q. And in 2008, as of 2008, the time of Mr. Summerford's 

care, there were no protocols or policies regarding the 

anatomy a radiology technologist should capture when 

viewing an x-ray to check the placement of a feeding tube; 

do you agree with that?

A. Written? Correct.

Q. Okay. There were no policies, written or otherwise?

A. There were no policies.

N.T. 05.11.16 (p.m.) p. 34.

And later:

MR. TRUNK: Back in 2008, was there any policy or protocol 

or guideline or anything that said that when checking the 

placement of a feeding tube, you need to get the upper 

chest, and you need to get the airway down to the 

abdomen? Was there anything like that?

A. No.

N.T. 05.11.16 (p.m.) p. 41.

Finally, Dr. Igidbashian testified that AMH's breach 

significantly increased the risk of harm to Mr. Summerford.

Q. And we talked about that there was no policy at 

Abington, policy or procedure or protocol, as to what study 

should be used to check the placement of a feeding tube. 

Was that a breach of the standard of care?

A. Yes.

Q. And did that increase the risk of harm to Mr. 

Summerford?

A. Yes.

Q. Back in 2008, should a hospital have known what could 

happen or what harm could result if the wrong study is taken 

to check the placement of a feeding tube?
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A. Yes.

Q. And what should they have known about that? What did 

the standard of care require that a hospital know could 

happen, what harm could happen, if the wrong study is 

taken to check the placement of a feeding tube?

A. That the patient can be severely affected by the 

malpositioned tube.

Q. And affected, is that in a bad way?

A. Harm to the patient.

N.T. 05.10.16 (a.m.), pp. 137-138.

This testimony sufficiently sets forth a prima facie case of 

corporate negligence.11 The evidence in the record clearly 

established there were no written policies or protocols in place in

2008 regarding the performance of a chest x-ray. Ms. Nickels did 

not obtain a chest x-ray as ordered by Dr. Bonica. The technicians 

were left on their own to determine what anatomy to image. There 

was inconsistency within the department regarding how a chest 

x-ray should be performed. Dr. Igidbashian stated that the 

December 3rd x-ray failed to include portions of Mr. Summerford's 

airway to enable Dr. Crisci to make a correct interpretation.

Dr. Igidbashian's expert testimony established that AMH's 

lack of written policies was below the standard of care and 

increased the risk of harm to plaintiffs decedent. Further, he 

testified that AMH should have known of the harm which could 

result from a wrong study to confirm placement of a feeding tube.

Since the record contained sufficient evidence of a prima facie 

case of corporate negligence, the court correctly allowed that 

claim to go to the jury. The jury's verdict was supported by 

substantial evidence and the trial court properly denied AMH's 

request for JNOV on this ground. Robinson v. Upole, 750 A.2d 339 

(Pa.Super.2000); Rohm & Haas Co. v. Continental Cas. Co., 732 

A.2d 1236, 1247 (Pa.Super.1999) quoting Moure v. Raeuchle, 529 

Pa. 394,604 A.2d 1003, 1007 (1992). 

***

As earlier stated, Dr. lgidbashian testified as follows:
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Q. We saw earlier that Dr. Bonica, first, ordered a chest xray. And you told us that Jillian Nickel, the technologist, performed 

an abdominal study. Was that a breach of the standard of care?

A. Yes.

Q. And did that increase the risk of harm to Mr. 

Summerford?

A. Yes.

N.T. 5.10.16 (a.m), p. 136.

Q. If in this case Jillian Nickel testified -- this is a 

hypothetical question now, Doctor. If in this case Jillian Nickel 

testified, the technologist testified, that she was taught that you

check the placement of a feeding tube by taking a study that goes 

from the base of the lungs, or the bottom of the lungs, down to 

the iliac crest, is that the proper study to take to check the 

placement of a feeding tube?

A. No.

Q. Why not?

A. Because you don't see the airway.

Q. AndA. You can't see the course of the tube.

Q. If that is what she was taught, would that be a breach of the 

standard of care?

A. Yes.

Q. And if that's how she was performing studies to check the 

placement of a feeding tube, is that a breach of the standard of 

care?

A. Yes.

N.T. 5.10.16 (a.m.), p.140.
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There was sufficient evidence that the conduct of Jillian 

Nickel was below the standard of care and that AMH was 

vicariously liable for the conduct of its employee. Accordingly, 

AMH is not entitled to judgment n. o. v. on this ground.

___

11 Dr. Igidbashian also testified that AMH breached its duty to 

provide oversight of how Ms. Nickels performed studies to check 

the placement of a feeding tube which increased the risk of harm 

to Mr. Summerford. N.T., 5.10.16 (a.m.), p.p. 139-141. AMH 

does not challenge on appeal the sufficiency of evidence offered 

in this regard. 

Trial Court Opinion, filed 12/29/16, at 33-39. 

AMH next argues this Court should vacate the judgment and grant a 

JNOV or, in the alternative, remand for a new trial on the vicarious liability 

claim against AMH due to the trial court’s permitting Dr. Igidbashian to opine 

as to Ms. Nickel’s conduct, although he was no qualified to do so. In setting 

forth this claim, AMH states the following: 

It was undisputed that AMH staff would (and did) only begin 

feeding when a radiologist confirmed the placement of a feeding 

tube. Therefore, liability in this case was hinged entirely on Dr. 

Crisci’s misinterpretation of the x-ray, which [Appellee] succeeded 

on at trial; but [Appellee] should not have been permitted to 

convert that error into a claim of negligence against AMH for the 

taking of the December 3 x-ray itself. 

***

And so, because the evidence was sufficient for the jury to 

find that [Appellee] proved that Dr. Crisci was negligent for 

misreading the x-ray taken then, necessarily, the verdict against 

AMH on the theory that a different x-ray study should have been 

done by Jillian Nickel, was against the clear weight of the 

evidence. . . . 

Brief of AMH at 52, 54 (emphasis in original). 
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In the alternative, AMH asserts the verdict on the vicarious liability claim

was against the clear weight of the evidence and unsupported by proficient 

expert testimony, for Dr. Igidbashian admitted he is not a radiology 

technologist who has taken x-ray films and has not positioned a patient for 

over thirty years. Brief of AMH at 55. 

We previously set forth herein the liberal standard for the qualification 

of an expert witness. Dr. Igidbashian testified he had thirty years of 

experience in the radiology field and maintained an active medical practice in 

that field. He also worked as a clinical instructor in radiology and served as 

chairman of the St. Francis Hospital Radiology Department where he 

developed a policy and procedure concerning the radiologic confirmation of 

the placement of a feeding tube. N.T. Trial, 5/10/16 a.m. at 7-17. Although 

there was no objection to Dr. Igidbashian’s testifying as an expert in the field 

of radiology and in the field of radiological checking of feeding tubes, Id. at 

33, the trial court allowed Dr. Igidbashian to testify, over objection, as an 

expert regarding policies, procedures, and protocols relating to feeding tubes 

from a radiologic perspective. Id. at 33-34, 64-65. 

In Vicari v. Spiegel, 605 Pa. 381, 989 A.2d 1277 (2010), our Supreme 

Court found an oncologist to be qualified to testify as an expert against both 

an otolaryngologist and radiation oncologist in a medical malpractice case, 

even though the oncologist was board certified by a different board and 

practiced in a different subspecialty than the defendant physicians. Therein, 
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the oncologist testified as to whether the standard of care for the defendant 

physicians included a requirement that they offer a patient suffering from 

tongue cancer the option of follow-up chemotherapy and treatment with a 

medical oncologist. The Court found the oncologist possessed sufficient 

training, experience and knowledge to testify as to the standard of care due 

to his active involvement in a related medical field and the fact he had 

maintained a clinical practice for 30 years, which included the administration 

of chemotherapy to cancer patients, including head and neck cancer patients. 

Herein, Dr. Igidbashian instructed and supervised radiology technologists 

concerning proper procedures that he, himself, helped to create in a hospital 

setting and in his role as Chairman of the Radiology Department at St. Francis 

Hospital. N.T., 5/10 16 a.m. at 58. In light of all the foregoing, we find the 

trial court properly permitted Dr. Igidbashian to testify regarding the 

applicable standard of care of radiology technologists generally and the 

actions of Ms. Nickel herein. 

Finally, AMH alleges that a new trial on damages or a remitter is required 

herein. AMH stresses that when the eighty-eight-year-old Mr. Summerford 

was admitted to the hospital on November 30, 2008, his prognosis was bleak 

as he suffered from numerous ailments, was critically ill, and had a life 

expectancy of only one year. AMH adds that Mr. Summerford was sedated 

throughout the time the feeding tube was inserted and the entire evening of 

December 3rd into December 4th, 2008; therefore, he does not have a 
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substantial claim for pain and suffering of the type “usually seen in awards in 

the mid-seven figures.” Brief of AMH at 57-58. AMH explains that Mr. 

Summerford had no employment prospects and no economic damages were 

sought herein; thus, the 3.5 million survival act award exceeds “appropriate 

comparison with economic damages” and is “grossly exorbitant” and “shocks 

the conscience.” Id. at 59-60. 

Upon noting that AMH’s arguments on this issue essentially mirror those 

presented by Dr. Crisci and RGA in their challenges to the damage award and 

in light of our disposition of that claim supra, we find AMH is not entitled to 

relief on this final issue. 

Judgment affirmed. 

Judge Panella joins the Opinion.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/18