Judges Opinions, — December 26, 2018 10:00 — 0 Comments

Bashore v. The Good Samaritan Hospital of Lebanon PA No. 2009-00078

Civil Action-Law-Medical Malpractice-Stroke-Administration TPA Infusion-Direct Corporate Negligence-Vicarious Liability-Stipulation to Discontinue Action-Motion to Strike Off Discontinuance-Mistake-Prejudice

Plaintiffs filed a medical malpractice action including allegations of direct corporate negligence and vicarious liability after Plaintiff Sandra K. Bashore (“Bashore”) had undergone elective knee surgery the day before, was found unresponsive and suffered a stroke while a patient in Defendant’s facility. Following discovery and the exchange of expert reports, the parties lodged a Stipulation that discontinued with prejudice all claims except one (1) on the basis that Defendant’s representative had indicated in a deposition that Defendant did not permit the administration of TPA infusions to stroke victims at the time of the stroke. The only claim that remained was a claim of vicarious liability for the conduct of nursing staff for delay in contacting a physician once Bashore’s condition was observed. Plaintiffs filed a Motion to set aside the stipulation docketed, asserting that they received documentation that previously had been requested from Defendant indicating that a physician had been involved in Bashore’s care treatment earlier than previously had been disclosed, Defendant had the capability to provide TPA infusions to stroke victims at that time and the neurology provider who treated Bashore indicated that a TPA infusion would have been administered to Bashore if he had ordered it.

1. Pa.R.C.P. Rule 229(c) provides that the court may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense or prejudice.
2. The authority to strike off a discontinuance is vested in the sound discretion of the trial court, which will not be reserved absent an abuse of discretion.
3. A trial court does not abuse its discretion by refusing to strike off a discontinuance where the plaintiff fully was aware that his or her representative had entered a discontinuance upon the plaintiff’s receipt of monetary consideration, the plaintiff was unable to prove that the discontinuance was a result of fraud, imposition or mistake or the discontinuance was entered to enable the plaintiff to bring a new action in another court.
4. In considering what constitutes prejudice pursuant to Rule 229(c), the court must consider prejudice to both sides and balance the competing interests of the parties, including whether allowing the action to proceed after discontinuance would put the defendant at any significant disadvantage.
5. Where Defendant’s representative initially indicated in deposition testimony that Defendant would have required a physician ordering a TPA infusion to be present to administer the TPA infusion, the neurology provider after the Stipulation had been filed indicated that the TPA infusion would have been administered by Defendant if an accepting facility would have instructed the same and another representative of Defendant later contradicted the testimony of these individuals by stating that Defendant had no policy for administration of TPA infusions for stroke patients even if a physician had ordered it, these circumstances constitute the type of mistake that justifies setting aside the Stipulation for discontinuance of claims of direct corporate negligence.
6. While Defendant will be prejudiced in the sense that it will have to defend against the claim, there is no significant disadvantage to Defendant’s ability to defend the claim since discovery already has been conducted on this issue and any prejudice to Defendant is outweighed by the prejudice Plaintiffs would suffer if denied the right to pursue the claim in light of the passage of the statute of limitations.
L.C.C.C.P. No. 2009-00078, Opinion by John C. Tylwalk, President Judge, April 5, 2018.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CIVIL DIVISION NO. 2009-00078

SANDRA K. BASHORE and DALE BASHORE, w/h v.
THE GOOD SAMARITAN HOSPITAL OF LEBANON, PENNSYLVANIA a/k/a THE GOOD SAMARITAN HOSPITAL

APPEARANCES:

MARSHA SANTANGELO, ESQUIRE FOR PLAINTIFFS
THE BEASLEY LAW FIRM

MICHAEL MONGIELLO, ESQUIRE FOR DEFENDANT
MARSHALL, DENNEHEY, WARNER
COLEMAN & GOGGIN

OPINION, TYLWALK, P.J., APRIL 5, 2018.
This is a medical malpractice action which arose when Plaintiff Sandra K. Bashore suffered a stroke while she was a patient in Defendant’s facility. Mrs. Bashore was found to be unresponsive early in the morning of January 23, 2007 after having undergone elective knee surgery the previous day. Plaintiffs’ original claims had included assertions of direct corporate negligence and vicarious liability based on the conduct of its ostensible agent physicians against Defendant. However, after discovery and exchange of expert reports, the parties executed a Stipulation on December 14, 2015 which discontinued, with prejudice, all claims against Defendant except those for vicarious liability for the conduct of the nursing staff for delay in contacting a physician once Mrs. Bashore’s condition was observed. A two-week jury trial in this matter was previously scheduled to commence August 14, 2017, but was rescheduled to the March 2018 Civil Trial Term. After Defendant requested a continuance of the March jury trial with Plaintiffs’ concurrence, the jury trial was rescheduled to commence on September 10, 2018.
Plaintiffs have filed a Motion seeking to set aside the Stipulation of December 14, 2015. They claim that shortly prior to the time trial was to begin on August 14, 2017, they received documentation from Defendant which contained new information regarding the timing of the nursing staff’s first consultation with a physician after Mrs. Bashore’s condition was observed. They claim that this documentation was within the scope of their previous discovery requests, but was not provided in Defendant’s prior responses.
Defendant explains that on July 26, 2017, Plaintiffs’ counsel requested that Mrs. Bashore’s original medical records, along with the original films of the head CT scan which was performed on January 23, 2007, be made available for trial. On August 3, 2017, Defendant’s counsel obtained those items from GSH and the new document, the “Requisition Slip,” and a preliminary interpretation report were discovered and were immediately provided to Plaintiffs’ counsel on August 4, 2017. The Requisition Slip indicated that a physician had been involved in Mrs. Bashore’s care and treatment slightly earlier on the morning of January 23, 2007 that had previously been known.
Based on this information, Plaintiffs sought a continuance from the August Trial Term and filed a Motion to Set Aside Stipulation, arguing that the new information regarding timing could have provided Defendant with an “empty chair” defense on the claims against the nursing staff. We granted the continuance and permitted the re-opening of discovery, but denied the Motion to Set Aside Stipulation with leave for Plaintiffs to refile the Motion if deemed necessary by any evidence produced during the new discovery period.
In their present Motion, Plaintiffs explain that the aforementioned claims against Defendant were discontinued based on information supplied during initial discovery and based on expert reports which indicated that, at the time Mrs. Bashore suffered her stroke, Defendant’s facility had the capability to give TPA to stroke victims and that, although Narendra Dhaduk, M.D., the neurologist who treated Mrs. Bashore at GSH, could not recall whether he had privileges to order TPA at that time, TPA would have been administered to Mrs. Bashore if he had ordered it. During his deposition, Dr. Dhaduk explained that if a TPA infusion had been started at Good Samaritan Hospital (“GSH”), Mrs. Bashore could have been transported to Hershey Medical Center (“HMC”) for further stroke management.
During the additional discovery period, Plaintiffs scheduled the deposition of Defendant’s representative, Theresa Olinger. Ms. Olinger divulged that at the time of Mrs. Bashore’s stroke, GSH did not permit the administration of TPA to stroke patients, even if the nursing staff had contacted the physician in a timely manner, and even if TPA had been ordered for Mrs. Bashore. Plaintiffs argue that they should now be permitted to pursue the theory that because GSH had the facilities and personnel to administer TPA to patients for conditions other than stroke, it should have had a mechanism in place to enable stroke victims to receive TPA regardless of whether the doctor managing the patient’s care had privileges to order it.
With regard to consideration of a plaintiff’s request to strike a discontinuance, the court in Nastasiak v. Scoville Enterprises, Ltd., 618 A.2d 471 (Pa. Super. 1993) noted:
Authority for striking off a discontinuance appears in Pa.R.C.P. 229(c) as follows:
(c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense or prejudice.
“The authority to strike off a discontinuance is vested in the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion.” Hopewell v. Hendrie, 386 Pa.Super. 264, 266, 562 A.2d 899, 900 (1989), allocatur denied, 525 Pa. 618, 577 A.2d 890 (1990). The trial court’s discretion, however, is not unlimited. Pa.R.C.P. 229(c) expressly provides for the striking of a discontinuance when necessary to protect either party from unreasonable inconvenience, vexation, harassment, expense or prejudice. Id.
The decided cases have held that a trial court does not abuse its discretion by refusing to strike off a discontinuance where (1) the plaintiff was fully aware that his or her lawyer had entered a discontinuance and the lawyer had been authorized to enter a discontinuance upon the client’s receipt of monetary consideration, Thomas v. Hempt Brothers, 402 Pa. 369, 167 A.2d 315 (1961); (2) the plaintiff was unable to prove that the discontinuance was a result of fraud, imposition or mistake, Murdoch v. Murdoch, 418 Pa. 219, 210 A.2d 490 (1965); (3) the discontinuance was entered to enable the plaintiff to bring a new action in another court, Pratt v. Best Builders of Pennsylvania, Inc., 3 D. & C.3d 149 (Chest.1977).
Nastasiak v. Scoville Enterprises, Ltd., 618 A.2d at 544-545. In discussing Hope v. Hendrie, supra, the case relied on by Plaintiffs here, the court further observed:
With respect to the issue of prejudice, the Court said:
We note first that Rule 229(c) does not expressly require that the court consider any possible prejudice to the party opposing the striking of the discontinuance. However, the rule does focus on prejudice and we consider it appropriate to consider prejudice to both sides and balance the competing interests of the parties.
On the surface, it is clear that appellees will be prejudiced in the sense that they will have to defend the action. However, we do not see this as the kind of prejudice that should be focused on…. The prejudice that is relevant is the impact on the defendant’s ability to defend. We must focus on whether allowing the action to proceed after it had been discontinued will put the defendant at any significant disadvantage.
Id. at 268, 562 A.2d at 901. The Superior Court determined that the ten month discontinuance had not impacted adversely on the defendant’s ability to defend, but that plaintiff would be seriously prejudiced if he could not proceed because a second action would be barred by the statute of limitations.
Nastasiak v. Scoville Enterprises, Ltd., 618 A.2d at 545-546, citing Hopewell v. Hendrie, 562 A.2d 899, 901 (Pa. Super. 1989).
Defendant relies on the following testimony of its representative, Jacquelyn Gould, during her deposition on January 22, 2015, in support of its proposition that Plaintiffs were aware of the facts surrounding its claim of direct corporate liability prior to entering the discontinuance:
Q. What, if any, provisions did Good Samaritan Hospital have to administer intravenous TPA to stroke patients as of January of 2007 if ordered by a physician?
A. We did not obviously include that in our policy because it was not in use for stroke patients here in 2007.
(Deposition of Jacquelyn Gould, 1/22/15, Exhibit “E” to Defendant’s Brief in Opposition to Motion to Set Aside at p. 27)
However, upon further questioning to explain GSH’s policy in 2007, Ms. Gould explained:
Q. If a doctor here wanted to give a patient intravenous TPA in January of 2007, is that something that the pharmacy and nursing staff would be able to carry out if a doctor gave that order?
A. Are you speaking for stroke patients?
Q. Yes, stroke patients.
A. Obviously, we had the medication, so the pharmacy could supply it. Nurses had hung those intravenous drips for other patients, so technically they would have had the ability to do it.
We would have probably, and that’s probably, required the physician to be there because the nurses were unfamiliar with its use for stroke patients.
(Deposition of Jacquelyn Gould, 1/22/15, Exhibit “E” to Defendant’s Brief in Opposition to Motion to Set Aside at p. 28)
In addition, during his deposition on January 9, 2015, Dr. Dhaduk testified as follows:
Q. Okay. With respect to the issue of TPA, let me ask you this: Did Good Samaritan Hospital have the capability to administer any type of thrombolytic therapy to inpatients at Good Samaritan Hospital who had strokes as of January of 2007?
A. They – any TPA? Any TPA, yes.
Q. Intravenous or intra-arterial?
A. Yes. No, not intra-arterial. We do not have the capacity to do intra-arterial. Intravenous, they do that, yes.
Q. Okay. So I understand correctly – is it your testimony that as of January of 2007, Good Samaritan Hospital did have the capability to give intravenous TPA to stroke patients?
A. That is correct.

Q. If you had wanted, if you had believed it was appropriate to give her intravenous TPA, and you had wanted to order that, is that something that you could have done at Good Samaritan Hospital?
A. If the Hershey Medical Center agreed to do that. Usually, the practice at the time was, if you use a TPA, we do not have a neurosurgeon at this hospital, so we have to transfer the patient to the facility where the neurosurgeon is available.

Q. And I just want to be clear as to whether Good Samaritan Hospital did or did not have the capability to administer intravenous TPA to stroke patients as of January of 2007?
A. No. Only we could start here, but it’s to transfer the care where the neurosurgeon is available.
Q. Okay. So you could start the infusion here at Good Samaritan Hospital, and then the patient would be transferred out to another facility?
A. Accepting facility will direct that, that they will basically give you direction, “This is what I want you to do, and then this is what we do.”
(Video Deposition of Narendra Dhaduk, M.D., 1/9/15, Exhibit “K” to Plaintiffs’ Memorandum of Law in support of Motion to Set Aside Stipulation, at pp. 59-63)
However, during the period permitted for the re-opening of discovery, Ms. Olinger testified during her deposition on September 1, 2017:
BY DR. SANTANGELO: Are you disputing the proposition that Mrs. Bashore could have received intravenous TPA at this hospital if Dr. Dhaduk had ordered it?
THE WITNESS: From the information I have, we did not have a policy to give TPA to stroke patients at that time.
And, to my knowledge, Dr. Dhaduk did not have – excuse me – did not have privileges to give TPA at that time.
BY DR. SANTANGELO: Are you aware that Dr. Dhaduk has testified at his deposition that he could have given – that had he wanted to give TPA to Mrs. Bashore, that he could have done so?
THE WITNESS: No, I don’t know that.

BY DR. SANTANGELO: … Is it your testimony that had a physician ordered Mrs. Bashore to get IV TPA at this hospital in January of 2007, that could not have been done?
MR MONGIELLO: … For a diagnosis of stroke?
DR. SANTANGELO: Yes.
THE WITNESS: My understanding that we did not have the policy or the situation to do that.

BY DR. SANTANGELO: So my question to you is, if a physician at this hospital had ordered that Mrs. Bashore be given intravenous TPA for her stroke on the morning of January 23, 2007, are you telling us that it could not have been done at this hospital?
THE WITNESS: … [F]rom an administrative standpoint, if a physician does not have privileges for a particular procedure, that we should not be allowing them to write orders and then subsequently give based on those orders.
BY DR. SANTANGELO: … [I]f there had been a doctor’s order for TPA given to this – to be given to this patient on the morning of January 23 for her stroke, are you telling us that the hospital would not have allowed that to happen?
THE WITNESS: I don’t know.
(Deposition of Theresa Olinger-Hummel, 9/1/17, Exhibit “D” to Defendant’s Brief in Opposition to Motion to Set Aside Stipulation, at pp. 89-94)
We believe Plaintiffs were justified in reaching the conclusion that GSH would have provided the intravenous TPA to Mrs. Bashore upon the order of a physician when the Stipulation was entered in December 2015. Ms. Gould’s testimony indicated that TPA could have been administered to a stroke patient upon a physician’s order, but that the hospital would have required the physician to be present at the time of such treatment. Dr. Dhaduk’s testimony indicated that if the consulting HMC neurosurgeon had directed Dr. Dhaduk to order TPA for Mrs. Bashore, the intravenous TPA would have been administered at GSH prior to Mrs. Bashore being transferred to HMC for further treatment. In contrast, Ms. Olinger’s September 2017 testimony contradicts the prior testimony of those two witnesses when she unequivocably stated that GSH had no policy for the administration of TPA to patients in Mrs. Bashore’s condition, even if a physician had so ordered.
We find that this is the type of mistake which justifies our setting aside the Stipulation by which the claims of direct corporate negligence had been discontinued by Plaintiffs. Plaintiffs relied on the testimony of Ms. Gould, who had been designated to testify on behalf of Defendant, and Dr. Dhaduk, a neurologist who had been granted privileges to practice at GSH. Both witnesses claimed familiarity with GSH policies at the time Mrs. Bashore suffered her stroke and both indicated that TPA could have been given upon a physician’s order.
Defendant will, of course, be prejudiced in the sense that it will now be required to defend against this claim. However, we see no significant disadvantage to Defendant’s ability to defend as discovery on this issue has already been conducted and Defendant has ample time before the September 2018 trial date to obtain new expert reports and otherwise prepare for trial. Moreover, we believe that any prejudice to Defendant is outweighed by the prejudice Plaintiffs will suffer if they are denied the right to pursue this claim as the applicable statute of limitations has long passed. Plaintiffs acted promptly in moving to set aside the discontinuance of this claim and the discontinuance was not entered with the purpose of obtaining any procedural advantage for Plaintiffs.
For these reasons, we will grant Plaintiffs’ Motion to Set Aside the Stipulation of December 14, 2015 to permit Plaintiffs to pursue the claim of direct liability against Defendant. However, Plaintiffs have failed to set forth any reasons to set aside the Stipulation discontinuing its claims for vicarious liability as to the actions of Defendant’s ostensible agent physicians and we will deny the request to set aside the discontinuance as to those claims. We will set new deadlines for the exchange of expert reports, dispositive motions, motions in limine, requests for voir dire questions, and jury instructions after consultation with counsel at the Status Conference scheduled in this matter for May 7, 2018.

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