Locke, T. v. Fox Chase Cancer Center

J-A10017-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TINA LOCKE, INDIVIDUALLY AND AS : IN THE SUPERIOR COURT OF

ADMINISTRATIX OF THE ESTATE OF : PENNSYLVANIA

REGINA LOCKE, DECEASED :

:

Appellant :

:

:

v. :

: No. 237 EDA 2019

:

FOX CHASE CANCER CENTER, :

JEFFREY THORLEY, M.D., MALA :

KAILASAM, M.D., WILLOWCREST :

REHAB, ALBERT EINSTEIN MEDICAL :

CENTER, MANMEET SINGH, M.D., :

JEANES HOSPITAL :

Appeal from the Order Entered January 2, 2019

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

No(s): December Term, 2014 No. 03551

BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 19, 2020

Tina Locke (Locke), Individually and Administratrix of the Estate of

Regina Locke, Deceased, appeals from the judgment entered against her and

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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in favor of the Fox Chase Defendants1 in this medical malpractice action.2 As

succinctly summarized by the trial court:

Tina Locke[] sued the medical providers involved in the care of

her mother, Regina Locke. Regina Locke was a bladder cancer

patient who died in 2013 of complications from a fungal and

urinary tract infection that spread to her kidneys. [Tina Locke]

alleged at trial that [the Fox Chase] Defendants were negligent in

failing to timely and accurately diagnose and treat [Regina

Locke’s] infections, in failing to order additional tests, and in

failing to promptly follow up on a notable test result.

On appeal, Locke challenges the court’s denial of her motion for a new

trial on the bases of an allegedly erroneous jury instruction and the court’s

preclusion of the autopsy report. We affirm.

I.

We provide the following more detailed statement of facts and

procedural history based on our independent review of the record and the trial

court’s June 11, 2019 opinion.

After Regina Locke was diagnosed with bladder cancer in October 2012,

she immediately began aggressive treatment. In October and December

2012, she underwent two surgical procedures on her bladder and had a stent

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1The Fox Chase Defendants included Fox Chase Cancer Medical Group, Inc.;

American Oncological Hospital, A/K/A Fox Chase Cancer Center; Jeffrey

Thorley, M.D.; and Mala T. Kailasam, M.D.

2 On August 29, 2018, the court entered a non-suit against, inter alia, Albert

Einstein Medical Center; Willowcrest Rehab; Manmeet Singh, M.D. and Jeanes

Hospital.

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placed in her uterer. After those procedures, she had the following

interactions with medical providers.

A.

Fox Chase January 3-9, 2013

On January 3, 2013, Ms. Locke met with her surgeon at Fox Chase to

discuss removal of her bladder. The surgeon observed concerning symptoms,

including an elevated heart rate and general weakness. He referred her for

immediate inpatient admission due to his suspicion that she had an infection,

for which she was at an especially high risk because of her cancer, recent

surgeries, ureter stent and status as a diabetic. She was sent to the Direct

Response Unit (DRU) at Fox Chase for examination. Dr. Jeffrey Thorley was

her attending physician between January 3-6, 2013, while Dr. Mala Kailasam

was her attending physician between January 6-9, 2013. The DRU staff

agreed with the surgeon’s findings, and they noted a high white blood cell

count (another infection indicator), plus a history of altered mental status over

the previous few days. After giving Ms. Locke a Foley catheter, the drainage

bag began to show blood and pus. Additionally, a mysterious five-centimeter

“worm-like” object was discovered in the bag. (N.T. Trial, 8/28/18, at 71).

Dr. Thorley ordered that the contents of her catheter bag be sent to the

pathology lab for analysis.

In the resulting pathology report, Ms. Locke was diagnosed with a

“complicated” urinary tract infection (UTI) due to her being a recent surgical

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patient with cancer and locally impaired immune function causing her to be

admitted.3 The complicated UTI had a greater chance of higher severity, of

spreading to nearby organs like the kidneys, and a larger pool of potential

infecting pathogens. Although this pathology lab was completed on January

3, 2013, it was not reported until six days later, on January 9, 2013, and Dr.

Thorley did not attempt to follow up about it before that date.

A urine culture also was performed on Ms. Locke, which identified a

bacterial pathogen. She was treated for this bacterial infection 4 with

antibiotics and appeared to improve after six days. On the sixth day, January

9, 2013, Dr. Kailasam discharged Ms. Locke at 3:00 P.M. after reviewing all

then-available labs. At 3:42 P.M., after Ms. Locke had been discharged, the

pathology report was sent up and it identified the “worm” as an “inflammatory

clot with fungi and bacteria.” (N.T. Trial, 8/28/18, at 95). Dr. Kailasam’s

discharge note was entered at 5:42 P.M., but she testified that she did not

remember if she saw this pathology report between the time she discharged

Ms. Locke at 3:00 P.M. and writing her note at 5:42 P.M.

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3 UTIs are designated as “complicated” or “uncomplicated” based on the

relative health of the patient.

4 Infections may be either bacterial, fungal or polymicrobial (both). Bacterial

and fungal infections respond to different treatments and, therefore, must be

treated with antibiotic and antifungal medications.

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B.

Willowcrest Rehab and Einstein Medical Hospital

January 10-14, 2013

After being discharged from Fox Chase, Ms. Locke had intervening

encounters with Willowcrest Rehab and Einstein Medical Center from January

10-14, 2013. On January 10, 2013, Ms. Locke’s daughters brought her to

Willowcrest Rehab at Einstein Medical Center where she was admitted for

skilled nursing care. At first, Ms. Locke remained stable, but by January 13,

2013, her condition had worsened and she had a fever of 103.1 degrees. A

new urine culture revealed a significant positive result for fungus (greater than

100,000 colonies of yeast),5 an elevated white blood cell count and decreased

kidney function.

Although Ms. Locke was transferred to the emergency room at Albert

Einstein Medical Center at that time, her labs were not forwarded, and the

only mention of the urine culture in the notes was that there had been a

positive finding of yeast, but that the Willowcrest doctor thought that the test

was likely contaminated and unreliable. The notes did not mention the

100,000 colonies of yeast. The ER staff treated Ms. Locke with an antibiotic

only. Although an infectious disease consult was ordered, it had not been

____________________________________________

5 Locke’s experts opined that this result confirmed that Ms. Locke had a yeast

infection of the urinary tract.

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conducted by the time Ms. Locke’s daughters arranged for a transfer back to

Fox Chase on January 14, 2013.

C.

Fox Chase January 14-19, 2013

Ms. Locke was readmitted to Fox Chase on January 14, 2013, and

remained there until January 19, 2013. During this time, Dr. Thorley was

again her attending physician. Nurses attempted to take a urine culture upon

Ms. Locke’s readmission but were unable to do so due to her urinary

incontinence. No further attempts at a culture were attempted and the nurses

did not inform the doctors that one had not been taken. There was no new

infectious disease consult ordered, although the transfer notes reflected that

one had not taken place. Additionally, no one at Fox Chase spoke with

Willowcrest staff about the details of the positive yeast culture. Ms. Locke was

given one last dose of the antibiotics she had started at Willowcrest, but they

were discontinued on January 15, 2013, with no replacement therapies.

On January 16, 2013, Ms. Locke experienced a fever of 102 degrees,

tachycardia, increased creatine and other symptoms evidencing a UTI. No

infectious disease consult was ordered, and on January 18, 2013, she

experienced a myocardial infarction and went into cardiogenic and septic

shock. She was transferred to Jeanes Hospital for emergency cardiovascular

surgery.

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D.

Jeanes Hospital and Fox Chase January 19-29, 2013

Ms. Locke began her treatment at Jeanes Hospital on January 19, 2013.

On January 20, 2013, Ms. Locke had an infectious disease consult. After

another culture was positive for yeast, Ms. Locke was started on antifungals.

When her condition stabilized, she was transferred back to Fox Chase, where

she remained from January 24-29, 2013. Dr. Thorley testified that her

condition had greatly improved after returning from Jeanes Hospital. His team

placed an aortic balloon to help regulate her blood pressure and antifungal

treatment continued. However, Ms. Locke’s sacral decubitus ulcers (bedsores)

significantly worsened during her stay at Fox Chase, and on January 29, 2013,

she was discharged back to Willowcrest Rehab to continue antifungal and

sacral wound treatments.

E.

Willowcrest Rehab and Einstein Medical Center

January 29-February 11, 2013

Between January 29, 2013, until her death on February 11, 2013, Ms.

Locke was treated at Willowcrest Rehab and Einstein Medical Center. At

Willowcrest, Ms. Locke battled complications from the fungal infection, her

sacral wounds, new bacterial infections and cardiovascular issues. On

February 9, 2013, she was transferred to Einstein Medical Center, where she

was found to have contracted gas gangrene and necrotizing fasciitis in her left

leg, but she was a poor candidate for its amputation due to her fragile state.

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Ms. Locke continued to decline and her daughters elected hospice care. She

died at Einstein Medical Center on February 11, 2013.

On February 12, 2013, Vivian Arguello-Guerra, M.D., a pathologist

employed by Albert Einstein Medical Center, performed an autopsy on Ms.

Locke. In her report, she identified the provisional cause of death as “urinary

tract infection with septic shock.” The final anatomical diagnosis after

microscopic examination identified the number one cause of death as

“URINARY TRACT INFECTION WITH ASCENDING ACUTE PYELONEPHRITIS,

BILATERAL, SEVERE: POSITIVE CULTURES FOR YEAST AND NON-HEMOLYTIC

STREPTOCOCCUS.” (Fox Chase Defendants’ Motion in Limine, 8/09/18, at 4;

Expert Report of Mark C. Paznansky, M.D., Ph.D., 9/12/16, at 7).6 “According

to the autopsy report, the cause of death was ‘most likely multiorgan failure

due to sepsis arising from acute pyelonephritis[7] in a setting of high grade

urothelial carcinoma.’” (Expert Report of Philip M. Arlen, M.D., 9/16/16, at 2)

(quoting Paznansky Expert Report, at 7).

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6 Although the autopsy report is quoted in the Fox Chase Defendant’s Motion

in Limine to preclude its admission and was argued extensively by the parties,

the actual report is not part of the record. Locke agrees that the Fox Chase

motion correctly quotes the relevant portion of the report. (See Locke’s Brief,

at 18 n.4).

7 Kidney infection.

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II.

In December 2014, Locke initiated this medical negligence-wrongful

death and survival action. Trial commenced on August 24, 2018. On August

27, 2018, the trial court heard argument on, inter alia, the Fox Chase

Defendants’ Motion in Limine to preclude the admission and publication of the

autopsy report. (See N.T. Trial, 8/27/18, at 26-27). After argument, the trial

court found that the experts could testify that they relied on the autopsy report

in forming their opinions, but that the report itself could not be admitted or

published to the jury because it was hearsay, and Dr. Arguello-Guerra would

not be testifying and subject to cross-examination. (See id. at 69).

At trial, Locke’s theory was that over the course of Regina Locke’s

admissions, Fox Chase and its employees, Drs. Thorley and Kailasam,

“repeatedly failed to properly diagnose and timely treat [her] urosepsis, a

sepsis infection of the urinary tract.” (Locke’s Brief, at 19) (citing N.T. Trial,

8/28/18, at 62, 83). More specifically, she alleged that the Fox Chase

Defendants negligently caused Regina Locke’s death by their collective failure

to administer anti-fungal medication, which “allowed the urosepsis to fester,

worsen and eventually infect her kidneys, a condition known as acute bilateral

pyelonephritis.” (Locke’s Brief, at 20; see id. at 19) (citing N.T. 8/28/18, at

121). She argued that “[t]he sepsis spread throughout [Regina Locke’s] body,

causing her to experience cardiogenic and septic shock, i.e., sepsis-induced

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heart failure, and ultimately to die.” (Id. at 20) (citing N.T. Trial, 8/31/18, at

128).

Conversely, the Fox Chase Defendants denied that they were negligent

and maintained that because Regina Locke “had a highly complex medical

history, with cancer superimposed upon other chronic illnesses, the outcome

was ‘not unexpected.’” (Id.) (citing N.T. Trial, 8/31/18, at 108).

On September 4, 2018, the trial court held a charging conference with

the parties’ counsel at which it agreed that Standard Civil Jury Instruction

6.50, Vicarious Liability—Employer and Employee Sued—Relationship and

Authority Not in Dispute8 was appropriate because Fox Chase had stipulated

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8Pennsylvania Suggested Standard Jury Instruction 6.50 has undergone many

adaptations. (See Locke’s Brief, at 25 n.6). The version that the parties

submitted in their proposed points for charge and on which the trial court

relied in its jury instructions reads as follows:

In this case it is admitted that the defendant [name of employee]

was at the time of the occurrence acting as the [employee]

[servant] of the other defendant, known as the [employer]

[master], and was engaged in furthering the interests, activities,

affairs, or business of [his] [her] [employer] [master]. A[n]

[employer] [master] is liable for the negligence of his or her

[employee] [servant] occurring while the latter was acting in the

course and within the scope of his or her employment.

Therefore, if you find the defendant [name of employee] to be

liable, then you must find the defendant [name of employer] also

liable. If, however, you find the defendant [name of employee]

not liable, then you must find the other defendant not liable also.

Pa. SSJI (Civ.) 6.50 (Fourth Edition, 2017 Supplement).

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that Drs. Thorley and Kailasam were its agents or employees. (See N.T. Trial,

9/04/18, at 192). The trial court reserved its ruling as to whether to charge

the jury on the corporate liability of Fox Chase pursuant to Pennsylvania

Suggested Standard Civil Jury Instruction 14.70, Corporate Liability of a

Health Care Provider. (See id. at 208). The next day, the court announced

its ruling that it would charge the jury on corporate liability pursuant to

14.70(c).9

During the court’s charge to the jury, it instructed, in relevant part:

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9 Pennsylvania Suggested Standard Jury Instruction 14.70(c) provides:

A [health care institution] is directly liable to the patient if it

violates a duty that it owes to the patient to ensure the patient’s

safety and well-being while under the care of [the health care

institution]. The following are the duties that a [health care

institution] must fulfill and that it cannot pass on to anyone else.

* * *

c. a duty to oversee all persons who practice [nursing/other

relevant person’s health care] within its walls as to patient care[.]

If you decide that the defendant[s] violated any one of those

duties [specify which duty or duties are applicable], you must then

decide

a. Whether the [health-care institution] knew or should

have known of the breach of that duty, and

b. That the conduct was a factual cause in bringing about

the harm or injury.

Pa. SSJI (Civ.) 14.70(c).

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An employer is liable for the negligence of its employees

occurring while the latter were acting in the course and scope of

his or her employment. Therefore, if you find a defendant, Dr.

Thorley and/or Dr. Kailasam, to be liable, then you must find the

defendant, Fox Chase, also liable. If, however, you find the

defendant, Dr. Thorley and/or Dr. Kailasam, not liable, then you

must find the other defendant not liable also.

* * *

The Fox Chase Cancer Center is directly liable to the patient

if it violates a duty that it owes to the patient to ensure the

patient’s safety and well being while under the care of the Fox

Chase Cancer Center. This is one of the duties that the institution

must fulfill and that it cannot pass on to anyone else, the duty to

oversee all persons who practice within its walls as to patient care.

If you decide that this defendant violated any of that duty,

you must decide whether this institution knew or should have

known of the breach of that duty and that the conduct was a

factual cause in bringing about the harm or injury.

(N.T. Trial, 9/05/18, at 80-81, 85-86).

Thereafter, the following exchange occurred:

[Locke’s Counsel]: Okay, Your Honor, I only had one request for

clarification, and it was with regard to the jury instruction under

6.50, which was the . . . employer vicarious liability charge. . . .

[I]t’s inconsistent to say that . . . Fox Chase can only be found

liable if [Dr.] Thorley is found negligent or Dr. Kailasam, because

we also did have the corporate one in there. So, the way it reads

or the way it read, 6.50 says the following at the end, it says . . .

Therefore, if you find the Defendant Thorley to be liable then you

must find the Defendant Fox Chase also liable. If, however, you

find the Defendant Thorley not liable then must find the other

defendant not liable also.

So that’s inconsistent with the corporate one, that’s Fox Chase—

they could have like a verdict if Thorley is not liable, Kailasam is

not liable, but the breach—but independent breaches of Fox Chase

would also show—can be sufficient. . . .

THE COURT: [Defense counsel].

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[Defense Counsel]: I disagree. I think that the jury heard both

charges. . . . And I think it is clear, based on the corporate

negligence charge, that Fox Chase could be found negligent if they

find that they didn’t meet the standard of care on what was

charged to the jury.

THE COURT: I will not give them any more instruction on that.

I think Fox Chase can be found negligent even if they don’t find

them negligent under 6.50.

[Locke’s Counsel]: Right. But under the first charge, as you

read it, which would have been the first one they heard, look, if

Thorley and Kailasam are not negligent you cannot find Fox Chase

negligent. That’s directly contradictory, though, to the corporate

one which says that, yes, Fox Chase can be independently. So if

we can just have that clarified that, yes, that Fox Chase can alone

be held responsible, that would correct any of that.

THE COURT: Your exception is noted.

[Locke’s Counsel]: Thank you, Your Honor.

(Id. at 97-99).

In its verdict, the jury found that although Dr. Thorley and Fox Chase

were negligent, this negligence was not the factual cause of Regina Locke’s

harm and, therefore, they were not liable. The jury found that Dr. Kailasam

was not negligent.10

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10 Specifically, the verdict sheet read as follows:

VERDICT SHEET

Question 1: Do you find that any of the Defendants were

negligent?

Defendant Fox Chase Cancer Center Yes X No __

Defendant Jeffrey D. Thorley, M.D. Yes X No __

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Locke timely filed a motion for post-trial relief seeking a new trial,11

maintaining that the trial court improperly precluded the autopsy report and

that it erred by including the language, “If . . . you find the defendant [name

of employee] not liable, then you must find the other defendants not liable

also[,]” in its vicarious liability charge, because this precluded a finding of

liability against Fox Chase under the corporate liability theory. (See Post-Trial

Motion, 9/16/18, at 2-13, 24-27). The court denied the motion on January 2,

2019. Judgment was entered on March 8, 2019, and Locke timely appealed.12

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Defendant Mala T. Kailasam, M.D. Yes __ No X

(If you answer Question 1 “No” as to all Defendants, the

Plaintiff cannot recover and you should not answer any

further questions and should return to the Courtroom.)

Question 2: Was the negligence of those Defendants you have

found to be negligent a factual cause of any harm to the Plaintiff?

Defendant Fox Chase Cancer Center Yes __ No X

Defendant Jeffrey D. Thorley, M.D. Yes __ No X

Defendant Mala T. Kailasam, M.D. Yes __ No X

(If you answer Question 2 “No” as to all Defendants you

have found to be negligent, the Plaintiff cannot recover and

you should not answer any further questions and should

return to the Courtroom).

11Although not relevant to this appeal, the motion also sought a Judgment

Not Withstanding the Verdict (JNOV) on bases abandoned here.

12Locke improperly appealed from the denial of the post-trial motions. See

Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863

(Pa. Super. 2000) (appeal does not properly lie from order denying post-trial

motions, but rather upon judgment entered following disposition of post-trial

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Both she and the trial court have complied with Rule 1925. See Pa.R.A.P.

1925.

III.

Locke argues that the trial court erred in denying her motion for a new

trial13 because it improperly: (1) charged the jury by “incorrectly adapting

the second half of Pa.SSJI (Civ.) 6.50 to this case so as to instruct [them] that

if either Dr. Thorley or Dr. Kailasam were not liable, then Fox Chase would

also be not liable[;]” and (2) “preclude[ed] [her] from publishing to the jury,

in whole or in part, the autopsy report, which contained medical facts essential

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motions). On February 8, 2019, we directed her to file a praecipe to enter

judgment with the trial court prothonotary and provide this Court with proof

of same. Locke did so and we treat her appeal as timely filed. See Pa.R.A.P.

905(a)(5).

13 We review the trial court’s denial of a new trial for an abuse of discretion

because “absent a clear abuse of discretion by the trial court, appellate courts

must not interfere with the trial court’s authority to grant or deny a new trial.”

Czimmer v. Jansenn Pharm., Inc., 122 A.3d 1043, 1051 (Pa. Super. 2015)

(citation omitted). We undertake a two-part analysis.

We must review the court’s alleged mistake and determine

whether the court erred and, if so, whether the error resulted in

prejudice necessitating a new trial. If the alleged mistake

concerned an error of law, we will scrutinize for legal error. Once

we determine whether an error occurred, we must then determine

whether the trial court abused its discretion in ruling on the

request for a new trial.

Id. (citation omitted).

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to rebut the defense theory that the patient’s death was not unexpected[.]”

(Locke’s Brief, at 7).

A.

We first turn to Locke’s challenge to the trial court’s jury instruction as

misleading. “Error in a charge occurs when the charge as a whole is

inadequate or not clear or has a tendency to mislead or confuse rather than

clarify a material issue. James v. Albert Einstein Medical Center, 170 A.3d

1156, 1163-64 (Pa. Super. 2017) (citation omitted). Our Supreme Court has

held that a jury needs adequate instructions, not the best or clearest ones.

Indeed, it has stated

A jury charge will be deemed erroneous only if the charge as a

whole is inadequate, not clear or has a tendency to mislead or

confuse, rather than clarify, a material issue. A charge is

considered adequate unless the jury was palpably misled by what

the trial judge said or there is an omission which is tantamount to

fundamental error. Consequently, the trial court has wide

discretion in fashioning jury instructions.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2008) (citation

omitted).

Even though the trial court read the jury instructions requested, Locke

maintains that defense counsel believed that due to their inconsistency, the

trial court would omit the last sentence of the suggested vicarious liability

instruction (6.50) when it ruled that it would provide the corporate liability

charge (14.70(c)). (See Locke’s Brief, at 28). She notes that the second

sentence of 6.50, which provides that an employer cannot be vicariously liable

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if an employee is not liable, purportedly is in conflict with 14.70(c) that allows

a finding that an employer is directly liable for failing to oversee any staff

within its walls, even if a named employee is not liable.14, 15 (See id. at 29).

The Fox Chase Defendants reply that not only did the trial court

accurately state the law in the jury charge, it expressly instructed that the

jury could find Fox Chase vicariously liable for any negligent actions of Drs.

Thorley and/or Kailasam.

A review of the record confirms that the trial court accurately read the

Pennsylvania Suggested Standard Jury Instructions for vicarious liability and

corporate negligence. (See N.T. Trial, 9/05/18, at 80-81, 85-86).

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14 Locke also argues by instructing that, if either Dr. Thorley and/or Dr.

Kailasam is not liable, then Fox Chase cannot be liable, the trial court

improperly precluded a finding that Fox Chase was vicariously liable for the

negligence of its unnamed employees. (See Locke’s Brief, at 30). In support

of this argument, she relies on Estate of Denmark v. Williams, 117 A.3d

300, 306 (Pa. Super. 2015), for the proposition that an employer can be held

vicariously liable for employees who are unnamed in a complaint, but

identified as a unit, e.g., as “staff,” if they acted negligently during the course

and scope of their employment. (See id.). However, this argument is

irrelevant here where Locke did not include unnamed employees or staff in

the complaint, but only sought to hold Fox Chase vicariously liable for the

actions of named doctors, Drs. Thorley and/or Kailasam.

15As noted by the Fox Chase Defendants, Locke also argues for the first time

that the trial court compounded its error by using the phrase “and/or” in

charging the jury on vicarious liability (6.50). (See Fox Chase Defendants’

Brief, at 4 n.1; Locke’s Brief, at 33-34). They maintain that the argument is

waived for Locke’s failure to raise it in the trial court. However, our

substantive review confirms that it also lacks merit where she has failed to

prove that this language constituted fundamental error that palpably misled

the jury. See Stewart, supra at 540.

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In pertinent part, it charged the jury regarding vicarious liability as

follows:

Regarding agency, counsel for the plaintiff and counsel for the

defendant agree that Dr. Thorley and Dr. Kailasam were, during

the time in question, acting as agents for the Fox Chase Cancer

Center. In this case, it is admitted that the defendants, Dr.

Thorley and Dr. Kailasam, were at the time of the occurrence

acting as employees of the other defendant known as the

employer and were engaged in furthering the interests, activities,

affairs or business of their employer. An employer is liable for the

negligence of its employees occurring while the latter were acting

in the course and within the scope of his or her employment.

Therefore, if you find a defendant, Dr. Thorley and/or Dr.

Kailasam, to be liable, then you must find the defendant,

Fox Chase, also liable. If, however, you find the defendant,

Dr. Thorley and/or Dr. Kailasam, not liable, then you must

find the other defendant not liable also.

(Id. at 80-81) (emphasis added).

Regarding the corporate liability of Fox Chase, it instructed the jury that:

The Fox Chase Cancer Center is directly liable to a patient

if it violates a duty that it owes to the patient to ensure the

patient’s safety and well-being while under the care of the

Fox Chase Cancer Center. This is one of the duties that the

institution must fulfill and that it cannot pass on to anyone else,

the duty to oversee all persons who practice within its walls as to

patient care. If you decide that this defendant violated any of that

duty, you must decide whether this institution knew or should

have known of the breach of that duty and that the conduct was

a factual cause in bringing about harm or injury.

(Id. at 85-86) (emphasis added).

There is no evidence that the jury was palpably misled by the two

charges that resulted in prejudice to Locke. The charges clearly stated the

law and there was no prejudicial omission of something basic or fundamental.

In its vicarious liability instruction (6.50), the trial court accurately set forth

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the general principle that an employer is liable for the negligence of its

employees occurring while the latter were acting in the course and within the

scope of his or her employment. The last sentence of the charge applies that

general principle of agency law to the facts of this case in that Fox Chase

would only be liable under that theory if Dr. Thorley and/or Dr. Kailasam were

liable.

It then gave a separate corporate liability charge (14.70(c)) that Fox

Chase is directly liable if it violates a duty to the patient to ensure the patient’s

safety and well-being while under its care. The trial court then went on to

instruct that it is a duty that the institution must itself fulfill and that it cannot

pass on to anyone else, and if it found that Fox Chase violated that duty to

oversee all persons who practice within its walls as to patient care and it was

a factual cause of a plaintiff’s harm, it could find Fox Chase independently

negligent.

As can be seen, each instruction on vicarious liability and corporate

liability stated the law with respect to each and they were sufficiently clear as

to what was involved for the jury to find Fox Chase liable under either theory.16

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16 The record reflects that the jury submitted questions to the court about

other, unrelated issues and, therefore, if it was confused about any perceived

conflict, it was aware that it could seek clarification. (See N.T. 9/06/18, at 3-

5).

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In fact, the jury on the verdict sheet expressly found Fox Chase itself

negligent.

What the jury was also clear about is that even though Fox Chase and

Dr. Thorley were negligent, they accepted Fox Chase Defendant’s defense that

they were not the cause of Regina Locke’s death. Accordingly, we conclude

that the jury instructions, when read as a whole, sufficiently advised the jury

of the applicable law.

B.

Next, we review Locke’s argument that the trial court erred in denying

her motion for a new trial because it improperly granted the Fox Chase

Defendants’ Motion in Limine to preclude the admission and publication of the

autopsy report. Locke argues that she was “irreparably prejudiced” because

the report contained medical facts that were essential to rebut the defense

theory that Regina Locke’s death was not unexpected due to her bladder

cancer and history of chronic disease. (Locke’s Brief, at 40). She maintains

that the report was admissible under three different theories: (1) as an

exception to the hearsay rule17 because it is a statement authored by an agent

of opposing party Albert Einstein Medical Center, (2) the business records

____________________________________________

17 Hearsay, an out of court statement made by a declarant who is not

testifying, admitted for the truth of the matter asserted, is precluded unless

subject to an exception. See Pa.R.E. 801, 802. Here, it is uncontested that

the autopsy report is hearsay.

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exception to the hearsay rule, and (3) because autopsy reports are the type

of data reasonably relied on by experts in forming their opinions pursuant to

Pennsylvania Rule of Evidence 703.

The Fox Chase Defendants respond that Locke’s argument “is

substantively meritless” because the report’s findings constituted hearsay

statements and she has failed to establish an exception.18 (The Fox Chase

Defendants’ Brief, at 14). They maintain that: (2) the report was not an

admission by a party-opponent because neither the Fox Chase Defendants nor

their agents authored the report, (2) that it was a medical opinion and thus

not admissible under Rule 803(6) as a business record, and (3) Rule 703

explains the bases on which an expert can form an opinion, but does not

permit the admission of hearsay statements in evidence. (See id. at 19-24).

1.

Locke contends that the trial court erred in precluding the autopsy report

because the opposing party’s statement exception to the hearsay rule applies.

She maintains that because the author of the autopsy report, Dr. Arguello-

____________________________________________

18 The Fox Chase Defendants also maintain that this issue is waived because

Locke’s counsel expressly conceded that, although the experts would rely on

the autopsy report in forming their own opinions and testify to that fact, the

report itself could not be published to the jury. (See Fox Chase Defendants’

Brief, at 12-13) (citing N.T. Trial, 8/27/18, at 27-28). However, in reviewing

Locke’s response and after our independent review of the record, we conclude

that her counsel also later argued for the autopsy report’s publication because

“[i]t’s no different than when we put up a medical record.” (N.T. Trial,

8/27/18, at [6]8-[6]9); see also Locke’s Brief, at 44-45). Therefore, we

decline to find waiver.

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Guerra, is a pathologist employed by Albert Einstein Medical Center, the trial

court erred in precluding the report’s admission. (See Locke’s Brief, at 42).

Pennsylvania Rule of Evidence 803(25) provides an exception to the

hearsay rule where “[t]he statement is offered against an opposing party and

. . . was made by the party in an individual or representative capacity[.]”

Pa.R.E. 803(25). Here, while the statement was made by an agent of

opposing party Albert Einstein Medical Center, Locke intended to offer it as

substantive evidence to be used against the Fox Chase Defendants’ defense

that Ms. Locke’s death was not unexpected, not against Albert Einstein Medical

Center. Therefore, the autopsy report does not fall under the exception found

at Rule 803(25).

2.

Locke next argues that the autopsy report falls under the business

record exception to the hearsay rule because it was kept in the regular course

and scope of Albert Einstein Medical Center’s business. (See Locke’s Brief, at

42).

It is well-settled that the business record exception “applies to records

of an act, event or condition, but does not include opinions and diagnoses.”

Pa.R.E. 803(6), Comment. This clear language has been interpreted to mean

that records containing either opinion evidence or diagnoses are not

admissible under the business records exception. See In re A.J.R.-H., 188

A.3d 1157, 1169 (Pa. 2018). We have held that pursuant to the business

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records exception, hospital records are admissible to show facts, including

symptoms found, but that any medical opinions contained therein are not

admissible where the doctor who offered the opinion is not available for cross-

examination. See Walsh v. Kubiak, 661 A.2d 416, 421 (Pa. Super. 1995),

appeal denied, 672 A.2d 309 (Pa. 1996).

In this case, the autopsy report listed Dr. Arguello-Guerra’s diagnoses

of the provisional and final causes of death based on her examination and

opined about the “most likely” source of sepsis and “most likely” cause of

death. (Paznansky Expert Report, at 7). These are not facts, but diagnoses,

and, as such, were inadmissible where Dr. Arguello-Guerra was not available

to testify. See In re A.J.R.-H., supra at 1169; Kubiak, supra at 421.

Hence, the trial court properly precluded their admission and publication to

the jury.

Moreover, even if the report could have been severely redacted to allow

for the admission of facts such as that Regina Locke suffered urinary tract and

fungal infections and carcinoma of the bladder, any failure to preclude this

data was not reversible error where this was merely cumulative of what

experts already had testified. See Kubiak, supra at 422 (error in admitting

evidence does not constitute reversible error where it is merely cumulative

and buttresses properly admitted testimony). Accordingly, the admission of

this limited information would not have changed the outcome of the trial and

does not support the granting of a new trial.

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3.

Finally, Locke maintains that because the autopsy report is the type of

record on which an expert witness would reasonably rely, it was admissible

pursuant to Pennsylvania Rule of Evidence 703. (See Locke’s Brief, at 42-

43).

Rule 703, Bases of an Expert’s Opinion Testimony, provides:

An expert may base an opinion on facts or data in the case

that the expert has been made aware of or personally observed.

If experts in the particular field would reasonably rely on those

kinds of facts or data in forming an opinion on the subject, they

need not be admissible for the opinion to be admitted.

Pa.R.E. 703.

Based on this clear language, Rule 703 provides that an expert witness

can rely on a record if it is of the type on which experts in his or her field

reasonably rely, even if the record itself is not admissible. It does not provide

an exception that allows for the admission of the otherwise inadmissible

evidence. Here, it is undisputed that the autopsy report is hearsay.

At trial, the trial court expressly ruled that the experts could testify that

they relied on the autopsy report in forming their opinions, but that no portion

of the report could be published to the jurors. (See N.T. Trial, 8/27/18, at

69; see also id. at 28 (Locke’s counsel agreeing that the experts could rely

on the report but that it could not be published to the jury)). This ruling was

entirely consistent with Pennsylvania Rule of Evidence 703 where the report

is inadmissible hearsay.

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Accordingly, for all of the above reasons, we conclude that the trial court

properly denied Locke’s motion for a new trial.

Judgment affirmed.

Judges Bowes joins the memorandum.

Judge Shogan concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/2020

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