# Appendix — Thomas Jefferson University Hospital v. Bynum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1558%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 540 U.S. 814 ## Text la IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT DIANE BYNUM and FOUNTAIN : No. 418 EAL 2002 PARRISH, : : Application for Reconsideration : of denial of Petition for v. : Allowance of Appeal THOMAS JEFFERSON UNIVERSITY : HOSPITAL and DR. PHILIP HIRSHMAN $: AND HEE-OK PARK CHAI, M.D., : PETITION OF: THOMAS JEFFERSON UNIVERSITY HOSPITAL and DR. PHILIP HIRSHMAN, M.D. ORDER PER CURIAM AND NOW, this 6th day of February 2003, the Application for Reconsideration of the Denial of the Petition for Allowance of Appeal is DENIED. TRUE COPY FROM RECORD Attest: FEB 6 2003 /s/ Patricia Johnson Patricia Johnson, Chief Clerk Supreme Court of Pennsylvania, Eastern District 2a IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT DIANE BYNUM and FOUNTAIN : No. 418 EAL 2002 PARRISH, : Petition for Allowance of Respondents : Appeal from the Order of the : Superior Court THOMAS JEFFERSON UNIVERSITY : HOSPITAL and DR. PHILIP HIRSHMAN =: AND HEE-OK PARK CHAI, M.D. PETITION OF: THOMAS JEFFERSON UNIVERSITY HOSPITAL and DR. PHILIP HIRSHMAN, M_D., ORDER PER CURIAM AND NOW, this 10th day of December 2002, the Petition for Allowance of Appeal is DENIED. TRUE COPY FROM RECORD Attest: DEC 10 2002 /s/ Patricia Johnson Patricia Johnson, Chief Clerk Supreme Court of Pennsylvania, Eastern District 3a DIANE BYNUM AND FOUNTAIN: IN THE SUPERIOR COURT OF PARRISH, : PENNSYLVANIA Appellants : Vv. THOMAS JEFFERSON UNIVERSITY HOSPITAL AND DR. PHILIP HIRSCHMAN AND Hee-PK PARK CHAT. M_D., Appellees : No. 3485 EDA 2000 ORDER AND NOW, this 31st day of July, 2002, IT IS HEREBY ORDERED: THAT the application filed June 12, 2002, request- ing reargument/reconsideration of the decision dated May 29, 2002, is DENIED. PER CURIAM 4a DIANE BYNUM and FOUNTAIN : IN THE SUPERIOR COURT OF PARRISH, : PENNSYLVANIA Appellants : v. THOMAS JEFFERSON UNIVERSITY : HOSPITAL and DR. PHILIP HIRSCHMAN =: No. 3485 EDA 2000 and Hee-OK Park Chai, M.D. : Appeal from the Judgment entered February 12, 2001, Court of Common Pleas, Philadelphia County, Civil Division at Nos. 923 March Term, 1998 & 2294 December Term, 1998. BEFORE: McEWEN, JOHNSON, and JOYCE, Ju. MEMORANDUM: FILED MAY 29, 2002 Diane Bynum (Bynum) and Fountain Parrish (Parrish), husband and wife, appeal from the judgment entered in a medical malpractice case after the trial court denied their post-trial motions. Bynum and Parrish allege that, as a result of the negligence of Dr. Philip Hirshman, their fetus was stillborn. Bynum and Parrish sought damages for emotiona: distress. Bynum and Parrish contend that the trial court erred in permitting testimony that Bynum had aborted a prior pregnancy and had considered aborting the pregnancy at issue. Additionally, Bynum and Parrish assert that the trial court improperly removed Hospital’s name from the jury interrogatories, that the trial court’s conduct during trial hampered Bynum and Parrish’s counsel’s exercise of trial strategy, and that the court improperly imposed a deadline for the jury’s deliberations. We conclude that the testimony concerning the prior and contemplated abortions was unduly prejudicial, and therefore, we reverse the judgment and remand for a new trial. This case arises from the stillbirth of Bynum’s fetus in December 1996. Bynum’s expected due date was December 23, 1996. On December 20, 1996, Bynum saw Dr. Hirshman, a third year OB/GYN resident at Thomas Jefferson University Hospital (Hospital), for a prenatal visit. During 5a the visit, Dr. Hirshman indicated a positive fetal heartbeat and fetal movement on the prenatal flow record. He ‘instructed Bynum to return in one week to be induced if she had not gone into spontaneous labor. Bynum contends that during the visit she told Dr. Hirshman that she had experienced decreased fetal movement. Dr. Hirshman denies that Bynum told him and asserts that if Bynum had told him that she experienced decreased fetal movement then he would have performed more tests prior to sending her home. On December 23, 1996, Bynum went to Hospital complaining that she had not felt any fetal movement since that morning. An ultrasound ndicated that the fetus had died in utero. Bynum and Parrish sought damages for emotional distress. Bynum and Parrish admit that there is no evidence of Hospital’s independent liability and their only claim against Hospital is one of vicarious liability. Bynum and Parrish filed suit against-a number of defendants. In September 1999, the court consolidated the cases, and the parties stipulated to the dismissal of all defendants other than Hospital and Dr. Hirshman. Bynum claimed that she informed Dr. Hirshman that the fetus was moving less on the day of the prenatal visit and that Dr. Hirshman’s failure to take further action caused the stillbirth. The only claims against Hospital were those of vicarious liability for the actions of Dr. Hirshman who was a resident doctor and a Hospital employee. Bynum and Parrish sought damages for emotional distress resulting from how they learned that their baby was stillborn. In April 2000, the original trial of this case ended in a hung jury. During the jury trial in June 2000, the Honorable Mark I. Bernstein permitted testimony concerning Bynum’s prior abortion and her consideration of aborting the pregnancy in question. Additionally, the trial court instructed defense counsel regarding discourtesy and proper questioning. The trial court also refused to include jury interrogatories requested by the plaintiffs regarding Hospital’s liability. At the conclusion of the trial, the trial judge told the jury 6a that due to a personal commitment the judge would be leaving the courthouse at approximately 3:30 that day and therefore would only be able to receive the verdict either before he left that afternoon or the next morning. The judge made it clear to the jury that they could deliberate for as long as they needed. The jury returned their verdict at 3:50 finding Dr. Hirshman not negligent in his medical care. Bynum and Parrish filed this timely appeal after the trial court denied Bynum and Parrish’s motion for post-trial relief. Bynum and Parrish present the following issues for our review: 1. Whether trial court committed reversible error in permitting testimony concerning [Bynum’s] termi- nation of a previous pregnancy in 1992? 2. Whether the trial court committed reversible error in permitting testimony concerning [Bynum’s] consideration of the termination of this pregnancy by abortion? 3. Even if issues concerning the previous abortion and consideration of abortion are relevant, it was still excluded pursuant to Rule 403 of the Rules of Evidence and it was reversible error to permit cross-examination. 4. Whether trial court improperly removed [Hospi- tal’s] name from the jury interrogatories? 5. Whether trial court’s constant attack of counsel for | defendant improperly prevented plaintiffs’ counsel from determining in his discretion when to object to certain points or to exercise any trial strategy and improperly disrupted trial? Brief for Appellant at 4. We will not overturn a decision to grant or deny a motion for a new trial unless the trial court “grossly abused its discretion or committed an error of law that controlled 7a the outcome of the case.” Collins v. Cooper, 746 A.2d 615, 617 (Pa. Super. 2000). Bynum and Parrish’s first three questions concern the admissibility of evidence regarding Bynum’s prior abortion and her contemplated abortion of the pregnancy in question. As these questions are interrelated, we will address them together. We recently elaborated on the standard for reviewing the admissibility of evidence: In order to find that the trial court’s evidentiary rulings constituted reversible error, such rulings must not only have been erroneous but must also have been harmful to the complaining party. Appellant must therefore show error in the evidentiary ruling and resulting prejudice, thus constituting an abuse of discretion by the lower court. Based upon such showing, our only remedy is to grant a new trial. Collins v. Cooper, 746 A.2d 615, 619-620 (Pa. Super. 2000) (internal quotations and citations omitted). Bynum and Parrish first contend that the testimony concerning the prior abortion and the contemplated abortion was not relevant to the issues in the case, and therefore inadmissible. Brief for Appellants at 13. Bynum and Parrish contest the court’s conclusion that the evidence was relevant to damages. They further object to the implication that they suffered less from the loss of their child than would a plaintiff who had not previously had an abortion. Brief for Appellants at 13. Additionally, Bynum and Parrish contest the trial court’s second rationale for admitting the evidence. Brief for Appellants at 15. The trial court concluded that Bynum and Parrish had placed the records at issue through allegations of alteration or inaccuracy. Trial Court Opinion, 5/16/01, at 10-11. The court concluded accordingly that all 8a parts of the records were relevant including those that referenced prior pregnancies. Trial Court Opinion, 5/16/01, at 10-11. Bynum and Parrish contend that they did not allege that the records had been altered but rather that information, such as Bynum’s name and details of the December 20, 1996 prenatal visit had not been recorded accurately. Brief for Appellants at 15. Alternatively, Bynum and Parrish assert that, even if the testimony was relevant, the issue of abortion is inherently prejudicial and should only be allowed when it directly impacts the issues in the case. Brief for Appellants at 16. Plaintiffs claim that “[a]ny consideration of the issues surrounding abortions are tainted with unfair prejudice as it has nothing to do with liability [or] the emotional distress that [Bynum] suffered. It did have to do with how certain jurors would view [Bynum] and her value cf life.” Brief for Appellants at 20-21. Bynum and Parrish contend that the purpose of the testimony was to “inflame and prejudice and affect [Bynum’s] credibility and it should not have been allowed pursuant to rules 402 and 403 of the Pennsylvania Rules of Evidence.” Brief for Appellants at 13-14. Bynum and Parrish contend that the jurors’ decision on negligence rested on whether they believed Bynum or Dr. Hirshman’s testimony regarding whether Bynum mentioned decreased fetal movement at the prenatal visit. Therefore, if the abortion testimony prejudiced the jury’s opinion of Bynum and thus her credibility, the admission of the testimony is reversible error. Brief for Appellants at 17-18, 19-20. Bynum and Parrish assert that the abortion testimony should have been excluded under Rule 403 of the Pennsylvania Rules of Evidence because the probative value was outweighed by the danger of unfair prejudice. Our Rules of Evidence state that all relevant evidence is admissible, unless otherwise provided, and that evidence that is not relevant is inadmissible. See Pa.R.E. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the 9a determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401. A trial court may exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury.” Fisher v. N. Hills Passavant Hosp., 781 A.2d 1232, 1234 (Pa. Super. 2001). Evidence will be deemed unduly prejudicial “not where it merely hurts a party’s case, but where it tends to fix a decision which has an improper basis in the minds of the jury.” Id. at 1234 (quotations and citations omitted); see also Pa.R.E. 403. Hospital and Dr. Hirshman present us with cases in which courts admitted testimony relating to abortions. Brief for Appellees at 15-16. Upon review of the cases, however, we conclude that they are inapposite. A number of the cases involve medical malpractice claims against doctors who performed ineffective abortions or against doctors or individuals whose alleged negligence caused the plaintiffs to have an abortion. See e.g. Speck v. Finegold, 439 A.2d 110 (Pa. 1981) (involving claim against doctor who preformed ineffective vasectomy and abortion); Coveleski v. Bubnis, 634 A.2d 608 (Pa. 1993) (involving car accident where mother sought damages for wrongful death of eight week old fetus whom she aborted for fear of damage as a result of accident). In these cases, the testimony regarding the plaintiffs’ abortions was essential to the plaintiffs’ case due to the fact pattern of the cases and the basis of the claims. In the case at hand, the trial court determined that the abortion testimony was relevant to the jury’s determination of the amount of damages to award. We disagree. The trial court based its relevancy conclusion on mere speculation that a prior abortion would effect the suffering felt after the loss of an entirely separate pregnancy. We discern no correlation between an abortion four years prior and the degree of emotional distress parents would feel upon hearing that their full term baby had died in utero after a 10a subsequent pregnancy. The defendants did not present evidence that the prior abortion was a voluntary act by Bynum. Additionally, we see no relevance in Bynum’s contemplation of abortion in the early months of the pregnancy in question. Once the parents determined to carry the pregnancy to term, they negated by their conduct any prior intent to abort, as a consequence of which the prior contemplation is irrelevant. Additionally, we find no relevance in _ testimony regarding the prior abortion or the contemplation of the pregnancy to the issue of accuracy of fhe records, which the trial court asserts in its 1925(a) opinion. The fact that the medical history form correctly reflected the number “3” in the prior pregnancy box does not provide any relevant information to the issues in this case. The accuracy of the records could have easily been established without reference to the small section of the record concerning prior pregnancies. Therefore, we conclude that the testimony should have been excluded as not relevant pursuant to Pa.R.E. 401 and 402. Even if the testimony could be deemed relevant, the trial court nonetheless erred because the testimony was unduly prejudicial. The outcome of this case depended substantially on whether the jury believed Bynum, as opposed to Dr. Hirshman, when she said she told Dr. Hirshman that she had noticed decreased fetal movement during her last pre-natal visit. Currently this nation is polarized on the issue of abortion with some members of our community exhibiting extreme negative reactions to women who have abortions or to persons who advocate for a woman’s right to choose an abortion. We conclude in view of this circumstance that the references to abortions may likely have fixed a “decision which [had] an improper basis in the minds of the jury.” Fisher, 781 A.2d at 1234 (quotations and citations omitted). Although we recognize that the testimony was not lengthy, we conclude that its inclusion was demonstrably prejudicial. Considering the lla minor relevance, if any, of the abortion testimony to the facts of this case, we conclude that the probative value did not outweigh the prejudice of the testimony to Bynum and thus should have been excluded pursuant to Pa.R.E. 403. Pa.R.E. 403 (“Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice. .. .”). Therefore, we conclude that a new trial is necessary to correct the trial court’s abuse of discretion in allowing the testimony regarding the prior and contem- plated abortions. In their fourth issue, Bynum and Parrish contend that the trial court erred by removing Hospital’s name from the jury interrogatories. We have previously stated our standard of review of a trial court’s decision to grant or refuse a request for special interrogatories: Generally, a trial judge in Pennsylvania may grant or refuse a request for special findings on the basis of whether such would add to the logical and © reasonable understanding of the issue. We will not disturb a trial judge’s decision to grant or refuse the request absent an abuse of discretion. Century 21 Heritage Realty, Inc. v. Bair, 563 A.2d 114, 116 (Pa. Super. 1989). Bynum and Parrish contend that the trial court erred in omitting Hospital’s name from the jury interrogatories. Brief for Appellants at 23. Bynum and Parrish argue that Hospital should have been included on the interrogatories because under the doctrine of vicarious liability the master may be primarily liable. Brief for Appellants at 23. Bynum and Parrish further contend that the trial court incorrectly concluded that Bynum and Parrish needed to present evidence of direct liability in order to keep Hospital on the interrogatory. Brief for Appellants at 24. “[Hospital] was not a guarantor for defendant Hirshman but a co-defendant liable in its own right.” Brief for Appellants at 24. Additionally, the plaintiffs note that the jury did question 12a the interrogatories: “Are we to view [Hospital] and Dr. - Hirshman as one entity to decide our verdict?” Brief for Appellant at 25 quoting N.T., 6/8/00, at 699-700. Bynum and Parrish contend that the interrogatories confused the jurors when Hospital was included in the case caption but not the interrogatories. The trial court refused to include Hospital’s name on the jury interrogatories because Bynum and Parrish had not presented any evidence concerning any direct liability by Hospital but only claimed that Hospital was liable through its agent, Dr. Hirshman. Trial Court Opinion at 3-4. The court concluded that to allow the jury “to determine whether [Hospital] was independently liable, when there was no evidence of independent liability, would only invite a finding of direct liability where even plaintiffs concede there was no evidence to support such a verdict.” Trial Court Opinion, 5/16/01, at 5. Therefore, any interrogatory regarding direct liability “would invite confusion or worse, an inconsistent verdict unsupported by any evidence.” Trial Court Opinion, 5/16/01, at 6. The trial court in this case clearly instructed the jury that any verdict against Dr. Hirshman would be molded to include Hospital as the doctor’s employer. N.T. 6/8/00, at 694. The trial court answered in the affirmative the jury’s question as to whether they should treat Dr. Hirshman and Hospital as one entity. N.T. 6/8/00, at 698. Hospital in no way contested the relationship with Dr. Hirshman. Trial Court Opinion at 5. Additionally, Bynum and Parrish do not cite any authority for the argument that they had a legal right to have Hospital on the interrogatories. Therefore, we conclude that the triai court did not abuse its discretion when it granted Hospital’s request to remove its name from the jury interrogatories. Bynum and Parrish additionally allege that the conduct of the trial court during trial was prejudicial to their case. Bynum and Parrish contend that the repeated interruptions and sidebars called by the court to instruct defense counsel 13a disrupted the trial and prevented plaintiffs’ counsel from exercising his trial strategy. Bynum and Parrish contend that their trial counsel’s opportunity to object was taken away and that the court’s actions “’made plaintiffs’ trial counsel appear incompetent and as if the trial court was protecting [plaintiffs] counsel.” Brief for Appellant at 28. Bynum and Parrish claim that this conduct denied them their state and federal rights to counsel. Brief for Appellant at 29. Bynum and Parrish however failed to raise the issue of trial court’s prejudice prior to the verdict. Therefore, pursuant to Rule of Civil Procedure 227.1(b), plaintiffs have waived this issue. See Ware v. U.S. Fidelity and Guaranty Co., 577 A.2d 902, 904-905 (Pa. Super. 1990) (concluding that prejudice of judge is waived unless raised prior to verdict). Although the plaintiffs do not include the issue in their statement of questions presented, plaintiffs contend that the trial court committed reversible error regarding the “3:30 - deadline”. Brief for Appellant at 30-31. Plaintiffs contend that the imposition of the deadline and the requirement that if the jury did not decide before 3:30 p.m. they would have to return the next day was improper and caused the jury to rush to judgment. Brief for Appellant at 30-31. Plaintiffs contend this amounted to judicial coercion. Brief for Appellant at 30-31. We first note that an appellant waives any question not contained in the statement of questions. See Pa.R.A.P. 2116(a). Additionally, even if the plaintiffs had included the deliberation deadline question in their statement of questions, we would waive the question because plaintiffs failed to make an objection to the jury instructions or raise the issue prior to the conclusion of the trial in violation of the Rules of Civil Procedure 226 and 227.1(b) respectively. Additionally, even if we were to address the merits of the issue, the record belies Bynum and Parrish’s assertion of coercion. The trial court made it clear to the jurors that they l4a should not feel a need to conclude their deliberation by 3:30 and could feel free to return the next day to continue to deliberate. N.T. 6/8/00, at 695. For all the foregoing reasons, we conclude that the question regarding the “deadline” is meritless. Because we have concluded that the admission of the testimony regarding the prior and contemplated abortions was error mandating a new trial, we reverse the judgment and remand for a new trial. Judgment REVERSED. Case REMANDED for further proceedings consistent with this Memorandum. Jurisdiction RELINQUISHED. Judge McEwen concurs in the result. Judge Joyce files a Concurring and Dissenting Memor- andum. Judgement Entered. /s/ Prothonotary Date: MAY 29 2002 52.3 15a DIANE BYNUM AND FOUNTAIN : IN THE SUPERIOR COURT OF PARRISH, : PENNSYLVANIA Appellants : v. THOMAS JEFFERSON UNIVERSITY HOSPITAL AND DR. PHILIP HIRSCHMAN AND HEE-OK PARK CHAI, M.D., : Appellees : No. 3485 EDA 2000 Appeal from the Judgment entered February 12, 2001, In the Court of Common Pleas, Philadelphia County, Civil Division at Nos. 923 March Term, 1998 & 2294, December Term 1998. BEFORE: MCEWEN, JOHNSON and JOYCE, Ju. FILED MAY 29, 2002 CONCURRING AND DISSENTING MEMORANDUM BY JOYCE, J. | While I am in agreement with the resolution of Appellants’ first, fourth and fifth issues, I write separately to express my disagreement with the resolution of the second and third issues. These issues are as follows: Ii. Whether the trial court committed reversible error in permitting testimony concerning [Ms. Diane Bynum’s] consideration of the termination of this pregnancy by abortion? III. Even If issues concerning . . . consideration of abortion are relevant, it was [sic] still excluded pursuant to Rule 403 of the [Pennsylvania] Rules of evidence and it was reversible error to permit cross examination. Brief for Appellants, at 4. 16a At trial, the critical question was whether or not Appellant,’ Ms. Diane Bynum informed Dr. Phillip Hirsh- man, during the December 20, 1996 prenatal visit, that she was experiencing decreased fetal movement. During the prenatal visit, Dr. Hirshman indicated in the prenatal flow record that the fetus had a positive heartbeat. The flow record also indicated fetal movement. After making these observations, Dr. Hirshman instructed Ms. Bynum to return in one week to be induced if she had not gone into spontaneous labor. Ms. Bynum contends that during the prenatal visit she told Dr. Hirshman that she was experiencing decreased fetal movement. Dr. Hirshman denies that Ms. Bynum told him of the decreased movement. He claims that had Ms. Bynum informed him of the decreased movement, he would have performed more tests prior to sending her home. Thus, on the issue of liability, the jury was required to determine whether or not Ms. Bynum informed Dr. Hirshman that she was experiencing decreased fetal move- ment. If Dr. Hirshman was so informed but he failed to take proper action and sent Ms. Bynum home instead, the jury could reasonably find him negligent. If on the other hand, Dr. Hirshman was not informed of the decreased fetal movement, the jury could conclude that his failure to perform more tests or take other action did not fall below the applicable standard of care. Thus on the issue of liability, i.e., failure to adhere to the proper standard of care, the fact that Ms. Bynum has had a previous abortion or the fact that she contemplated abortion in the early stages of the pregnancy at issue here, is clearly irrelevant. 1 The other Appellant is Mr. Fountain Parrish. Appellants are the “parents” of the stillborn fetus. See Plaintiffs’ Complaint, filed 3/12/1998, at 7 10. 17a With respect to damages” however, I think that Ms. Bynum’s contemplation of abortion in the early stages of the pregnancy is very relevant. Ms. Bynum’s testimony established that she considered terminating the pregnancy at issue in this case, voluntarily and for reasons unrelated to her health or physical well-being or those of the fetus. The pertinent testimony elicited on cross-examination concern- ing the contemplation of abortion is as follows: Q: And then ma’am [your medical record] indicates, “Would pregnancy be a problem at this time?” And, again, this is the pregnancy that we’re talking about in this case. And you indicated, “Yes.” Do you recall that ma’am? Mr. ‘