Defense Digest

Raise It Or Loose It

Submission of a request for a jury charge without an affirmative ruling by the court on the record is not enough to preserve an issue for appeal. If the trial judge simply fails to give the requested charge, the party must bring the matter to the judge's attention and object, or the issue is waived according to the Pennsylvania Superior Court in Faherty v. Gracias, 2005 Pa. Super. 174 (Pa. Super. 2005).

On April 7, 1999, Michael Faherty was involved in a car accident in which he suffered massive injuries for which he was rushed to Brandywine Hospital. While at Brandywine Hospital, the trauma team did what they could for Mr. Faherty with their resources and then transferred him to a Level l trauma center at the Hospital of the University of Pennsylvania (HUP).

When Mr. Faherty arrived at HUP, he was taken to the operating room where the medical staff removed some or all of the lap pads placed at Brandywine and placed additional pads to control the bleeding. According to a nurses' report, 14 lap sponges were packed into Mr. Faherty's abdomen during this procedure, but an operative note written by a medical student and cosigned by a surgical fellow stated that 15 lap pads were left in Mr. Faherty's abdomen.

On April 10, 1999, Dr. Gracias performed another surgery during which he believed that he removed all the sponges. Dr. Gracias removed 14 sponges from Mr. Faherty, and Dr. Gracias stated that the nurses assured him that 14 sponges were placed during the first surgery. A few days later, Mr. Faherty began to run a fever, and a CAT scan was performed which showed a retained sponge in the abdomen, with an associated air fluid collection behind it, most likely representing an infected collection. Several days later Mr. Faherty developed pancreatitis and sepsis. He subsequently died on May 7, 1999, from multiple organ failure and sepsis.

Susan M. Faherty instituted a law suit for wrongful death against all of the doctors and nurses who cared for her husband. Dr. Gracias and the nurses at HUP were the only defendants remaining at the time of trial. A jury found the defendants not negligent in the care and treatment of Michael Faherty. Ms. Faherty appealed, arguing that the trial court erred in several areas, one being a failure to instruct the jury on res ipsa loquitur.

The plaintiff contended that during a charging conference, a request was made for a jury instruction on the doctrine of res ipsa loquitur. The trial judge responded, "I have to look at this one. I have to just re-read it, so I'll let you know Monday morning." However, on the following Monday morning, the trial judge did not revisit the issue. The plaintiff also did not remind the trial judge either before, during, or after the charge that the requested jury instruction on res ipsa loquitur was not given. The trial judge, therefore, did not make a ruling on the plaintiff's res ipsa instruction, and the plaintiff failed to bring the instruction to the court's attention and failed to object during the jury charge. The Superior Court stated that under these circumstances, the plaintiff's claim was waived.

The Superior Court relied on the Supreme Court decision in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114, 116-17 (Pa. 1974). In the Dilliplaine case, the appellant and the decedent were involved in an automobile accident. The decedent died of causes unrelated to the accident. The appellant brought a trespass action against the executor of the decedent's estate for injuries suffered in the accident. The jury found for the decedent, and the appellant brought a motion for new trial that was denied. The appellant argued that the trial court had erred by instructing the jury that the decedent was presumed to have exercised due care at the time the accident occurred. The appellant did not offer or take specific exception to the due care instruction but, on appeal argued that, when the trial court gave the presumption of due care instruction, the trial judge committed basic and fundamental error. The appellate court affirmed the order. The court held that the basic and fundamental error doctrine would no longer be recognized as a ground for consideration on appeal of allegedly erroneous jury instructions and that a specific exception needed to be taken.

In the present case, the trial judge never ruled on the plaintiff's proposed res ipsa instruction, nor did the plaintiff object to the judge's apparent denial of the proposed instruction. Therefore, the trial court never had the chance to correct its supposed error. The Superior Court held that a party's submission of a point for charge is not enough, in and of itself, to preserve the issue of the trial judge's failure to give that charge for appeal. The Superior Court stated that if a party submits a point for charge and the trial judge does not rule on the charge but simply fails to give the charge, the party must bring the matter to the judge's attention and object. If the trial judge is not allowed to rule on the appellant's proposed charge, the issue is waived.

*Deborah, who is an associate in our Bethlehem, PA office, can be reached at (484) 895-2304 or dcooper@mdwcg.com.