HARRISBURG – A panel trio from the Superior Court of Pennsylvania has removed a prior finding of nonsuit and ordered a new trial, in a case brought by the parents of a four year-old child who died after being treated for pneumonia at Einstein Hospital in 2015.
Superior Court judges Mary Jane Bowes, Victor P. Stabile and John L. Musmanno issued the ruling on Oct. 27, in an action brought by Freddy and Beatriz Munoz (as co-administrators of the estate of S.M., deceased) against Children's Hospital of Philadelphia and several co-defendants.
Stabile authored the Superior Court’s ruling.
“Our review of the record reveals that Freddy Munoz took his four-year-old son, S.M., to the Einstein Hospital Emergency Department on June 7, 2015, for treatment of a fever. S.M. had been treated at the same facility for pneumonia in January of 2015. At the conclusion of the June 7 visit, S.M. was discharged with a diagnosis of a herpes lesion on his lip, was given Ibuprofen, and was directed to follow up with his pediatrician in two days,” Stabile said.
“S.M. returned to the ED the following day because he had developed congestion and was having difficulty breathing. At 4:33 p.m., S.M. was seen by Dr. Stephen J. Parrillo. Lab tests revealed that S.M.’s oxygen levels and white blood count were extremely low and his heart rate was very high. Dr. Parrillo first diagnosed S.M. with asthma, then with cancer. An x-ray revealed pneumonia.”
Dr. Parrillo called CHOP’s emergency services department and informed the hospital of S.M.’s condition, which Dr. Parrillo described as an emergency. Dr. Parrillo was connected with CHOP’s pediatric intensive care unit, which agreed to admit S.M.
“The CHOP team arrived at Einstein at approximately 6:35 p.m. Nurse Galvin received a report from the Einstein nursing staff while Nurse Maerten went to the area in the ED where she located S.M. and his father and observed that S.M. was ‘blue.’ Nurse Galvin called CHOP, reported that S.M. was blue, that his oxygen saturation was very low at 80%, and that she was going to ‘get this kid intubated,” Stabile said.
“At approximately 6:45 p.m., Dr. Parrillo administered a pre-intubation sedative and paralytic and, approximately seven minutes later, attempted – unsuccessfully – to intubate S.M. The CHOP nurses were nearby, but neither participated in the intubation attempts. Testimony at trial revealed that Nurse Galvin had intubated many more pediatric patients than Dr. Parrillo, perhaps 30 or so to his five.”
Stabile added Dr. Parrillo attempted to increase S.M.’s oxygen levels with an Ambu bag and mask and by 6:56 p.m., S.M. had no detectable pulse and Einstein providers began CPR. Dr. Parrillo accepted a King’s Airway device (an alternative to intubation) from the CHOP team and inserted it at 6:59 p.m. as CPR continued.
“Subsequently, S.M. lost his pulse again and CPR was resumed, this time with Nurse Maerten taking turns with Einstein providers. At approximately 7:16 pm., after receiving Nurse Galvin’s update call, Dr. Taylor engaged in a number of conversations with CHOP’s transport service and arranged to send a second team to Einstein by ambulance, this time with an intensivist physician. (Sending a team by helicopter was not an option due to weather conditions.),” Stabile said.
“The transport team would arrive in an hour. It was ultimately determined that the team would not arrive in time to assist in S.M.’s care. Therefore, a second team was not dispatched. In the meantime, at 7:12 p.m., the first of two Einstein anesthesiologists arrived in the ED. Each unsuccessfully attempted to intubate S.M., who was pronounced dead at 7:36 p.m.”
At trial, the plaintiffs presented expert testimony addressing the treatment provided to S.M. by Einstein personnel, as well as CHOP’s involvement in S.M.’s care. At the conclusion of the plaintiffs presenting their case, CHOP moved for a nonsuit.
CHOP argued there was no evidence it “undertook to render a service to S.M.” After taking the matter under advisement, the trial court granted CHOP’s motion on Feb. 18, 2020.
The plaintiffs then settled their claims against the remaining defendants.
On Sept. 8, 2020, following argument, the trial court denied the plaintiffs’ post-trial motion seeking to remove the nonsuit, leading them to appeal to the Superior Court.
Stabile said the trial court seemed to contradict its own conclusion that CHOP didn’t endeavor to render a service to S.M., when it put forward that CHOP sent a transport team to Einstein Hospital to receive S.M. for admittance and had its doctors recommend and later provide treatments to S.M.
“More importantly, plaintiffs offered expert testimony to support their assertion that CHOP, through the actions of Dr. Taylor, Nurse Galvin, and Nurse Maerten, did in fact undertake to provide medical care to S.M. For instance, plaintiffs’ expert, Dr. Paynter, testified that Nurse Galvin was ‘calling the shots’ and ‘taking the responsibility’ when she called out orders to the Einstein staff,” Stabile said.
“Dr. Paynter stated that Dr. Parrillo ‘may have been in charge, but the decision-making, which is critical in a code, when to give a drug, when to take an action, was being called by Matt Taylor over the phone to Donna Galvin. Further, when Dr. Parrillo twice unsuccessfully attempted to intubate S.M., Nurse Galvin ‘could have taken command and intubated the patient. That did not happen and instead a less qualified person who had only done five pediatric intubations attempted it. It did not work out. The subsequent attempts by two different Einstein anesthesiologists ‘apparently did not work out either.’ Moreover, Nurse Maerten was unquestionably participating in S.M.’s care when she engaged in CPR along with Einstein personnel. Dr. Paynter also was critical of CHOP’s failure to include a pediatric care intensivist fellow as part of the transport team.”
The Superior Court found that, at the very least, the plaintiffs “presented expert testimony that suggested CHOP’s actions, or lack thereof, increased the risk of harm to S.M.”
“Giving appellants the benefit of every reasonable inference, and resolving all evidentiary conflicts in their favor, we cannot say ‘that the fact finder could not reasonably conclude that the essential elements of the cause of action were established’ or that ‘the lack of evidence to sustain the action is so clear that it admits no room for fair and reasonable disagreement.’ Accordingly, we find the trial court erred in granting the nonsuit in favor of CHOP. Therefore, we remand the case with direction that the nonsuit be removed, and a new trial be granted,” Stabile concluded.
Superior Court of Pennsylvania case 1798 EDA 2020
Philadelphia County Court of Common Pleas case 170403453
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com