The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) held in its opinion filed on October 27, 2021: “entry of a compulsory nonsuit is affirmed only if no liability exists based on the relevant facts and circumstances, with appellant receiving the benefit of every reasonable inference and resolving all evidentiary conflicts in appellant’s favor … Otherwise, the compulsory nonsuit is properly removed and the matter remanded for a new trial. Id. Giving Appellants the benefit of every reasonable inference, and resolving all evidentiary conflicts in their favor, we cannot say “that the factfinder 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.”

The issue arose in the context of a Pennsylvania medical malpractice case involving the care provided to a four-year-old child who was critically ill in the emergency department of a local hospital at which time the local hospital contacted Children’s Hospital of Philadelphia (“CHOP”) for transfer of the child to CHOP for a higher level of care. CHOP sent a transport team that included two pre-hospital nurses who had specialized training in intubating children and running codes. The local hospital stayed in continuing contact with a pediatric intensive care fellow in CHOP’s PICU, who provided treatment advice.

At the conclusion of the plaintiffs’ case-in-chief, CHOP moved for a nonsuit, which was subsequently granted. The plaintiffs appealed.

The Pennsylvania Appellate Court stated that the appellants offered expert testimony to support their assertion that CHOP, through the actions of Dr. Taylor [the pediatric intensive care fellow in CHOP’s PICU], Nurse Galvin, and Nurse Maerten, did in fact undertake to provide medical care to the child. The appellants’ expert also was critical of CHOP’s failure to include a pediatric care intensivist fellow as part of the transport team. “Further evidence of CHOP’s participation in S.M.’s care stems from Dr. Taylor’s recognition that S.M. was septic, a diagnosis Dr. Parrillo seemingly missed, even when the x-ray he ordered revealed pneumonia, after he initially diagnosed S.M. with asthma (and ordered Albuterol) and then cancer … It was Dr. Taylor’s recommendation to administer antibiotics and a saline bolus, reflecting his diagnosis of sepsis and his involvement in S.M.’s care.”

The Pennsylvania Appellate Court stated, “At the least, Appellants presented expert testimony that suggested CHOP’s actions, or lack thereof, increased the risk of harm to S.M.”

Therefore, the Pennsylvania Appellate Court held: “Order reversed. Case remanded for removal of nonsuit and a new trial.”

Source Munoz v. The Children’s Hospital of Philadelphia, 2021 PA Super 217.

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