In July 2019, Steven Delavern, then 31-years-old, went to Health Services, a family practice, with complaints of rectal
pain and bleeding along with other bowel issues. He was seen by PA Karla Lynn Wilson, a physicians’ assistant who was supervised by Dr. Nicole Carroll. PA Wilson diagnosed Mr. Delavern with internal hemorrhoids and prescribed
suppositories. Mr. Delavern returned to the practice in February 2020, at which time PA Wilson provided him with more steroids and additional recommendations for treating his then-worsened symptoms. Mr. Delavern saw PA Wilson a third time in July 2020, reporting increased pain, and was referred to general surgery for evaluation and possible hemorrhoidectomy. A colonoscopy procedure the following month revealed that Mr. Delavern had stage four rectal cancer that had metastasized to his lungs.
The Delaverns filed their Pennsylvania medical malpractice complaint in which they alleged that the failure of Dr. Carroll or PA Wilson to diagnose Mr. Delavern’s rectal cancer, and the resultant thirteen-month delay in treatment, caused him to suffer life-threatening injuries that could have been avoided.
During closing arguments, the Delaverns’ counsel on several occasions suggested that this case was an example of a system failure that was unacceptable in Clarion County. When the defendants finally objected, contending that the argument violated the court’s pretrial order granting their “golden rule” motion in limine, the court sustained the objection. The defendants did not request a curative instruction, and none was given, and the defendants did not move for a mistrial.
The Pennsylvania medical malpractice jury found Dr. Carroll, PA Wilson, and Health Services all negligent, that their negligence harmed the Delaverns, and that their respective percentages of causal negligence were thirty, twenty, and fifty percent. The jury awarded a total of $6,970,783 in economic and noneconomic damages, including $2,000,000 to Ms. Delavern for loss of consortium. The trial court granted the Delaverns’ request for delay damages. The Delaverns filed a praecipe to enter judgment in the amount of $7,291,398.51, resulting in the entry of judgment in that amount
on June 27, 2024. The defendants appealed.
The Superior Court of Pennsylvania stated in its non-precedential decision (Memorandum) dated January 6, 2025: “As cancer is a disease that does not jump from stage to stage but progresses over time, some cancers more rapidly than others, the exact stage in July was not the issue. Rather, the question here is whether Appellants’ professional negligence increased the risk of harm, in light of their omissions making it impossible to establish causation with certainty. In this vein, Dr. Cartwright testified that, to a reasonable degree of medical certainty, the thirteen-month delay reduced Mr. Delavern’s life expectancy and necessitated procedures that negatively impacted his quality of life … “[w]here the plaintiff is unable to show to a reasonable degree of medical certainty that the physician’s actions/omissions caused the resulting harm, but is able to show to a reasonable degree of medical certainty that the physician’s actions/omissions increased the risk of harm, the question of whether the conduct caused the ultimate injury should be submitted to the jury.”
The Pennsylvania appellate court further held with regard to the Appellants’ violation of the Golden Rule argument: “Appellants waived their right to request a new trial by failing to move for a mistrial after the court sustained their objection. Appellants opted to sit back and allow counsel to move on with his argument, the court to instruct the jury, and the jury to return its verdict, without suggesting to the court that a curative instruction was necessary or that the remarks caused such prejudice that the trial could not continue. To conduct review of their belated request for a new trial “would substantially eviscerate the waiver principle and, taken to its logical conclusion, would result in endless retrials and endless appeals.””
The Pennsylvania appellate court explained in a footnote: “The remarks highlighted by Appellants did not squarely constitute “golden rule” arguments. The Delaverns’ counsel argued that PA Wilson’s negligence, the failure of Dr. Carroll to catch PA Wilson’s negligence, and the failure of Health Services to enforce policies that would have caught those failures, indicated that Appellants’ system of providing health care failed Mr. Delavern. Counsel then asked the jury to decide whether that defective system was acceptable in Clarion County, or whether it would encourage its continuation by failing to find for the Delaverns. While the court was within its discretion to rule in favor of Appellants when they finally objected, we cannot conclude that the statements plainly, let alone defiantly, violated the court’s order by asking the jury to do unto the Delaverns what they would wish to have done unto themselves if they were in their shoes.”
Source Delavern v. Health Services of Clarion, Inc., No. 858 WDA 2024.
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