Transcript MEDICAL MALPRACTICE - Williamsport Personal Injury

MEDICAL MALPRACTICE
Pennsylvania Association for Justice
Medical Malpractice Seminar
Philadelphia, April 9, 2012
Presented by: Clifford A. Rieders, Esq.
Rieders, Travis, Humphrey, Harris, Waters &
Waffenschmidt
161 West Third Street
Williamsport, PA 17701
Phone: 570-323-8711
Fax: 570-567-1025
Email: [email protected]
www.riederstravis.com
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M-CARE ACT & ATTORNEY FEES
By: Clifford A. Rieders, Esq.
2
§ 509 M-CARE ACT
40 P.S. § 1303.509. PAYMENT OF DAMAGES
• (a) General rule.-- In a medical professional liability action, the
trier of fact shall make a determination with separate findings
for each claimant specifying the amount of all of the
following:
• (1) Except as provided for under section 508, past damages
for:
• (i) medical and other related expenses in a lump sum;
• (ii) loss of earnings in a lump sum; and
• (iii) noneconomic loss in a lump sum.
• (2) Future damages for:
• (i) medical and other related expenses by year;
• (ii) loss of earnings or earning capacity in a lump sum; and
• (iii) noneconomic loss in a lump sum.
By: Clifford A. Rieders, Esq.
3
§ 509 M-CARE ACT
40 P.S. § 1303.509. PAYMENT OF DAMAGES
CONTINUED
• (b) Future damages.—
• (1) Except as set forth in paragraph (8), future damages for medical and
other related expenses shall be paid as periodic payments after payment
of the proportionate share of counsel fees and costs based upon the
present value of the future damages awarded pursuant to this subsection.
The trier of fact may vary the amount of periodic payments for future
damages as set forth in subsection (a)(2)(i) from year to year for the
expected life of the claimant to account for different annual expenditure
requirements, including the immediate needs of the claimant. The trier of
fact shall also provide for purchase and replacement of medically
necessary equipment in the years that expenditures will be required as
may be necessary.
****
• (5) Liability to a claimant for periodic payments not yet due for medical
expenses terminates upon the claimant's death.
By: Clifford A. Rieders, Esq.
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§ 509 M-CARE ACT
40 P.S. § 1303.509. PAYMENT OF DAMAGES
CONTINUED
• 2002 MCARE ACT
• Payment of damages governed by Section 509.
• Damages paid a lump sum, except for future
medical expenses.
• Provides mandatory periodic payment system for
future medical expenses.
By: Clifford A. Rieders, Esq.
5
FOUR PROBLEMATIC ISSUES RAISED BY THE
AMBIGUOUS LANGUAGE IN SECTION 509(B)(1)
• When should attorney’s fees be paid?
• Who pays the attorney’s fees?
• How should attorney’s fees be paid?
• Should future medical expenses be reduced to
present value for purposes of calculating delay
damages?
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• Medical Malpractice claim brought against gynecologist for allegedly
failing to diagnose breast cancer.
• Jury awarded a verdict for plaintiff in the gross amount of $3,973,000 on
January 18, 2008. The molded verdict was for $2,582,450, reduced by
plaintiff’s 35% contributory negligence.
• The potential award for future damages was $521,235 but since the
plaintiff died, the actual award accrued at the time of death was
$165,750.
• The jury awarded $170,000 per year in future medical expenses payable
over five years, for a total of $850,000; after reduction the 35%
comparative negligence the award for future medical expenses over the
five year period is $110,500 yearly, or $27,625 quarterly.
• Plaintiff accrued medical expenses, totaling $165,750, when Plaintiff died
prior to the expiration of the five-year period.
By: Clifford A. Rieders, Esq.
7
SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• Defendants appealed all the way to the U.S.
Supreme Court.
• During appeal process, the plaintiff died on May 23,
2009.
• After a denial of writ for certiorari by U.S. Supreme
Court, plaintiff (executrix of estate) filed an
amended petition for entry of judgment on
November 23, 2010.
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• Issue: whether the MCARE Act provision stating that
future damages are paid as periodic payment after
the proportionate share of counsel fees and costs
based upon the present value of the future medical
damages requires that attorney fees be calculated
based upon the five year award when the plaintiff
died prior to that, terminating the award
prematurely?
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• held that § 509 of M-Care Act that required that future
damages for medical and other related expenses be
paid as periodic payments after payment of
proportionate share of counsel fees and costs did not
authorize additional attorney fees and
• attorney was required to calculate his 40% contingency
fee based on the present value of the patient’s future
damages at the time of death ($165,750) rather than on
the potential award ($521,235) – had plaintiff lived the
full five years.
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• The court heavily relied on analysis that § 509 does
not authorize additional attorney fees to support its
conclusion that the attorney fees must diminish the
award rather than add to the award under the
“American Rule” precluding recovery of attorney
fees from the adverse party “unless there is express
statutory authorization, a clear agreement of the
parties, or some other established exception.”
(citation omitted)
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• § 509 is not an express authorization requiring the
adverse party to pay the prevailing party’s attorney
fees because it refers to attorney fees by stating
that “future damages for medical or other related
expenses shall be paid as periodic payments after
payment of the proportionate share of counsel fees
and costs based upon the present value of the
future damages awarded pursuant to this
subsection.” (emphasis by the court) 40 P.S.
1303.509(b)(1).
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• A significant fact in Sayler is that the plaintiff died
prior to the calculation of attorney fees.
• As a result, liability for future damages already
terminated pursuant to 40 P.S. 1303.509(b)(3).
• Under these circumstances the court viewed
attorney fees based on future damages as an
addition to the jury award, requiring express
statutory authorization.
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• In many cases, however, unlike Sayler, the question
of when the future damages will terminate remains
unknown at the time of the attorney fee calculation
because the plaintiff has not yet died.
• Question: when a jury award is reduced to
judgment prior to the death of the plaintiff, will
courts be more receptive to the view that the
attorney fees should be a percentage of the jury
award reduced to present value rather than as the
Sayler court did, as an additional cost imposed
upon an adverse party.
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• Perhaps underlying the Sayler decision was a
perceived unjust “windfall” in attorney fees when it
is known at the time of judgment that the jury
award for future medical benefits has already
terminated at a value far less than what the jury
awarded.
• It is harder to view attorney fees that are based
upon a jury award for future medical benefits that
are expected to be paid in full at the time of
judgment as an “additional award” requiring
statutory authorization.
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES
--- A.3D ----, 2012 WL 361700 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• The court did not discuss the potential for conflict of
interest between attorneys and plaintiffs or authority
from other jurisdictions which analyze similar
medical malpractice statutes.
• The court notes that its conclusion is consistent with
the declaration of policy accompanying the
MCARE Act “to limit jury awards in medical
malpractice suits in order to ensure affordable
health care premiums.”
By: Clifford A. Rieders, Esq.
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PA-JICIV 14.150
COMMENTARY AND ANALYSIS
• Attorneys' fees are not to be paid periodically because
§509(b)(1) requires that the future medical and related
expenses be paid as periodic payments after payment
of the proportionate share of counsel fees and costs
based on the present value of the future damages
awarded pursuant to this subsection (emphasis added).
• The question arises as to whether the future damages for
medical and other related expenses should be reduced
to present value. Section 509(a)(2) requires a separate
finding for, among other things, “Future damages for: (i)
medical and other related expenses by year.”
By: Clifford A. Rieders, Esq.
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PA-JICIV 14.150
COMMENTARY AND ANALYSIS
• The reference to attorney fees in §509 addresses actual
payment to the claimant rather than any determination
by the fact finder. This is demonstrated by the remainder
of the subsections under 509(b); §509(b)(3), (4), (5), (6),
and (7) do not relate to the function of the finder of fact.
• For example, (b)(3) explains the schedule of payments
of future damages, (b)(6) sets forth the mechanism in
connection with the funding for the “portion of the
judgment” where periodic payments have been
awarded. The funding is provided by an annuity
contract, trust, or other qualified funding plan approved
by the court.
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES, M.D.
NO. 2006-C-2210V., 2011 WL 7110402 (LEHIGH CO. MARCH 4, 2011) TRIAL COURT
OPINION
• The trial court agreed with defendants’
interpretation of 40 P.S. § 1303.509(b)(1) to mean
that counsel fees are based only on the accrued
future medical damages at the time of Plaintiffs
death, and not on damages Plaintiff has not lived
to collect.
• The trial court discussed the Statutory Construction
Act (Act), 1 Pa.C.S. § 1901 et seq. in concluding
that the statute did not create an explicit
authorization for attorney fees which it concluded
was required to “add” the fees to the judgment.
By: Clifford A. Rieders, Esq.
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SAYLER V. SKUTCHES, M.D.
NO. 2006-C-2210V., 2011 WL 7110402 (LEHIGH CO. MARCH 4, 2011) TRIAL COURT
OPINION
• Trial court considered whether MCARE Act, requires
the payment of counsel fees on the entire award of
future medical damages, reduced to present
value, regardless of whether those future medical
damages come to fruition under 40 P.S. §
1303.509(b)(1).
• Jury awarded 5 years of future medical damages
but the plaintiff only lived long enough for six
quarterly payments of future medical expenses,
totaling $165,750, plus interest.
By: Clifford A. Rieders, Esq.
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THE CALIFORNIA EXPERIENCE, AS NOTED IN THE COMMENTARY,
ADDRESSES ISSUES THAT WERE NOT FULLY CONSIDERED
IN SAYLER V. SKUTCHES.
• Conflict of Interest - In Sayler the court failed to consider
the policy need to avoid the potential for a conflict of
interest or continuing legal entanglement evidenced by
the California experience, which may have informed the
drafters in creating section 509 of the MCARE Act.
• Invites Battle of Experts
• Appropriate rate of discount
• a standard or substandard mortality table
• Beef up periodic payments such as saved taxes or lump sum &
management costs
• the pitfalls of the “value approach” or the “cost” approach
By: Clifford A. Rieders, Esq.
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CALIFORNIA EXPERIENCE, AS NOTED IN THE COMMENTARY,
ADDRESSES ISSUES THAT WERE NOT FULLY CONSIDERED
IN SAYLER V. SKUTCHES.
• The Sayler court did exactly what the California
court cautioned against in Deocampo v. Ahn, 125
Cal.Rptr.2d 79 (Cal. Ct. App. 2002). Plaintiff’s
premature death left the full award not fully funded.
• Even though Pennsylvania went a step further to
assure that the annuity company will pay the
attorneys' fees in a lump sum as is customarily the
case in the community where annuity settlements
are made, the result in Sayler did not consider those
steps in determining the attorney fees.
By: Clifford A. Rieders, Esq.
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OTHER M-CARE ISSUES
COLLATERAL SOURCES
By: Clifford A. Rieders, Esq.
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§ 508 COLLATERAL SOURCES
40 P.S. § 1303.508
• (a) General rule.--Except as set forth in subsection (d), a claimant
in a medical professional liability action is precluded from
recovering damages for past medical expenses or past lost
earnings incurred to the time of trial to the extent that the loss is
covered by a private or public benefit or gratuity that the
claimant has received prior to trial.
• (b) Option.--The claimant has the option to introduce into
evidence at trial the amount of medical expenses actually
incurred, but the claimant shall not be permitted to recover for
such expenses as part of any verdict except to the extent that
the claimant remains legally responsible for such payment.
• (c) No subrogation.--Except as set forth in subsection (d), there
shall be no right of subrogation or reimbursement from a
claimant's tort recovery with respect to a public or private benefit
covered in subsection (a).
By: Clifford A. Rieders, Esq.
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§ 508 COLLATERAL SOURCES
40 P.S. § 1303.508
• (d) Exceptions.--The collateral source provisions set forth
in subsection (a) shall not apply to the following:
• (1) Life insurance, pension or profit-sharing plans or other
deferred compensation plans, including agreements
pertaining to the purchase or sale of a business.
(2) Social Security benefits.
• (3) Cash or medical assistance benefits which are subject to
repayment to the Department of Public Welfare.
• (4) Public benefits paid or payable under a program which
under Federal statute provides for right of reimbursement
which supersedes State law for the amount of benefits paid
from a verdict or settlement.
By: Clifford A. Rieders, Esq.
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§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• (b) Option.--The claimant has the option to
introduce into evidence at trial the amount of
medical expenses actually incurred, but the
claimant shall not be permitted to recover for such
expenses as part of any verdict except to the
extent that the claimant remains legally responsible
for such payment.
By: Clifford A. Rieders, Esq.
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§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• Argument that expense of medical treatment “bears no
logical correlation to the degree of pain and suffering
which accompanied the injury to the plaintiff” under
Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022, 1025
(1983); see also Carlson v. Bubash, 432 Pa. Super. 514,
639 A.2d 458 (1994) is inapposite.
• The language of these motor vehicle statutes,
Pennsylvania’s Motor Vehicle Financial Responsibility Law
and the No-Fault Act, was interpreted as precluding the
introduction of medical bills for which there was no
recovery, whereas the MCARE Act expressly allows for
the introduction of medical expenses despite their nonrecovery.
By: Clifford A. Rieders, Esq.
27
§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• Carlson v. Bubash, 432 Pa. Super. 514, 639 A.2d 458
(1994) and
• Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022
(1983).
• are inapposite because they were decided under
provisions of Pennsylvania’s Motor Vehicle Financial
Responsibility Law and the No-Fault Act,
respectively, which precluded recovery from the
tortfeasor for medical expenses arising out of a
motor vehicle accident that were covered by first
party insurance benefits.
By: Clifford A. Rieders, Esq.
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§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• It can be inferred from the fact that the legislature
chose to include express language in the MCARE
Act Section 508 (b) permitting the introduction of
medical expenses that the intent was to reverse the
effect of Carlson, in which the statutory silence of
the MVFRL was interpreted as a preclusion of such
evidence.
• Statutory Construction: presumption aware of
case-law and do not intend an absurd result.
By: Clifford A. Rieders, Esq.
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§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• Relevance of introducing medical bills is to consider
medical expenses as a factor in exercising their common
sense regarding pain and suffering.
• Superior court in Martin noted that attorneys, insurance
adjustors and judges routinely take the amount of
medical expenses into account in valuing a case for
settlement or in determining the adequacy or
excessiveness of a verdict. Martin v. Soblotney, 296 Pa.
Super. 145, 160-61, 442 A.2d 700, 707-08 (1982) rev’d in
part, 502 Pa. 418, 466 A.2d 1022 (1983).
By: Clifford A. Rieders, Esq.
30
§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• Other jurisdictions have also allowed the introduction of such
evidence for the jury’s consideration in evaluating the amount
appropriate for pain and suffering damages.
• Virginia - Barkley v. Wallace, 267 Va. 369, 595 S.E. 2d 271 (2004)
“the medical bills … were relevant because they tended to
establish the probability of …[she] experienced pain and
suffering …”
• New York - N.Y. Ins. Law § 5104(c) (McKinney)(“Where there is
no right of recovery for basic economic loss, such loss may
nevertheless be pleaded and proved to the extent that it is
relevant to the proof of non-economic loss.”)
By: Clifford A. Rieders, Esq.
31
§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• A secondary questions is what amount should the
jury be permitted to consider, that which was
charged or that which was paid by the insurance
company?
• By its own terms, Section 508 makes a distinction
between that which was incurred, or charged and
that which was paid and provides that “the amount
of the medical expenses actually incurred …” is
allowed to be introduced. It could have used the
word paid, but it did not.
By: Clifford A. Rieders, Esq.
32
§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• Point of Charge regarding medical bills given by Judge Gray
in Dieffenbach v. Trevouledes, Lycoming County Case No. 10100016.
Plaintiffs are not seeking recovery of [Plaintiff’s] medical
expenses as a part of this case. However, if you determine that
[Plaintiff] was injured as a result of [the Defendant’s] negligence,
the law permits Plaintiffs to present evidence of [Plaintiff’s]
medical bills to evaluate the appropriate compensation for her
pain and suffering. You may only consider these medical
expenses for the purpose of evaluating [Plaintiff’s] pain and
suffering. You are not to consider them for any other purpose.
I instruct you that Plaintiffs do not remain legally responsible for
the payment of these medical expenses. I further instruct you
that Plaintiffs are not permitted to recover for such expenses as a
part of any verdict which you may render in this matter
By: Clifford A. Rieders, Esq.
33
§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• § 508 (d) provides exceptions to its abrogation of the
traditional collateral source rule as set forth in subsection (a)
for the following four categories.
• (1) Life insurance, pension or profit-sharing plans or other
deferred compensation plans, including agreements
pertaining to the purchase or sale of a business.
• (2) Social Security benefits.
• (3) Cash or medical assistance benefits which are subject to
repayment to the Department of Public Welfare.
• (4) Public benefits paid or payable under a program which
under Federal statute provides for right of reimbursement
which supersedes State law for the amount of benefits paid
from a verdict or settlement. 40 P.S. § 1303.508
By: Clifford A. Rieders, Esq.
34
§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• Examples of § 508 (d) exceptions
• Medical benefits provided in retirement arguably
deferred compensation plans and exempt under (1).
• Qualifying Self-Funded ERISA Plans exempt under (4).
• It can also be argued that § 508 does not apply to HMOs
because the MCARE Act does not specifically mention
HMOs as would be required under Wirth v. Aetna U.S.
Healthcare, 469 F.3d 305 (3d Cir. 2006).
By: Clifford A. Rieders, Esq.
35
§ 508(B) INTRODUCTION OF MEDICAL BILLS
40 P.S. § 1303.508
• Medical benefits provided in retirement are arguably deferred
compensation plans and exempt under § 508 (d)(1).
• Post-retirement medical benefits have been found to be “deferred
compensation,” for services rendered in past. Fairview township v.
Fairview Township Police Association, 795 A.2d 463, 470-471 (Pa.
Cmwlth. 2002) see also Township of Tinicum v. Fife, 505 A.2d 1116
(1986), appeal denied, 544 A.2d 1343, 1344 (1988).
• An HMO plan from prior private employment should not be a gratuity
as used in §508 because they have been long recognized as deferred
compensation. See Lowe v. Jones, 200 A.2d 880 (1964).
If accept that they are deferred compensation, then the payments
made under the plan fall within the exception set forth in Section
508(d)(1) allowing recovery for those medical expenses paid
By: Clifford A. Rieders, Esq.
36
OTHER M-CARE ISSUES
MOOREHEAD ARGUMENT
By: Clifford A. Rieders, Esq.
37
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• It is well-settled Pennsylvania law that a plaintiff is
entitled to recover the reasonable value of medical
services provided to him from tortfeasor.
• In Moorhead, however, the plaintiff’s recovery was
limited to the amount paid by Medicare and her
supplemental insurance, even though it was
stipulated that the reasonable value of the medical
services was higher.
By: Clifford A. Rieders, Esq.
38
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• As a result, the issue arises:
• How far will Moorhead extend if defendants seek to
similarly limit the recovery of medical costs to the
amount paid rather than the reasonable value of
the medical services provided.
By: Clifford A. Rieders, Esq.
39
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• It is arguable that the reasoning of Moorhead turns
significantly on the fact that the tortfeasor was also
the medical provider which itself provided the
medical services in greater amount to the plaintiff
than the amount paid for those services.
• An application of the collateral source rule would
have required, in effect double payment where
tortfeasor provided medical services itself. See
Moorhead, supra, 765 A.2d at 788
By: Clifford A. Rieders, Esq.
40
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• Plaintiff’s damages were the amount actually paid
to the medical facility, and
• the facility itself provided services in greater
amount.
• Thus, the medical facility, in effect, actually made
plaintiff whole for the full amount of the claimed
medical expenses. Hardi v. Mezzanotte, 818 A.2d
974, 985 (D.C. App. 2003).
By: Clifford A. Rieders, Esq.
41
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• The arguments in favor of limiting recovery, as in
Moorhead, do not apply to non-party medical providers.
• in effect double payment; See Moorhead, supra, 765 A.2d at
788.
• made plaintiff whole for the full amount of the claimed
medical expenses; Hardi v. Mezzanotte, 818 A.2d 974, 985
(D.C. App. 2003)
• consistent with the collateral source rule policy that it is better
for the wronged plaintiff to receive a potential windfall than for
a tortfeasor to be relieved of responsibility for the wrong;
Johnson v. Beane, 542 Pa. 449, 456, 664 A.2d 96, 100 (1995)
• tortfeasor arguably incurred a portion of the responsibility of
the wrong when it provides medical services in excess of that
billed to plaintiff.
By: Clifford A. Rieders, Esq.
42
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• The majority in Moorhead insisted that the collateral source
rule was not implicated by their ruling. Id. 765 A.2d 790-791.
Given that expressed view, the holding of Moorhead should
be limited to its facts and not broadly applied to other
situations.
• Evidently the legislature also viewed the Moorhead decision
as limited in application because they felt it necessary
when writing the MCARE Act provisions to explicitly modify
the collateral source rule, see 40 P.S. Section 1303.508
(applicable to actions which arise on or after March 20,
2002).
By: Clifford A. Rieders, Esq.
43
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• Robinson v. Bates, 160 Ohio App. 3d 668, 828 N.E. 2d 657 (2005)(An extremely
thorough review of various jurisdictions throughout the country)
• the Ohio Appellate court noted Pennsylvania was in the distinct minority and
observed that “the Moorhead court’s position undermines the purpose of the
collateral source rule.” Id., 160 Ohio app. 3d at 687, 828 N.E. 2d at 672.
• Under the public-policy purposes of the collateral-source rule, defendants should
be liable for the full amount of damages caused by their wrongdoing,
independent of the financial situation of their victims. Id., 160 Ohio App. 3d at 689,
828 N.E. 2d at 673.
• Large ‘consumers’ of healthcare such as insurance companies can negotiate
favorable rates; those who are uninsured are often charged the full, undiscounted
price. “In other words, simply because medical bills are often discounted does not
mean that the plaintiff is not obligated to pay the billed amount. Defendants may,
if they choose, dispute the amount billed as unreasonable, but it does not become
so merely because plaintiff’s insurance company was able to negotiate a lesser
charge.” Id., 160 Ohio App. 3d at 680, 828 N.E. 2d at 666, quoting Arthur v. Catour,
345 Ill. App. 2d 804, 281 Ill. Dec. 243, 803 N.E. 2d 647 (2004).
By: Clifford A. Rieders, Esq.
44
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• Arguably Moorehead should not apply when
insurers pay the medical expenses and negotiate
the fee or any write-offs because:
• Private health insurers pay the medical expenses;
• any write-offs occur as the by-product of the insurance
carrier’s negotiations with the medical providers.
• Therefore, plaintiff – not the defendants- should receive the
benefits of their insurance contract. Hardi, supra, 818 A.2d
948-985.
By: Clifford A. Rieders, Esq.
45
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• Arguably Moorehead should only apply to party
medical providers when the MCARE Act’s collateral
source rule applies because otherwise, the
traditional rule should be applied.
• Under those traditional principals, the policy is that it
is better for the wronged plaintiff to receive a
potential windfall than for a tortfeasor to be
relieved of responsibility for the wrong. Johnson,
supra, and Compare, Moorhead, supra.
By: Clifford A. Rieders, Esq.
46
MOORHEAD V. CROZER CHESTER MEDICAL CENTER
765 A.2D 786, 789 (2001)
• In sum, the Moorehead limitations on recovery of
medical expenses to amount paid should be limited
to:
• when the medical bills cover medical services that were
provided by the tortfeasor itself and
• when the amount paid was not reduced as a byproduct of
an insurance negotiation or any write-offs; and
• when the MCARE Act’s collateral source rule applies
By: Clifford A. Rieders, Esq.
47
OTHER M-CARE ISSUES
EXPERT OVERLAP - § 512
By: Clifford A. Rieders, Esq.
48
40 P.S. § 1303.512.
EXPERT QUALIFICATIONS
• (a) General rule.--No person shall be competent to offer an expert medical opinion
in a medical professional liability action against a physician unless that person
possesses sufficient education, training, knowledge and experience to provide
credible, competent testimony and fulfills the additional qualifications set forth in
this section as applicable.
• (b) Medical testimony.--An expert testifying on a medical matter, including the
standard of care, risks and alternatives, causation and the nature and extent of the
injury, must meet the following qualifications:
•
(1) Possess an unrestricted physician's license to practice medicine in any state or the District
of Columbia.
•
(2) Be engaged in or retired within the previous five years from active clinical practice or
teaching.
•
Provided, however, the court may waive the requirements of this subsection for an expert on
a matter other than the standard of care if the court determines that the expert is otherwise
competent to testify about medical or scientific issues by virtue of education, training or
experience.
By: Clifford A. Rieders, Esq.
49
40 P.S. § 1303.512.
EXPERT QUALIFICATIONS
CONTINUED
• (c) Standard of care.--In addition to the requirements set forth in
subsections (a) and (b), an expert testifying as to a physician's standard
of care also must meet the following qualifications:
• (1) Be substantially familiar with the applicable standard of care for the
specific care at issue as of the time of the alleged breach of the
standard of care.
• (2) Practice in the same subspecialty as the defendant physician or in a
subspecialty which has a substantially similar standard of care for the
specific care at issue, except as provided in subsection (d) or (e).
• (3) In the event the defendant physician is certified by an approved
board, be board certified by the same or a similar approved board,
except as provided in subsection (e).
• (d) Care outside specialty.--A court may waive the same subspecialty
requirement for an expert testifying on the standard of care for the
diagnosis or treatment of a condition if the court determines that:
• (1) the expert is trained in the diagnosis or treatment of the condition, as
applicable; and
• (2) the defendant physician provided care for that condition and such
care was not within the physician's specialty or competence.
By: Clifford A. Rieders, Esq.
50
40 P.S. § 1303.512.
EXPERT QUALIFICATIONS
CONTINUED
• (e) Otherwise adequate training, experience and
knowledge.--A court may waive the same specialty
and board certification requirements for an expert
testifying as to a standard of care if the court
determines that the expert possesses sufficient
training, experience and knowledge to provide the
testimony as a result of active involvement in or fulltime teaching of medicine in the applicable
subspecialty or a related field of medicine within
the previous five-year time period.
By: Clifford A. Rieders, Esq.
51
40 P.S. § 1303.512.
EXPERT QUALIFICATIONS
PA SUPREME COURT
• In January 2011, the Pennsylvania Supreme Court
granted the application for appeal in two cases
involving the overlap of expert qualifications under
40 P.S. § 1303.512 and consolidated the cases for
oral argument.
1. Anderson v. McAfoos , No. 9 WAP 2011 )(Pa.
Supreme Court) – PAJ filed Amicus Brief –
(Argument held November 30, 2011)
2. Cottle v. Tenet Health Graduate, LLC, No. 1, EAP
2011 (Pa. Supreme Court) (Argument Pending).
By: Clifford A. Rieders, Esq.
52
40 P.S. § 1303.512.
EXPERT QUALIFICATIONS
PA SUPREME COURT
• Anderson v. McAfoos – PAJ filed Amicus Brief
Whether a board certified pathologist may, under Section
512 of the MCARE Act, testify regarding a general
surgeon/treating physician's standard of care in deciding
to discharge a patient without reading the patient's blood
work results?
• Cottle v. Tenet Health Graduate, LLC,
Whether a board certified obstetrician/gynecologist may,
under Section 512 of the MCARE Act, testify regarding an
emergency room physician's standard of care concerning
an alleged misdiagnosis of a patient with an ectopic
pregnancy?
By: Clifford A. Rieders, Esq.
53
40 P.S. § 1303.512.
EXPERT QUALIFICATIONS
PA SUPREME COURT
• In both cases now before the Pennsylvania Supreme
Court, the standard of care crosses disciplines.
• The plaintiff in Anderson argues the standard of care
applies to all doctors discharging a patient: that it was
negligent to discharge patient without reading her
blood results and determining the cause of the elevated
bandemmia and other symptoms.
• The plaintiff in Cottler argued that there was no variation
among specialties regarding the applicable standard of
care, that is, the proper procedure required ruling out
ectopic pregnancy.
By: Clifford A. Rieders, Esq.
54
40 P.S. § 1303.512.
EXPERT QUALIFICATIONS
PA SUPREME COURT
• When the standard of care crosses disciplines, the
board certification requirement of section 512(c)(3)
should be irrelevant.
• To insist upon the board certification prerequisite is
to elevate form over substance.
• § 512(e) provides a specific exception to same
specialty and same board certification.
By: Clifford A. Rieders, Esq.
55
VICARI V. SPIEGEL
989 A.2D 1277 (PA. 2010)
CASTILLE, SAYLOR, EAKIN, BAER, TODD, MCCAFFERY AND GREENSPAN
• A husband brought medical malpractice claim
against an otolaryngologist and radiation oncologist.
• Wife died at age 39 from metastic tongue cancer.
• Despite a high risk of recurrence and metastasis:
1.
2.
None of her doctors discussed the option of using
chemotherapy as an additional means of preventing a
recurrence after the surgical removal of her tumor
Neither referred her to a medical oncologist to discuss this
option
105
VICARI V. SPIEGEL
989 A.2D 1277 (PA. 2010)
CASTILLE, SAYLOR, EAKIN, BAER, TODD, MCCAFFERY AND GREENSPAN
• The issue is whether an oncologist is qualified to testify on
the standard of care against an otolaryngologist and
radiation oncologist under the MCARE Act.
• held that an oncologist is qualified to testify as an expert
against an otolaryngologist and radiation oncologist
under the MCARE Act about the standard of care for
recommending and referring a patient for follow-up
chemotherapy.
• Adopts the opinion in Gbur v. Golio, 963 A.2d 443 (Pa. 2009)
• MCARE Act requires same board certification for experts
• § 512(e) exception to the same board certification
requirement
• For sufficient expertise in a “closely relate field of medicine.”
By: Clifford A. Rieders, Esq.
57
VICARI V. SPIEGEL
989 A.2D 1277 (PA. 2010)
CASTILLE, SAYLOR, EAKIN, BAER, TODD, MCCAFFERY AND GREENSPAN
• In Vicari, the court emphasized the importance of
the relatedness of the specific care at issue. Justice
Saylor’s concurring opinion notes that the
subsection also requires that the expert’s field be
closely related to that of the defendant physician.
• A proposed physician expert who is certified in a
different board than the board certifying the
defendant physician does not automatically render
the expert incompetent under the MCARE Act to
testify against that physician.
• The Court must look at the specific care at issue.
By: Clifford A. Rieders, Esq.
58
VICARI V. SPIEGEL
989 A.2D 1277 (PA. 2010)
CASTILLE, SAYLOR, EAKIN, BAER, TODD, MCCAFFERY AND GREENSPAN
• In Vicari, the oncologist’s testimony that defendant
physicians breached the standard of care was
based upon the failure of those doctors to offer
follow-up chemotherapy and refer the patient to a
medical oncologist. The testimony did not relate to
the performance of surgery or administration of
radiation. This Court explicitly held that the
““relatedness” of one field of medicine to another,
under subsection 512(e), can only be assessed with
regard to the specific care at issue.” Vicari v.
Spiegel, 989 A.2d at 1294. (emphasis in the original)
The majority states that it adopts the opinion in Gbur
v. Golio, 600 Pa. 52, 963 A.2d 443 (2009).
By: Clifford A. Rieders, Esq.
59
WE WILL EXPLORE THE FOLLOWING:
1.
•
•
•
2.
3.
4.
Examination of the Bill/Statute 42 Pa. C.S.A. § 7102
Multiple defendant physician
Physicians employed by hospitals
Physician and hospital defendants
Settlement
Releases
Medical Malpractice and Non-Medical
Malpractice Cases
By: Clifford A. Rieders, Esq.
60
INTENTIONAL MISREPRESENTATION EXCEPTION
Does this ever occur in a
medical liability case?
May occur with respect to
misrepresentations
concerning treatment.
But see 40 P.S. 1303.105,
provider not a warrantor or
guarantor. Must be a
contract in writing.
By: Clifford A. Rieders, Esq.
61
MCARE ACT 40 P.S. § 1303.501, ET SEQ.
A physician may be held liable for failure to
seek a patient’s informed consent if the physician
knowingly misrepresents to the patient his or her
professional credentials, training or experience.
§ 504(d)(2)
Was a reversal of Duttry v. Patterson, 771 A.2d
1255 (Pa 2001).
By: Clifford A. Rieders, Esq.
62
505 OF THE MCARE ACT
Punitive damages may be awarded for
conduct based upon willful or wanton conduct or
reckless indifference to the rights of others. Punitive
damages may be permitted in vicarious liability
claims where it can be shown by a preponderance
of the evidence that the party knew of and allowed
the conduct by its agent that resulted in the award
of punitive damages. § 505(c)
By: Clifford A. Rieders, Esq.
63
ARE SEXUAL ABUSE CASES INTENTIONAL TORTS?
Scenario #1 – Real case; where doctor treated his nurse
as a patient and said she required sexual intercourse to
relax her and ultimately he forced himself on the patient.
Scenario #2 – Himalayan Institute case. Tried in Scranton
with a punitive damage result. Patient goes to
Himalayan Institute to see Swami. Himalayan Institute
offers medical care and doctors. Patient treated for
knee problems and Swami has inappropriate sexual
contact with patient. Sued were the Himalayan Institute,
the Swami, and the physicians.
By: Clifford A. Rieders, Esq.
64
MCARE ACT, § 511(C) – ALTERATION OF
RECORDS
In any medical professional liability action in
which the claimant proves by a preponderance of
the evidence that there has been an intentional
alteration or destruction of medical records, the
court in its discretion may instruct the jury to
consider whether such intentional alteration or
destruction constitutes an adverse inference.
By: Clifford A. Rieders, Esq.
65
MULTIPLE DEFENDANT PHYSICIANS
Should be no change since with primary coverage
Mcare coverage each physician is going to be insured for $1
million.
Query: $2 million verdict against doctors D1 and D2. Jury
apportions 59% against D1, which is $1,180,000. You will collect
$1 million. You will not collect $180,000 against D2 that was
apportioned against D1. The amount you collect against D2 will
be $820.000. Plaintiff therefore will be left holding the bag for
$180,000. D1 benefitted by only being 59% responsible instead of
60%.
You can work the numbers other ways to see how, as in
any other joint and several situation, plaintiff is affected.
By: Clifford A. Rieders, Esq.
66
PHYSICIAN EMPLOYED BY HOSPITAL
Vicarious liability, and that
should not be affected.
By: Clifford A. Rieders, Esq.
67
VICARIOUS LIABILITY
• If there are multiple defendant doctors all employed by
the same hospital then what happens?
• Are their percentages of liability added up?
• What if they add up to more then 60%?
• If there is a primary care physician who is 30% liable and
two hospital doctors each 30% and 40% responsible
respectively, can the hospital, vicariously liable for a 30%
doctor and a 40% doctor, be responsible for the entire
recovery including the amount that is the primary care
doctor’s portion?
• If the hospital is found liable on a corporate basis, is its
own share of the liability added to its vicarious share?
By: Clifford A. Rieders, Esq.
68
PHYSICIAN AND HOSPITAL DEFENDANTS
Same scenario as with multiple defendant
physicians although exaggerated because typically
cases against hospital defendants have smaller
percentages of liability than against the individual
physicians.
Therefore, temptation to sue more people to
make sure there is more coverage.
By: Clifford A. Rieders, Esq.
69
CONTRIBUTION
Greater likelihood of contribution
claims by doctors or hospitals
against other defendants?
By: Clifford A. Rieders, Esq.
70
PHANTOM PARTIES?
If a plaintiff settles with any
defendant or enters into any release
with any non-defendant, there may be
apportionment of liability upon
appropriate request and proofs.
By: Clifford A. Rieders, Esq.
71
A CHANGE IN THE LAW?
It can be argued that this is not a
change from current law where there may
be an apportionment of liability with respect
to a settling defendant. Whether that also
applies to non-parties with whom there has
been a settlement is an open question.
By: Clifford A. Rieders, Esq.
72
ADMISSIBILITY OF RESPONSIBILITY
“An attribution of responsibility to any person or
entity as provided in this subsection shall not be
admissible or relied upon in any other action or
proceeding for any purpose.”
What does that mean?
Is this intended to provide that collateral
estoppel or res judicata is no longer applicable to a
party found liable or with whom there has been a
settlement?
By: Clifford A. Rieders, Esq.
73
ENHANCED IMPORTANCE OF
VICARIOUS/OSTENSIBLE LIABILITY
Plaintiffs with significant damages
will have to work harder in their cases
against physicians employed by
hospitals or physicians employed by
any entity where there is vicarious
liability.
By: Clifford A. Rieders, Esq.
74
INDIVIDUAL DOCTORS PERSONAL ASSETS ON
THE LINE?
Without question, the statute will place sole
practitioners in the position of greater jeopardy with
respect to their personal assets. Attorneys will have
a greater incentive for suing physicians individually
and keeping those judgments on file indefinitely
where excess verdicts are obtained.
By: Clifford A. Rieders, Esq.
75
CORPORATE PARTIES
Physician hospital groups and hospital
defendants will find themselves under greater
scrutiny in serious damage cases. Unfortunately,
discovery in corporate cases, unlike vicariously
liable defendants, is severely limited by
Pennsylvania Peer Review Protection Act and other
statutes in making discovery against corporate
defendants very difficult.
By: Clifford A. Rieders, Esq.
76
SETTLEMENT
In terms of settlements, some argue the statute
will make settlements more difficult. It will be
important when settling a case to try to obtain an
agreement as to whether the non-settling
defendants intend to try to prove the case against
the settling defendant.
By: Clifford A. Rieders, Esq.
77
CLUTCHES OF HOSPITALS
Undoubtedly the law will drive doctors into the
clutches of hospital employment just to protect their
own assets. That was one of the motivations behind
the Hospital Association of Pennsylvania so strongly
supporting the legislative defendant.
By: Clifford A. Rieders, Esq.
78
COVERAGE
The virtual abolishment of joint and several
liability in most circumstances will cause carriers and
individual physicians to revisit obtaining only a total of
$1 million coverage. Currently the primary limit is
$500,000 and the Mcare portion is $500,000 of
insurance coverage for medical liability claims.
By: Clifford A. Rieders, Esq.
79
MCARE RESPONSE
How will Mcare react? There are those
who argue that Mcare will simply use the
virtual abolishment of joint and several liability
as an excuse not to settle cases.
By: Clifford A. Rieders, Esq.
80
RELEASES
A well insured defendant or one with assets,
who does not possess a large share of the liability, is
less likely to make a payment upon the “risk” factor
associated with joint and several liability.
By: Clifford A. Rieders, Esq.
81
SETTLEMENT STRATEGY
• In the new scenario, if a case is worth $1 million and a plaintiff
thinks they have a 10% shot against D-2, they can simply demand
$100,000. Since the law declares that a party with less than 60%
responsibility cannot be a joint tortfeasor, the plaintiff will retain
the benefit of the bargain.
• Plaintiff’s will want to assure that there is at least a 60% liable party
with adequate assets while defendants will want to diminish the
likelihood of any one party being responsible.
• Defendant may join other parties but they are not going to want
to “dump” on one another at trial but rather spread responsibility
around or present a united front.
• This may ensure greater cooperation among defendants.
• It may also be more likely that defendants who are sued may not
join others but point to a nebulous “phantom” defendant.
By: Clifford A. Rieders, Esq.
82
GIANT EAGLE IMPLICATIONS
The potential advantages of a Giant Eagle settlement are
gone.
Jury verdict of $100,000. Settling defendant was only 25%
at fault, and non-settling defendant was 75% at fault. Settling
defendant owes no more money to the plaintiff, and nonsettling defendant owes his share of the verdict, $75,000. The
plaintiff ends up with $115,000 ($40,000 in settlement from
settling defendant prior to trial, and $75,000 from non-settling
defendant). Settling defendant gets no money back as a
result of “overpaying” i.e., paying $40,000 where the jury
would have only made settling defendant pay $25,000. The
non-settling defendant gets no reduction in what he has to
pay even though his full payment will result in the plaintiff
receiving a “windfall” of $15,000 beyond the jury verdict of
$100,000. This is the “good bargain” joint tort.
By: Clifford A. Rieders, Esq.
83
PRO TANTO RELEASES
Pro tanto, dollar for dollar, releases are very rare
since defendants normally would never agree to
them. The defendant did not want to be exposed
to a potential claim for contribution if the nonsettling defendant ended up paying more than its
percentage share of the verdict. Without joint and
several liability, the non-settling defendant will never
pay more than its percentage share. The exception
is where the non-settling defendant is more than
60% at fault.
By: Clifford A. Rieders, Esq.
84
PRO TANTO RELEASE BEFORE ACT 17
• Plaintiff accepts a pro tanto release from D1 for
$30,000 and proceeds to trial against D2. Jury
verdict is for $100,000 with 50/50 liability assessed
between the two defendants. Plaintiff receives
$70,000 from D2: $100,000 less $30,000 credit for the
settlement with D1. However, D2 will turn around
and sue D1 for contribution of the $20,000 over D2’s
50% share.
By: Clifford A. Rieders, Esq.
85
PRO TANTO RELEASE AFTER ACT 17
• Same hypothetical, but Plaintiff can only collect the
$50,000 from D2 that represents its 50% of the
verdict. Under the new version of the statute, there
is no contribution claim against D1 because D1 and
D2 are not joint tortfeasors. However, if D2 is 60%
liable, D2 will pay Plaintiff $100,000 less the credit for
the $30,000 settlement with D1, or $70,000; D2 will
have a contribution claim for $10,000.
By: Clifford A. Rieders, Esq.
86
PRO RATA RELEASES
Pro rata language only becomes necessary
under the common law because without it, the
settling defendant had to worry about being liable for
contribution if the non-settling defendant paid more
than his “rightful” share. That should no longer be an
issue.
By: Clifford A. Rieders, Esq.
87
PRO RATA RELEASE BEFORE ACT 17
• Plaintiff accepts a pro rata release from D1 for
$30,000 and proceeds to trial against D2. Jury
verdict is for $100,000 with 50/50 liability assessed
between the two defendants. Plaintiff receives the
$30,000 in full satisfaction of D1’s 50% share, and
also $50,000 from D2 as its 50% share of the verdict.
There is no claim for contribution.
By: Clifford A. Rieders, Esq.
88
PRO RATA RELEASE AFTER ACT 17
• Same hypothetical, same result. Even if D2 is 60%
liable, the Plaintiff receives the $30,000 from D1 in
satisfaction of D1’s 40% share, D2 will pay Plaintiff
$100,000 less the credit for $30,000 from D1, or
$70,000, and there will be no claim for contribution.
By: Clifford A. Rieders, Esq.
89
MEDICAL MALPRACTICE AND NON-MEDICAL
MALPRACTICE CASES
In order to be joint tortfeasors, the court must examine
whether the damages are overlapping or whether they are capable
of being separated. Even the timing of the negligence is a factor
the court will examine.
A motor vehicle incident occurs on January 1st and causes a
broken leg. A month later, when the doctor is removing the cast he
renders the patient a paraplegic by his negligence. The doctor and
the motorist may not be joint tortfeasors. If the damages are $3
million and the motorists insurance coverage is $15,000, it is to
plaintiff’s advantage for the doctor and the defendant motorist not
to be joint tortfeasors under Act 17. The paraplegia caused by the
doctor is going to cause much greater damages than the broken
leg caused by the motorist. But the causal negligence of the
motorist may be over 60%.
It is to the plaintiff’s advantage for these two parties not to
be jointly and severally liable. Prior to the change in the law, the
plaintiff would have wanted joint and several liability.
By: Clifford A. Rieders, Esq.
90
SCENARIO #2
The negligence of the defendant motorist and the
hospital occur close in time and the damages caused by
the defendant motorist is a head trauma and the hospital
fails to diagnose a brain bleed. In this situation the
damages may be difficult to separate.
If there is joint and several liability and the motorist
only has $15,000 in insurance, the plaintiff may be in a very
precarious position if the liability of the defendant motorist
is very strong, such as the case where the defendant
motorist ran a red light. In this context, the plaintiff is going
to try to argue that the defendant motorist and the hospital
are not jointly and severally liable and that it is possible to
segregate the damages from the failure to diagnose the
brain bleed from the initial minor concussion caused by
defendant motorist.
By: Clifford A. Rieders, Esq.
91
PRECIS`
What is bad about this change in joint and
several liability is that it is very harmful for the injured
party where a defendant is impecunious,
underinsured, or does not have assets and the plaintiff
is very seriously hurt. The more damages a person
suffers at the hands of a party who is not 60% liable,
the greater advantage is reaped by the less than 60%
liable due to the effect of the law.
By: Clifford A. Rieders, Esq.
92