8th Annual Medical Malpractice Seminar

Transcript 8th Annual Medical Malpractice Seminar

8th

Annual Medical Malpractice Seminar

Sofitel Hotel, Philadelphia November 19, 2013 9:00 a.m. – 3:45 p.m.

Presented by: Clifford A. Rieders, Esq .

Rieders, Travis, Humphrey, Harris Waters, Waffenschmidt & Dohrmann 161 West Third Street Williamsport, PA 17701 Phone: 570-323-8711 Fax: 570-567-1025 Email: [email protected]

www.riederstravis.com

MCARE Act-S.O.L

MATHARU V. MUIR

29 A.3D 375 (PA. SUPER. 2011) JUDGE MUSMANNO • • • • • Parents of deceased infant brought wrongful death and survival actions against clinics involved in care of Rh-negative mother during pregnancy. At issue is § 513 of the Mcare Act .

The specific statue of repose set forth at court decision.

§ 513(d) of the Mcare Act controls over the general statutory language of 42 Pa.C.S.A. § 5524 governing statute of limitations for wrongful death and survival actions, and affirmed the trial Pursuant to § 513 plaintiff is required to commence both wrongful death and survival action within two (2) years after the date of death of the child. Plaintiffs commenced their wrongful death/survival action by writ of summons within two (2) years of child ’ s death.

Previously survival actions ran two (2) years from the date of the harm, not necessarily two years from the date of death. The child suffered an injury either at his birth or upon his death (two days later). Plaintiffs commenced their survival cause of action well within the two years of the child ’ s injury.

MATHARU V. MUIR

29 A.3D 375 (PA. SUPER. 2011) JUDGE MUSMANNO • • • • The evidence viewed in the light most favorable to plaintiffs reflects that the child was in a class of persons whose health/life was likely to be threatened by Defendants ’ failure to administer RhoGAM to mother in 1998. It was reasonably foreseeable that Defendants administer RhoGAM to mother in 1998 could injure her future unborn children. ’ failure to The purpose of administering RhoGAM is to protect the future unborn children of mother and father. Under these circumstances, there is a duty owed by Defendants to the child. Courts have adopted a five-factor test as to whether to impose a duty.

OSBORNE V. LEWIS

59 A.3D 1109 (PA. SUPER 2012) JUDGE OLSON • • • • • LASIK surgery performed June 1, 2000. August 2004, patient complained of decreased vision which was confirmed. After seeing doctors and specialists, patient was told that the LASIK surgery caused his vision loss.

Patient filed malpractice claim on July 24, 2007. Patient ’ s medical malpractice action was subject to seven year statute of repose in the MCARE Act where the surgery took place prior to MCARE ’ s adoption and the injury manifested itself after the adoption of MCARE. The court further held that the seven year statute of repose could not be tolled by the doctrine of fraudulent concealment because the doctrine of fraudulent concealment only applied to MCARE ’ s two year statute of repose applicable to wrongful death and survival actions. Plaintiff ’ s claims against Appellants are barred by the MCARE Act's statute of repose.

OSBORNE V. LEWIS

59 A.3D 1109 (PA. SUPER 2012) JUDGE OLSON • • • • The statute mandates that no medical malpractice claim “ may be commenced seven years from the date of the alleged tort or breach of contract.

” 40 P.S. § 1303.513

It was undisputed that the tort or breach of contract occurred on the date of surgery, June 1, 2000, which was more than seven years prior to the filing of the claim. Fraudulent concealment does not apply to toll the statute of repose, 40 P.S. § 1303.513. Mcare Act specifially provides for the doctrine of fraudulent concealment to apply in cases of wrongful death or survival actions.

The absence of such an express provision for other circumstances evidences legislative intent that the fraudulent concealment exception does not apply to claims addressed by subsection (a).

YUSSEN V. MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR FUND

46 A.3D 685 (PA. 2012) • Physician submitted a claim to the MCARE Fund, requesting indemnity and defense coverage for a medical malpractice claim brought against him. The MCARE Fund denied coverage because the claim was made more than four years after the alleged malpractice. • For the purposes of § 513 of the MCARE Act, if a claim against a health care provider is made more than four years after the breach of contract or tort occurred, the claim should be defended by the Department of Insurance.

• The mere filing of a praecipe for a writ of summons does not suffice to make a claim for the purpose of the statute of limitations, at least in the absence of a demand communicated to those from whom damages are sought.

Nursing Homes

SCAMPONE V. GRANE HEALTHCARE CO.

11 A.3D 967 (PA. SUPER. 2010) JUDGE BOWES • • • Nursing home resident brought cause of action for malpractice, alleging that dehydration and malnutrition caused resident ’ s fatal heart attack.

Court held that evidence was sufficient to find that nursing home could be liable for resident ’ s death under a theory of corporate negligence. There is sufficient evidence of misconduct to warrant submission of the issue of punitive damages to the jury.

SCAMPONE V. GRANE HEALTHCARE CO.

11 A.3D 967 (PA. SUPER. 2010) JUDGE BOWES • • • • Nursing home is analogous to a hospital in the level of its involvement in a patient ’ s overall health care.

Nursing home provides comprehensive and continual physical care for its patients.

Nursing home is akin to a hospital rather than a physician ’ s office.

The nursing home was understaffed, the nurses inadequate and state surveys showed that there were many complaints.

SCAMPONE V. HIGHLAND PARK CARE CENTER

11 A.3D 967 (PA. SUPER. 2010) JUDGE BOWES • Estate of nursing home resident who suffered a fatal heart attack due to malnutrition and dehydration brought action against nursing home facility and management company.

• Nursing home facility and management company were subject to potential direct liability for corporate negligence, as well as vicarious liability for resident ’ s death. Nursing home and management company are not immune or exempt from corporate liability for negligence. • Nursing home and management company were subject to potential direct liability for resident ’ s death where the requisite resident-agency relationship exists to establish that the agency owes the resident a duty of care.

SCAMPONE V. HIGHLAND PARK CARE CENTER

11 A.3D 967 (PA. SUPER. 2010) JUDGE BOWES • Staff failed to conduct ordered DUI testing, to ensure that the resident was consuming sufficient fluids and food, and falsified records to show that medications or treatment were provided when it was not. • The administrators temporarily increased staff for state inspections. • There is no persuasive argument for the proposition that the availability of a vicarious liability claim is a substitute for recognizing a corporation's direct and non-delegable duty or duties of care to a plaintiff.

SCAMPONE V. HIGHLAND PARK CARE CENTER

11 A.3D 967 (PA. SUPER. 2010) JUDGE BOWES • • • • Superior Court remanded for new trial; Pa Supreme Court affirmed, remanded and held “ that a nursing home and affiliated entities are subject to potential direct liability for negligence, where the requisite resident-entity relationship exists to establish that the entity owes the resident a duty of care[.] ” “ [A] corporation may owe duties of care directly to a plaintiff separate from those of its individual agents, such as duties to maintain safe facilities, and to hire and oversee competent staff.

” That a corporation acts through agents does not preclude “ hailing a corporation into court on direct liability tort claims.

” There is no immunity or exemption from direct liability, which is an exception to “ the general rule that an entity must meet the obligations it incurs in functioning.

” Court declined invitation to recognize a judicial immunity for nursing homes.

SCAMPONE V. HIGHLAND PARK CARE CENTER

11 A.3D 967 (PA. SUPER. 2010) JUDGE BOWES • Rejected argument that Thompson created a corporate cause of action only against hospitals.

• Inquiry is not whether an entity is similar to a hospital.

• “ The relevant question is whether the legal principles explicated in Thompson, or elsewhere in our decisional law, apply to describe appellants ’ legal duty or obligations to Ms. Scampone, given the considerations which pertain.

” 57 A.3d 605. • In essence the question is whether there was sufficient evidence of a relationship with the entities to establish that duties of care exist under the Restatement Section 323 or the Althaus factors. Case remanded for that determination.

HALL V. EPISCOPAL LONG TERM CARE

54 A.3D 381 (PA. SUPER 2012) JUDGE JACKSON • Estate of nursing home resident brought negligence action against nursing home facility.

• Superior Court held that the issue of whether punitive damages were warranted in nursing home case was a question for the jury.

• Evidence of understaffing of the nursing home would support a claim of corporate negligence, and that evidence supported finding that nurses were negligent when they caused resident to suffer from pain when given restorative care. • • A nursing home is akin to a hospital in the level of its involvement in a patient operation and management of the nursing home.

’ s overall care. Here, the court held that the nursing home is subject to vicarious liability for the acts and omissions of the RNs and CNAs since Episcopal was responsible for the full

HALL V. EPISCOPAL LONG TERM CARE

54 A.3D 381 (PA. SUPER 2012) JUDGE JACKSON • Case was remanded for further proceedings concerning punitive damages, as trial court erred in failing to present evidence for punitive damages to the jury as well as submitting to the jury the question of whether punitive damages were appropriate. • Evidence similar to that presented in Scampone was sufficient for punitive damages, i.e., acted in an outrageous fashion with reckless disregard to the rights of others and/or created an unreasonable risk of harm to the resident by chronic understaffing, manipulated staffing around state inspections, falsified records. The resident went entire months without a bath and “ was left to lie in her own filth.

”

LAFFE, ET. AL, V. JEWISH HOME OF GREATER HARRISBURG, ET. AL.,

NO. 09 CV 10920 (DAUPHIN C.P. AUGUST 14, 2012) JUDGE TURGEON • Defendants filed motion for Summary Judgment in nursing home abuse and neglect case.

• The Court allowed claims of corporate negligence to proceed against both personal care and skilled nursing facility even though Scampone does not expressly extend to the latter Scampone v. Grane HealthCare Co., 11 A.3d 967 (Pa. Super. 2010), appeal granted, 15 A.3d 427 (Pa. 2012).

• A negligence per se claim under Pennsylvania ’ s Neglect of Care-Dependent Person Statute, 18 Pa.C.S.A. § 2713, does not create an independent basis of tort liability, but rather establishes, by reference to a statutory scheme, the standard of care appropriate to the underlying tort.

• To prevail on a corporate negligence claim, plaintiff need only produce evidence that defendants had “ actual or constructive knowledge of the defect or procedures that created the harm ” and that its negligence was a “ substantial factor in bringing about the harm.

” • All of the entities are the same in this case. It is not clear that Scampone would not apply to the skilled nursing facility.

GRAMMER V. JOHN J. KANE REGIONAL CENTERS-GLEN HAZEL

570 F.3D 520 (3D CIR. 2009) JUDGE NYGAARD • Daughter brought a wrongful death and survival claim under Section 1983 claiming that violations of the Federal Nursing Home reform Amendments (FNRA), 42. U.S.C. § 1396r et.seq. led to her mother ’ s death.

• Court of Appeals held that Federal Nursing Home Reform Amendments were sufficiently rights-creating that they could be enforced under Section 1983.

• Rights conferred by Federal Nursing Home Reform Amendments upon county nursing home resident and Medicaid recipient were not so “ vague or amorphous ” that their enforcement, via Section 1983, would strain judicial resources as required to confer upon daughter individual federal rights enforceable under Section 1983, arising out of nursing home ’ s failure to provide resident proper care.

GRAMMER V. JOHN J. KANE REGIONAL CENTERS-GLEN HAZEL

570 F.3D 520 (3D CIR. 2009) JUDGE NYGAARD • Various rights were clearly delineated by the provisions at issue, and the repeated use of the phrases “ must provide, ” “ must maintain ” and service and care for residents and Medicaid patients “ must conduct ” were not unduly vague or amorphous, but made clear that nursing homes must provide a basic level of • The lack of care resulted in “ decubitus ulcers, ” death.

malnutrition, and sepsis resulting in • The issue is whether a violation of the FNRA gives rise to a § 1983 claim. • In Blessing, the Supreme Court set forth a three-part test to determine whether a statute confers a federal right that may be redressed through a “ vague and amorphous obligation on the states.

” § 1983 claim. First, courts should determine whether Congress intended that the statutory provision in question benefits the plaintiff; second, courts should decide whether the right asserted is so that its enforcement would strain judicial competence; and lastly, courts should determine whether the statute unambiguously imposes a binding

BLESSING THREE-PART TEST

The plaintiff is an individual that the statute is meant to protect, 1.

The right is not so “ vague and amorphous ” for enforcement and 1.

The statute unambiguously imposes an obligation on the state.

• Once those three factors are established, the right to bring a a specific foreclosure of a remedy.

§ 1983 claim is presumed unless rebutted by Congress having made

Informed Consent/Battery

COOPER EX REL. COOPER V. LANKENAU HOSPITAL

51 A.3D 183 (PA.2012) JUSTICE BAER • Patient and patient ’ s child brought medical battery action against hospital and physicians, alleging that physician had delivered baby by cesarean section despite patient ’ s refusal to consent to the procedure.

• Was performance of a c-section consented to, and if not is it a battery?

• In a medical battery/lack-of-consent case plaintiff does not need to prove that the defendant surgeon performed the unauthorized operation with intent to harm the patient.

COOPER EX REL. COOPER V. LANKENAU HOSPITAL

51 A.3D 183 (PA.2012) JUSTICE BAER • • • • Battery is an “ act done with the intent to cause a harmful or offensive contact with the body of another , and directly results in the harmful or offensive contact with the body of another.

” If the doctor operated without consent, the jury must find that the battery was committed.

The charge further acknowledged properly the physician need not be negligent to be liable for battery, and that physical injury in not required to prove an unauthorized touching. Order of Superior Court which affirmed the Trial Court is affirmed.

’ s entry of judgment on the verdict in favor of appellees/Lankenau Hospital

Certificate of Merit

LIGGON-REDDING V. SUGARMAN

659 F.3d 258 (2011) JUDGE NYGAARD • Certificate of merit rule applies in federal court.

Ex Parte Communication

GENTILE V. TIMKO

NO. 215 (CLINTON CO., AUG. 11, 2011) JUDGE WILLIAMSON • • Opinion and reaffirmation of opinion that a court, under Rule 4012, can prevent defendants from talking to a pathologist who they employ. The pathologist had performed a post-mortem on a deceased infant. The court ruled that 4003.6 did not apply because a doctor cannot be considered treating a dead person.

Court held that parents future lost earnings.

’ mental health treatment records and employment records were discoverable in a stillbirth case in which the parents claimed damages for

Liens

E.D.B EX REL. D.B. V. CLAIR

987 A.2D 681 (PA. 2009) (JUDGE MCCAFFERY) • • • • • • The parents and the guardians of an incapacitated minor settled a medical malpractice claim.

Lower court signed an order that settled the case and required payment, from the settlement proceeds, to satisfy a Department of Public Welfare (DPW) subrogation lien arising from medical expenses paid on behalf of the incapacitated minor. Parents and guardians appealed the payment. Minor suffered severe physical and mental disabilities from medical negligence at the time of birth.

Court held that DPW was entitled to a portion of settlement proceeds that the minor alone recovered during her majority.

Court held that a Medicaid beneficiary has a cause of action against his tortfeasor to recover and reimburse DPW for medical benefits received during beneficiary's minority.

After settlement, the trial court required payment of the subrogation lien held by the Department of Public Welfare (DPW) for medical expenses paid on behalf of the minor out of the settlement proceeds.

E.D.B EX REL. D.B. V. CLAIR

987 A.2D 681 (PA. 2009) (JUDGE MCCAFFERY) • • • • • Plaintiff ’ s appeal asserted that neither the parents nor the minor could recover for medical expenses.

The parents were time-barred from seeking compensation for medical expenses their daughter incurred when the daughter was still a minor.

At common law, only the parents, not the minor herself, could recover for medical expenses.

The issue was whether DPW can “ …obtain reimbursement from a tortfeasor for Medicaid expenditures made on behalf of a disabled minor ” when the claim by the minor ’ s parents is barred by the statute of limitations.

The Pennsylvania Supreme Court decided that DPW can – resolving incompatible holdings reached by the Supreme Court in this case and the Commonwealth Court in favor of the Commonwealth Court ’ s decision in Shaffer-Doan ex re. Doan v. Com., DPW, 960 A.2d 500 (Pa. Cmwlth. 2008).

E.D.B EX REL. D.B. V. CLAIR

987 A.2D 681 (PA. 2009) (JUDGE MCCAFFERY) • Minors can seek third party medical expenses incurred on their behalf -- As long as their parents ’ claims do not duplicate them.

• The Fraud and Abuse Control Act (FACA, 62 P.S. §§ 1404, 1409), applied to the minor ’ s settlement proceeds.

• Both the parents and the injured minor were the intended beneficiaries of medical assistance benefits from DPW.

ZALEPPA V. SEIWELL

9 A.3D 632 (PA. SUPER. 2010) JUDGE MUNDY • • • • Injured motorist brought action against other motorist for automobile accident.

Court entered judgment in favor of injured motorist and denied other motorist's post-trial motion, which requested that court enter order directing her to pay verdict by naming Medicare, along with injured motorist and her attorneys, as payees on draft satisfying verdict, or by paying verdict into court pending notification from Medicare that all outstanding Medicare liens had been satisfied. Other motorist appealed.

Judgment entered following a trial in which jury returned a verdict of $15,000.

There is no right by the defendant to put money aside for a potential outstanding Medicare lien. There is no legal basis to assert the interests of the United States government as to reimbursement of the Medicare liens

WOS V. E.M.A.

133 S.CT. 1391 (2013) JUSTICE KENNEDY • Guardian at litem for minor child, who had been a recipient of Medicaid benefits and who had received an award from settlement of medical malpractice suit, brought § 1983 action against North Carolina Department of Health and Human Services, which had placed Medicaid lien on settlement proceeds, seeking declaratory and injunctive relief for deprivation of child's rights under federal Medicaid anti-lien provision.

• The Supreme Court held that a North Carolina statute governing the state ’ s reimbursement from proceeds of tort damages recovered by a Medicaid beneficiary, is preempted by the federal Medicaid anti-lien provision, to the extent that the North Carolina statute can be interpreted as creating a conclusive presumption that one-third of a Medicaid beneficiary's tort recovery represents compensation for medical expenses.

WOS V. E.M.A.

133 S.CT. 1391 (2013) JUSTICE KENNEDY • The Medicaid statutes set both a floor and a ceiling on a State's potential share of a beneficiary's tort recovery.

• Medicaid statutes require an assignment to the State of the right to recover that portion of a settlement that represents payments for medical care, but also precluding attachment or encumbrance of the remainder of the settlement.

•

The Medicaid anti-lien provision prohibits a State from making a claim to any part of a Medicaid beneficiary's tort recovery not designated as payments for medical care.

TRISTANI V. RICHMAN

652 F.3D 360 (3 RD CIR. 2011) CIRCUIT JUDGE HARDIMAN • This case is a punitive class action filed by three Pennsylvania Medicaid beneficiaries subject to Pennsylvania Department of Welfare liens.

• State ’ s Medicaid liens on settlements or judgments (for medical costs) not prohibited by anti-lien and anti-recovery provisions of the Social Security Act.

• Pennsylvania's default apportionment mechanism to divide Medicaid beneficiaries' settlements or judgments against third parties between medical costs and other expenses was consistent with federal law.

• In determining what portion of a Medicaid beneficiary's third-party recovery state may claim in reimbursement for Medicaid expenses, state must have in place procedures that allow a dissatisfied beneficiary to challenge the default allocation.

• This implied exception for medical costs to anti-lien and anti-recovery provisions was assumed but not decided by the Supreme Court in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 280 n. 9, 291–92, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006).

ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES V. AHLBORN

126 S.CT. 1752 (2006 ) JUSTICE STEVENS • Medicaid recipient sued the Arkansas Department of Human Services, challenging ADHS ’ s assertion of claim or lien against proceeds received by recipient in settlement of personal injury lawsuit.

• Supreme Court held that Arkansas statute automatically imposing lien in favor of ADHS on tort settlement proceeds was not authorized by federal Medicaid law, to the extent that statute allowed encumbrance or attachment of proceeds meant to compensate recipient for damages distinct from medical costs. • Supreme Court held that the “ anti-lien provision of federal Medicaid law precluded Arkansas statute's encumbrance or attachment of proceeds related to damages other than medical costs[.] ”

KONIG V. YESHIVA IMREI CHAIM VIZNITZ OF BORO PARK INC . ET AL.

1:12-CV-00467-JG, DOC. 10, (EASTERN DIST. NY, MARCH 30, 2012) JUDGE GLEESON • • • • • • Konig brought an action for damages against Yeshiva stemming from a 2008 accident where Konig was injured. The negligence action had been settled in March, 2011. While the action was pending, Rawlings—on behalf of Oxford—informed Konig that Oxford asserted a claim against any settlement that Konig obtained in the action. According to Rawlings, Oxford had paid approximately $24,000 for medical care necessitated by the incident, pursuant to its health insurance policy with Konig. Rawlings demanded that Konig use any sums collected through the negligence suit to reimburse Oxford for the cost of these medical benefits.

The Medicare Law does not provide a private right of action –express or implied – to MAP providers (Medicare Advance Providers) for subrogation rights.

Federal jurisdiction denied.

KONIG V. YESHIVA IMREI CHAIM VIZNITZ OF BORO PARK INC . ET AL.

1:12-CV-00467-JG, DOC. 10, (EASTERN DIST. NY, MARCH 30, 2012) JUDGE GLEESON • Although the Medicare statute clearly authorizes the government to bring an action to enforce its subrogation rights under its own Medicare insurance contracts, the statute does not expressly accord private MAP providers the same right.

MEDICARE SECONDARY PAYER-LIABILITY INSURANCE (INCLUDING SELF-INSURANCE) SETTLEMENTS, JUDGMENTS, AWARDS, OR OTHER PAYMENTS AND FUTURE MEDICALS - INFORMATION

• Where beneficiary ’ s treating physician certifies in writing that treatment for the alleged injury related to the liability insurance (including self-insurance), “ settlement ” has been completed as of the date of the “ settlement, ” and future medical items and/or services for that injury will not be required.

Release of Claims

MALONEY V. VALLEY MEDICAL FACILITIES

984 A.2D 478 (PA. 2009) JUDGE SAYLOR • • • • The plaintiff husband brought a medical malpractice claim against a radiologist and internist and their associated medical institutions for failing timely to diagnose and treat his deceased wife ’ s osteosarcoma. The plaintiff settled with the radiologist – with the settlement funded by that physician ’ s primary liability insurer and the Medical Care Availability and Reduction of Error Fund (MCARE fund) as an excess insurer. The settlement released the radiologist and all of the institutional medical providers associated with both the radiologist and the internist. The release unambiguously reserved claims against the internist in an amount limited to the amount of his maximum primary liability insurance coverage. The release expressly included a pro-rata reduction for the internist for any liability a verdict attributed to the settling defendants and the release included a hold-harmless commitment.

MALONEY V. VALLEY MEDICAL FACILITIES

984 A.2D 478 (PA. 2009) JUDGE SAYLOR • • • • The issue is whether the common-law rule requiring release of a principal upon release of an agent applies in the reverse scenario: does the release of a principal hospital automatically release the agent despite an express reservation of claims against the agent-doctor. The Pennsylvania Supreme Court held that the release of the principal (the medical institutions) did not release the agent-internist. Court held that in a scenario entailing a plaintiff ’ s surrender of vicarious liability claims only and express preservation of claims against an agent, the parties to a settlement should be afforded latitude to effectuate their express intentions.

Supreme Court explicitly disapproved Pallante v. Harcourt Brace Jovanovich, Inc., 629 A.2d 146 in which the Superior Court extended Mamalis v. Atlas Van Lines, Inc., 560 A.2d 1380 (1989) to hold that the release of the principal automatically operated as a release to the agent as a matter of law.

HMO

NORDI V. KEYSTONE HEALTH PLAN WEST, INC.

989 A.2D 376 (PA. SUPER. 2010) JUDGE CLELAND • • • • Plaintiff had health coverage, under an HMO with Highmark as a company determining coverage, when she was injured in a car accident. The HMO authorized twenty outpatient physical therapy visits but denied coverage for further physical therapy sessions that were needed and prescribed by her physician.

As a result, the plaintiff discontinued her prescribed and necessary therapy and sued for breach of contract, bad faith and unfair trade practices. The trial court granted summary judgment based upon the plain language of the contract to provide therapy over a 60-day period beginning with the first therapy session.

NORDI V. KEYSTONE HEALTH PLAN WEST, INC.

989 A.2D 376 (PA. SUPER. 2010) JUDGE CLELAND • • • • • HMO Act exempted HMO from claims of bad claim under the Bad Faith Act. Bad faith claim alleged failure to provide coverage, to investigate the claim to communicate with her, and to reach a fair settlement. HMO Act ’ s enabling legislation explicitly provides that HMOs are not subject to the law related to insurance providers. Neither Highmark nor the HMO handled the claim in bad faith. A bad faith claim requires clear and convincing evidence of a frivolous or unfounded refusal to pay a claim, not mere negligence or bad judgment.

Misc. Trial Issues

TRIAL ISSUES

• • • 1.

• 2.

ADMISSIBILITY OF EVIDENCE Patient

’

s Medical History Inculpatory Statements by Treating Physician EXPERT JURY INSTRUCTION ON NURSE

’

S DUTY REMITITTUR

RETTGER V. UPMC SHADYSIDE

991 A.2D 915 (PA. SUPER. 2010) JUDGE BENDER • An estate brought a wrongful death and survival claim arising from medical negligence resulting in the death of the patient. • The patient was diagnosed at age twenty-four with glioblastoma multiforme, an aggressive brain tumor with a differential diagnosis of brain abscess, after experiencing severe headaches. • Court held that trial court did not abuse its discretion by restricting evidence of patient ’ s medical history and refusing to admit allegedly inculpatory statements by treating physician.

RETTGER V. UPMC SHADYSIDE

991 A.2D 915 (PA. SUPER. 2010) JUDGE BENDER • • • Trial court correctly instructed jury on nurse's duty to safeguard patient from incompetent practice.

The patient was transferred to the defendant medical facility and came under the care of Dr. Bonaroti. A surgical procedure was scheduled for 7:30 a.m. on Wednesday, November 19, 2003. The day prior to the scheduled surgery, the patient displayed uneven pupil size and substantial pain. The nurse noted on the patient ’ s chart that his left eye was fixed and dilated – which indicates an emergency condition. She also telephone Dr. Bonaroti and advised him about the condition.

RETTGER V. UPMC SHADYSIDE

991 A.2D 915 (PA. SUPER. 2010) JUDGE BENDER • The doctor and nurse differ as to what was communicated. Dr. Bonaroti did not report to the hospital or order emergency surgery and nurse Stalder did not invoke the nurse chain of command or Condition C. • At 6:00 a.m. nurse Stalder contacted Dr. Bonaroti who was already on his way to the hospital. The patient herniation. ’ s condition had worsened, he had been suffering from a fast growing brain abscess that, left unattended, had caused a brain • The trial court granted a new trial on the survival claim limited to damages after a jury awarded $2.5 million on the wrongful death claim but nothing on the survival claim.

RETTGER V. UPMC SHADYSIDE

991 A.2D 915 (PA. SUPER. 2010) JUDGE BENDER • 1.

Eliminating Patient ’ s Medical History.

It was not error to exclude additional evidence about alleged earlier failure to diagnose brain tumor.

Inculpatory Statements by Treating Physician and Hospital ’ s Attempt to Amend Its Complaint.

• It was co-defendant that tried to get in the statements. There was no cross claim filed or proper joinder. Therefore there was no reason to permit this at trial. The hearsay statements were likewise not admissible.

RETTGER V. UPMC SHADYSIDE

991 A.2D 915 (PA. SUPER. 2010) JUDGE BENDER • 3.

Allowance of Physician to Testify as Expert.

The doctor is permitted to give an opinion with respect to the nurse.

• There is an overlap of expertise between a neurosurgeon and that of a neurosurgical nurse.

Instruction to the jury on nurses ’ incompetent care.

duty to protect patient from • The charge is not flawed. It ’ s a direct quote from 49 Pa.ADC

§ 21 18(a)(3) which prescribes the duties of a registered nurse.

• The charge is an accurate reflection of the evidence.

RETTGER V. UPMC SHADYSIDE

991 A.2D 915 (PA. SUPER. 2010) JUDGE BENDER

Remittitur on Wrongful Death Claim and Award of New Trial and Survival Claim.

• $2.5 million is not excessive for somebody who is unmarried and has no children or dependents and provide only limited services in his parents ’ home, to which he returned on weekends.

• On survival damages, the jury ’ s aware of zero damages bears no reasonable relationship to the loss actually sustained and the court did not err in awarding a new trial on the survival claim limited to damages.

BUCKMAN V. VERAZIN

54 A.3D 956 (PA. SUPER 2012) JUDGE BENDER • • • • • Patient brought medical malpractice action against surgeon, health system, and hospital, alleging medical negligence as a result of the care patient received after surgeon performed a sigmoid colectomy and colostomy on patient.

Discovery revealed conflicting statements by the physician as to why he performed the surgery in the manner he did. As a result, plaintiff submitted discovery request for the medical records of all sigmoid colectomy and similar procedures by doctor in five preceding years, allowing for the redaction of all identifying information of the non-party patients.

Court of Common Pleas granted patient's motion to compel production of five years of non-party patients' surgical records, and defendants appealed.

Patient ’ s collateral evidentiary interest in the confidential surgical records of other non party patients of surgeon did not overcome the non-party patient ’ s privacy rights and were not relevant to patient ’ s medical malpractice claim.

Error In Judgment Rule

PRINGLE V. RAPAPORT

980 A.2D 159 (PA. SUPER. 2009) JUDGE DONOHUE • Parents brought medical malpractice claim against physician when their infant son sustained tears to multiple nerves in his neck, causing paralysis in his right arm. • During delivery, the infant experienced shoulder dystocia. • The doctor attempted to remedy the shoulder dystocia using the “ McRoberts maneuver.

” • Nonetheless the infant was born with his right arm limp.

PRINGLE V. RAPAPORT

980 A.2D 159 (PA. SUPER. 2009) JUDGE DONOHUE • • • • • Trial court committed reversible error when it provided an error of judgment jury instruction, which provided generally that physicians were not responsible for mere errors in judgment unless the resulting error constituted, or was the result of, negligence.

The issue is whether “ error in judgment ” instruction can be submitted to the jury along with a res ipsa loquiter instruction. “ Error in judgment ” instruction should not be given in medical malpractice claims at all because it confuses the jury. Res ipsa instructs the jury that it can infer negligence based upon evidence.

But, “ Error in judgment ” contradicts this by instructing the jury that it may not infer such negligence.

PASSARELLO V. GRUMBINE

29A.3D 1158 (PA. SUPER. 2011) JUDGE BENDER • Parents of two-month-old child who died as result of undiagnosed and untreated diffuse acute viral myocarditis, a viral infection of the heart muscle, brought medical malpractice action against child's treating physician. • Trial court entered judgment in favor of physician. After their motion for post trial relief was denied, parents appealed.

• Court held that the rule of Pringle v. Rappaport, 980 A.2d 159 (Pa. Super. 2009), abrogating “ error in judgment rule physician was to do good, not harm.

” applied to this case retroactively, where defense counsel argued that the subjective behavior of defendant

PASSARELLO V. GRUMBINE

PA SUPREME COURT NOS. 15-16 WAP 2012 ARGUMENT: NOVEMBER 28, 2012 • • Defense counsel used the error in judgment rule not as measure of whether the doctor deviated from the standard of care in any specific act or omission, but as a measure of the doctor ’ s character as a professional.

Defense counsel argued that regardless of the objective standard of care the doctor in an exercise of continued self-sacrifice, acted with the best intentions and made judgments for which she could not be faulted, in part because they were judgments and a physician cannot warrant care.

PASSARELLO V. GRUMBINE

PA SUPREME COURT NOS. 15-16 WAP 2012 ARGUMENT: NOVEMBER 28, 2012 • • • •

Retroactive application is warranted:

need for clarity (for litigants and jurors) importance of preventing introduction of erroneous legal concepts lack of genuine reliance on the prior rule due to inconsistent and confusing application in the courts outweighs the relatively minimal impacts on the administration of justice.

BUCKMAN V. VERAZIN

54 A.3D 956 (PA. SUPER 2012) JUDGE BENDER • Patient brought medical malpractice action against surgeon, health system, and hospital, alleging medical negligence as a result of the care patient received after surgeon performed a sigmoid colectomy and colostomy on patient.

• The Superior Court followed Passarello v. Grumbine and Pringle v. Rapaport in finding that using an “ error of judgment ” charge in jury instructions in a medical malpractice case wrongly suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment. • The opinion explains that “ [t]his is simply untrue, since in all medical malpractice actions “ [t]he proper focus is whether the physician's conduct (be it an action, a judgment, or a decision) was within the standard of care.

”

BUCKMAN V. VERAZIN

54 A.3D 956 (PA. SUPER 2012) JUDGE BENDER • An “ error of judgment ” jury's deliberations. charge wrongly injects a subjective element into the • “ The standard of care for physicians in Pennsylvania is objective in nature, as it centers on the knowledge, skill, and care normally possessed and exercised in the medical profession. The “ error of judgment he or she deviated from the standard of care.

” ” charge improperly refocuses the jury's attention on the physician's state of mind at the time of treatment, even though the physician's mental state is irrelevant in determining whether

Pharmaceutical

LANCE V. WYETH

4 A.3D (PA. SUPER. 2010) JUDGE ALLEN • • • • • • Plaintiff alleged that Wyeth was negligent in placing an unreasonably dangerous prescription drug on the market and failed to withdraw it upon discovering that it was unsuitable for public consumption.

Under products liability law, comment k of the Restatement (Second) of Torts, § 402A applies. Only two possible strict liability claims: Manufacturing defect claim, or Failure to warn claim A design defect claim for strict liability is not permitted under Pennsylvania when it is asserted against a manufacturer of a prescription drug.

A drug cannot be unreasonably dangerous, even if it is defectively designed, so long as the drug is manufactured properly and contains adequate warnings.

LANCE V. WYETH

4 A.3D (PA. SUPER. 2010) JUDGE ALLEN • Negligent design claim is not foreclosed. The Restatement (Second) of Torts, § 395 addresses manufacturer exemption for prescription drugs.

’ s negligent design of products. Unlike 402A, this provision contains no • Comment k is confined to strict liability and has no application to negligence cases.

• Negligent design claim is not precluded by comment k and a valid cause of action exists.

LANCE V. WYETH

4 A.3D (PA. SUPER. 2010) JUDGE ALLEN • • • • • No duty to recall since that is up to the FDA.

Drug manufacturer protection.

’ s post-sale duty to warn of dangerous propensities provides consumers with a remedy and sufficient No post-sale duty to warn about technological advances when a defect did not exist in the product at the time of the sale.

No independent tort for negligent failure to test.

No claim under Restatement (Third) of Torts: Products Liability § 6(c).

COLEMAN V. WYETH PHARMACEUTICALS, INC.

6 A.3D 502 (PA. SUPER. 2010) JUDGE BOWES • • • • Summary judgment granted in favor of Wyeth Pharmaceuticals and other parties. The summary judgments are reversed.

At issue, was hormone replacement therapy comprising estrogen and progestin in combination to relieve symptoms associated with menopause which caused endometrial cancer.

All filed within who years of the publication of Women cancer. ’ s Health Initiative study linking the use of the drug to the endometrial Decision should be by finder of fact, which in this case was the jury, with respect to reasonable diligence.

DANIEL V. WYETH PHARMACEUTICALS, INC.

15 A.3D 220 (PA. SUPER. 2011) JUDGE DONOHOE • • Case involves use of Prempro, which is estrogen and progestin.

We reverse trial court ’ s order granting Wyeth ’ s post-trial motion for a new trial and reinstate the jury ’ s verdict on compensatory damages. We also reverse trial court ’ s grant of JNOV on punitive damages and reinstate the jury ’ s verdict awarding punitive damages.

MUTUAL PHARMACEUTICALS, INC. V. BARTLETT

133 S.CT. 2466 (2013) JUSTICE ALITO • Plaintiff sustained significant injuries as a result of taking an inflammatory pain reliever medication manufactured by Defendant, generic pharmaceutical company. • Plaintiff brought state court action against generic defendant to recover for her injuries. The action was removed to federal court.

• The Federal Food Drug & Cosmetic Act (FDCA) requires manufacturers to gain FDA approval before marketing any brand or generic drug. Once a drug is approved, FDA regulations prevent a manufacturer from making any major changes to the qualitative or quantitative formulation of the drug, including active ingredients or in the specifications provided in the approved application. 21 CFR Section 314.70(b)(2)(i).

• New Hampshire state statute imposes on manufacturers “ duty to design [their products] reasonably safely for uses which [they] can foresee.

” Plaintiff sued asserting this statute.

MUTUAL PHARMACEUTICALS, INC. V. BARTLETT

133 S.CT. 2466 (2013) JUSTICE ALITO • New Hampshire ’ s design defect statute imposes affirmative duties on manufacturers, including a “ duty to design [their products] reasonably safely for uses which [they] can foresee.

” • Redesign of the drug was not possible for two reasons. • The Food Drug & Cosmetics Act (FDCA) requires a generic drug to have the same active ingredients, route of administration, dosage form, strength and labeling as its branded-equivalent. • Because of the drug at issue, sulindac ’ s simple composition, the drug is chemically incapable of being redesigned. • Since redesign is impossible under the federal statute, which governs generic drugs, this comes into conflict with the state statute, and thus imposes a conflict between state and federal law which the Supreme Court resolved by holding that the federal generic drug law pre-empts the state law defective design claim under the New Hampshire Statute.

HASSETT V. DAFOE

74 A.3D 202 (PA. SUPER. 2013) JUDGE BOWES • Consumer who was allegedly injured after taking the generic drug metoclopramide filed a suit seeking damages for personal injury against generic manufacturers. • Consumer ’ s negligence, strict liability, warranty, fraud and profit disgorgement claims were not federally preempted.

• Consumer ’ s failure to warn claims, based on manufacturer (RLD), were preempted. ’ s failure to strengthen warnings in conformity with that of the reference listed drug

HASSETT V. DAFOE

74 A.3D 202 (PA. SUPER. 2013) JUDGE BOWES • • • Whether all claims asserted by Mr. Hassett and the other plaintiffs against generic drug manufacturers are failure to warn claims pre-empted by the Supreme Court case Mensing v. Pliva.

In Mensing, the Court reasoned that since a generic manufacturer is responsible under federal law for ensuring that its warning label is the same as the brand name's label, and it cannot unilaterally change its label to attach a stronger label as required by state law, it was impossible for generic drug manufacturers to comply with both federal and state law. Court found that generic Defendants gloss over critical distinctions between strict liability and negligence for defective products, breach of warranty, misrepresentation and fraud theories of liability, without examining the state law duty allegedly violated.

HASSETT V. DAFOE

74 A.3D 202 (PA. SUPER. 2013) JUDGE BOWES • Allegations suggest that the drug, even when used as recommended and with appropriate warnings, was defective and unreasonably dangerous. Such averments do not necessarily implicate labeling, but assert absolute liability based on the sale of a defective or unreasonably dangerous product. • Generic Defendants can comply with federal law, which does not permit them to unilaterally alter a drug's design, and state law, which extends liability to a manufacturer of a defectively designed drug without regard to whether it may redesign its drug.

• The court in Bartlett expressly left open the issue of whether liability design defect claims would be pre-empted. It did not address, or reject, the argument Mr. Hassett asserts herein: that under the design or the warnings.

§ § 402A strict products 402A strict products liability, it is unnecessary for a plaintiff to demonstrate that a defendant should or could have altered

HASSETT V. DAFOE

74 A.3D 202 (PA. SUPER. 2013) JUDGE BOWES • • • • Federal labeling regulations pre-empt state law labeling and packaging requirements only to the extent that they are different from or in addition to those mandated by the federal statute. A proper pre-emption analysis is dependent upon a comparison of the federal statute or regulation and the particular state law applicable.

While federal labeling statutes may pre-empt state failure to warn claims, they do not pre-empt claims based upon the marketing of defective products, a lack of due care in testing, or a product's failure to conform to express and implied warranties, all of which are alleged herein.

The claims asserted herein implicate warranties arising from advertising and promotional materials that arguably do not fall within the definition of labeling under the Act.

HASSETT V. DAFOE

74 A.3D 202 (PA. SUPER. 2013) JUDGE BOWES • • • Allegations of false advertising and promotion are not failure to warn claims based on the label pre-empted by Mensing.

Complaint seeking disgorgement of profits from generic drug manufacturers stemming from deceptive practices, such as concealing the risks associated with the drug and misrepresenting its safety, and asserting claims of civil conspiracy based upon the concealment and withholding of information, was not preempted, under impossibility preemption, by federal law as a failure-to warn claim.

Only pre-Act failure-to-warn claims based solely on a label that was in conformity with the RLD label are pre-empted under Mensing and such failure to warn claims are preempted here.

IN RE REGLAN / METOCLOPRAMIDE LITIGATION

74 A.3D 221 (PA. SUPER. 2013) JUDGE BOWES • Consumers who were allegedly injured after ingesting the generic drug metoclopramide, sued seeking damages for personal injury based on failure of drug manufacturer, designated as successor reference listed drug (RLD) holder, to warn of drug's dangers. • Manufacturer failed to establish federal impossibility pre-emption as to consumer's failure-to-warn claim.

• Former generic drug manufacturer of metoclopramide failed to meet its burden of proof to establish impossibility pre-emption as to consumer's failure-to-warn tort claim by demonstrating that it was impossible to modify its label, under federal laws, and that it lacked ability to use “ changes being effected ” (CBE) process to modify its warnings label.

• This was true even though generic manufacturer had been designated by Federal Drug Administration (FDA) as successor reference listed drug (RLD) holder for the drug after original RLD holder withdrew the drug.

IN RE REGLAN / METOCLOPRAMIDE LITIGATION

74 A.3D 221 (PA. SUPER. 2013) JUDGE BOWES • Supreme Court decision in Mensing does not confer upon generic drug manufacturers blanket pre-emption of all state-law tort claims.

• Generic manufacturer maintains that despite its status as the RLD holder for liquid syrup metoclopramide, it remained a generic manufacturer of an ANDA-approved product, and that it had no ability to use the Changes Being Effected ( “ CBE ” ) process to modify its warnings label.

• Supreme Court excluded RLDs from its definition of generic drugs and used the designation “ name-brand ” and “ listed ” interchangeably.

• A generic manufacturer's inability to unilaterally change the warning label on its generic drug is the foundation for the Mensing holding.

IN RE REGLAN / METOCLOPRAMIDE LITIGATION

74 A.3D 221 (PA. SUPER. 2013) JUDGE BOWES • Resolution of the issue of whether impossibility pre-emption applies to Morton Grove hinges on whether that entity, as the RLD holder, had the ability under federal law to change or update its label. • The burden of proving the basis for the pre-emption defense rests with Morton Grove, and it has not established with the requisite certainty that it was impossible to modify its label.

Vaccines

WRIGHT V. AVENTIS PASTEUR, INC.

14 A.3D 850 (PA. SUPER. 2011) JUDGE MUNDY • Minor received vaccine containing preservative Thimerosal, a Hepatitis-B vaccine manufactured by Merck. The claim was that the preservative exposure caused neurological damage.

• Minor plaintiff ’ s claim was not covered under any of the bases listed on the Vaccine Table whereby compensation is provided by the National Childhood Vaccine Injury Act of 1986.

• Either defective warnings or defective manufacturing may serve as a basis for alleging that certain vaccines ’ side effects were avoidable.

WRIGHT V. AVENTIS PASTEUR, INC.

14 A.3D 850 (PA. SUPER. 2011) JUDGE MUNDY • Congress intended the courts to conduct case-by-case inquiries as to the nature of vaccine ’ s side effects. • § 300aa-22(b)(1) does not serve as an outright bar to any design defect claim. Rather, the statute requires courts to conduct a case-by-case inquiry in order to determine whether a particular vaccine's side effects were unavoidable. Therefore the trial court erred in granting summary judgment to the vaccine defendants.

BRUESEWITZ V. WYETH

131 S.CT. 1068 (2011) JUSTICE SCALIA • Preemption enacted in the National Childhood Vaccine Injury Act of 1986 bars state-law design-defect claims against vaccine manufacturers.

Mcare Coverage

KRAPF V. ST. LUKE

’

S HOSPITAL

4 A.3D 642 (PA. SUPER. 2010) GANTMAN, SHOGAN AND MUNDY, JJ.

• Estates of five patients brought wrongful death and survival actions against hospital after nurse formerly employed at hospital confessed to having killed those patients.

• Duty to inform patient or their family of really bad things that go on in hospitals, such as murdering nurse.

• Genuine issue of material fact existed as to the applicability of the fraudulent concealment doctrine, precluding summary judgment for hospital on limitations grounds

POLYCLINIC MEDICAL CENTER V. MEDICAL CARE AVAILABILITY

13 A.3D 561 (PA. CMWLTH. 2011) JUDGE PELLIGRINI • A patient in a psychiatric unit was assaulted by another patient using a wheel chair.

• No Mcare coverage available where patient injured at the hands of another patient. Claim was of improper supervision of patients, but the court said that this did not constitute patient care.

• •

YUSSEN, M.D. V. MEDICAL CARE AVAILABILITY

46 A.3D 685 (PA. 2012) JUSTICE SAYLOR A doctor sought coverage under Availability and the Reduction of Error (MCARE Fund), 40 P.S. §§ 1303.715(a).

§ 715(a) of the Medical Care MCARE Fund covers medical malpractice claims made more than four years after the claim was made but within the statute of limitations. • • The MCARE fund denied coverage, asserting that the claim was made on the date the writ was filed, which was less than four years from the date of the alleged malpractice. The Commonwealth Court, exercising original jurisdiction, agreed.

Pennsylvania Supreme Court reversed.

YUSSEN, M.D. V. MEDICAL CARE AVAILABILITY

46 A.3D 685 (PA. 2012) JUSTICE SAYLOR • “ Claim ” reporting.

and “ made ” -as used in the statute - are ambiguous; their meaning in an insurance setting contemplates notice and • Purpose of the MCARE fund statute is to create greater certainty in calculating reserves. • Requiring some notice to the insured is more consistent with the purpose of the statute.

TRANSFER OF MCARE FUNDS TO COMMONWEALTH

’

S GENERAL FUND

THE HOSPITAL & HEALTH SYSTEM ASSOCIATION OF PENNSYLVANIA V. THE COMMONWEALTH OF PENNSYLVANIA

2013 WL 5379488 (PA. SEPT. 26, 2013) • Supreme Court of PA held that plaintiffs had a vested due process interest in having existing monies in MCARE Fund used for MCARE purposes of satisfying judgments against health care providers.

• Court further held that it was a question of fact as to whether the transferred monies represented a surplus in the MCARE Fund and precluded summary relief on due process and tax uniformity claims.

THE PENNSYLVANIA MEDICAL SOCIETY V. THE DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA

39 A.3D 267 (PA. 2012) • • • PA Supreme Court held that abatement law gave the Secretary of the Budget the discretion, but not the obligation, to transfer monies into the MCARE Fund in an amount up to the total amount of abatements granted. Court further held that health care providers and associations representing them had no vested right in health funds held in Health Care Provider Retention Account.

TRANSFER OF MCARE FUNDS TO COMMONWEALTH

’

S GENERAL FUND

• • • Health care providers and their associations had standing to challenge the Commonwealth ’ s transfer of 100 million dollars from the MCARE fund to the General Fund of the Commonwealth. Hospital & Healthsystem Ass A.2d 392 (Pa. Cmwlth. 2010); see also Medical Soc. V. Dept. of Public Welfare, 994 A.2d 33 (Pa.Cmwlth. 2010). ’ n of Pa v. Com., 997 Providers had vested rights that could not be terminated through legislation. Id at 398. Judge Pellegrini dissents because the abatements have been paid, that the doctors received everything promised, and that the $800 million dollar transfer from the General Fund to the MCARE fund constitutes a windfall to the doctors. Medical Soc. V. Dept. of Public Welfare, 994 A.2d at 46.

MCARE ACT - 509

SAYLER V. SKUTCHES

40 A.3D 135 (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 for medical 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 for the 35% comparative negligence the award for future medical expenses over the five year period it 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 awarded by the jury.

SAYLER V. SKUTCHES

40 A.3D 135 (PA.SUPER. 2012) JUDGE PLATT, LAZARUS, OTT • The appeal process was long, as Defendants appealed all the way to the U.S. Supreme Court. • Plaintiff had no access to the jury award for ‘ future ’ medical expenses during appeal – which would have amounted to $165,750 at the time of death – and went without medical treatment to slow her breast cancer.

• 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.

SAYLER V. SKUTCHES

40 A.3D 135 (PA.SUPER. 2012) JUDGE PLATT, LAZARUS, OTT • The issue was 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 jury prematurely? ’ s five year award when the plaintiff died prior to that, terminating the award

SAYLER V. SKUTCHES

40 A.3D 135 (PA.SUPER. 2012) JUDGE PLATT, LAZARUS, OTT • The Superior Court 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. • Plaintiff filed a petition for allowance of appeal which was denied on October 5, 2012.

SAYLER V. SKUTCHES

40 A.3D 135 (PA.SUPER. 2012) JUDGE PLATT, LAZARUS, OTT • The Superior court heavily relied on analysis that award under the “ American Rule ” § 509 does not authorize additional attorney fees to support its conclusion that the attorney fees must diminish the award rather than add to the precluding recovery of attorney fees from the adverse party established exception.

” “ unless there is express statutory authorization, a clear agreement of the parties, or some other (citation omitted)

SAYLER V. SKUTCHES

40 A.3D 135 (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 this subsection.

” “ 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 (emphasis by the court) 40 P.S. 1303.509(b)(1).

SAYLER V. SKUTCHES

40 A.3D 135 (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.

SAYLER V. SKUTCHES

40 A.3D 135 (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?

100

SAYLER V. SKUTCHES

40 A.3D 135 (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.

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SAYLER V. SKUTCHES

40 A.3D 135 (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 noted that its conclusion was consistent with the declaration of policy accompanying the MCARE Act affordable health care premiums.

” “ to limit jury awards in medical malpractice suits in order to ensure • The Sayler decision suggests areas for future litigation.

102

NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY

SUPERIOR COURT NO. 2923 EDA 2012

PAJ Amicus •In the court below, Judge Bernstein found that he had calculated attorney’s fees properly. •Sayler vs. Skutches was distinguished.

•Total verdict $78,404,669.00

•How to apply

5009(b) of the MCARE Act to determine counsel fees.

103

NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY

SUPERIOR COURT NO. 2923 EDA 2012

• Future medical expenses reduced to present value is $29,793.338.00

• Counsel is entitled to one-third (1/3) of this pursuant to contingent fee agreement.

104

NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY

SUPERIOR COURT NO. 2923 EDA 2012 • Defendant’s position is that they are only obligated to purchase an annuity, exclusive of attorney’s fees, in the amount of $12,478,013.34. Defendant claims it is on this figure which plaintiff’s counsel’s fee should be calculated.

• The cost of a life insurance policy is exceptionally different from the present value of awarded medical payments as continually defined by the Supreme Court.

105

NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY

SUPERIOR COURT NO. 2923 EDA 2012 • Nothing in the MCARE Act mandates the purchase of an annuity.

• A defendant may create a self-directed funding plan with safeguard sufficient to be approved by the Court.

• Sayler v. Skutches does not apply because plaintiff had died and there were no future medical expenses to be paid.

• In Sayler, the Superior Court held that where the plaintiff died before judgment was entered, counsel fees could be determined on the basis of medical expenses already accrued.

• In Sayler, the actual medical cost for the care the plaintiff had received between verdict and death had been precisely determined at the time attorney’s fees were calculated.

• There were no future medical costs to be reduced to present value.

• The MCARE Act requires that attorney’s fees be calculated after all future medical expenses contained in the verdict are reduced to present value.

• Since there were no future medical expenses, of course they could not be the basis of an attorney’s fees.

106

NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY

SUPERIOR COURT NO. 2923 EDA 2012 • Damage calculation.

1. Present value of future medical expenses awarded by the jury is $29,793,338.00

2. Add damages awarded which do not require reduction to present value in the amount of $13,500,000.00

3. Add in delay damages of $2,515,901.00

4. Total awarded: $45,809,239.00

5. Plaintiff’s attorney’s fees for future medical portion of the recovery are $9,931,113.00

107

NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY

SUPERIOR COURT NO. 2923 EDA 2012 • The judge did not say who pays the attorney’s fees, whether it comes out of plaintiff’s verdict or whether defendant pays it.

• That issue has been briefed before the Superior Court.

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Present Sense Expert Testimony

109

MCLANE V. VALLEY MEDICAL FACILITIES

157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009) JUDGE WETTICK

RIGHT TO EXAMINE/IMPEACH DEFENDANT WHO WILL NOT TESTIFY AS EXPERT ABOUT OBSERVATION THAT OCCURRED AT TIME OF EVENT BY REFERENCE TO CURRENT OBSERVATION OR INTERPRETATION

•Case involved a failure to timely diagnose cervical cancer, by cytotechnologists who reviewed PAP smear slides.

•Stipulated that defendant cytotechnologists would not testify as experts at trial.

•At depositions, Plaintiffs intended to have cytotechnologists review areas on PAP smear slides (selected by counsel).

•Judge Wettick declined to allow questioning regarding what they currently saw on the PAP smear slides.

•Court held that witness who will not be offering expert testimony cannot be asked to make an after the fact evaluation of his or her work.

110

MCLANE V. VALLEY MEDICAL FACILITIES

157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009) JUDGE WETTICK

RATIONALE:

•Issue is “whether the care and skill exercised by the witness in reviewing Plaintiff’s PAP smear fell outside acceptable professional standards. “ • What this witness observes at deposition with the knowledge that Plaintiff was diagnosed with cancer, is not relevant. •Also prejudicial: jury will focus on defendant’s testimony now and not on expert’s testimony whether prior observations/conduct met the standard of care.

111

MCLANE V. VALLEY MEDICAL FACILITIES

157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009) JUDGE WETTICK • DISTINGUISHED Belan v. Ward, 152 Pitts. L. J. 282, 67 Pa. D. & C. 4 th 529 (Allegheny Co. C. P. 2004) • Belan holding: Physician must answer standard of care questions UNLESS prior to or at deposition physician placed on the record that he or she will not offer testimony regarding the standard of care. • FOLLOWED in Myers v. Carey, Civ. No. NO. 11-01166 (Lyc. Co. C. P. Oct. 11. 2012) – required filing of stipulation that defendant would not testify as expert.

• Also Caldwell v. Branton, Civ. No. 08-00,805 (Lyc. Co. C. P. (Sept. 4, 2009) (nonparty witness)

112

MCLANE V. VALLEY MEDICAL FACILITIES

157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009) JUDGE WETTICK

Argument Contra:

•Clearly what physician sees now is relevant •Differences in circumstances can be explained. •Prejudicial effect should be weighed at time of trial, not at discovery stage •No consideration of right to call and confront adverse party witness 42 Pa. C. S. § 5935 •Distinguish non party witness (or co defendant) cases. See Jistarri v. Nappi, 549 A.2d 210, 218 (Pa. Super. 1988); Dolan v. Fissell, 973 A. 2d 1009 (Pa. Super. 2009) •Rules provide for discovery of opinions. See Pa. R. Civ. Proc. 4003.1(c); comment to Rule 4003.5.

113

MCLANE V. VALLEY MEDICAL FACILITIES

157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009) JUDGE WETTICK There is no appellate authority on the issue.

•Older cases supporting proposition that a physician who is a defendant in a medical-malpractice action can be required to give expert testimony: •First National Bank & Trust Co. At Waynesboro v. E. R. Squibb & Son, 41 Pa. D. & C. 3d 52 (Dauphin Co. C.P. 1985); •Bolton v. Holy Spirit Hospital, 40 Pa. D. & C. 3d 372, 386-387 (Dauphin Co. C. P. 1984). •Makera v. Pequero, 50 Pa. D. & C. 3d 346 (Luzerne Co. C. P. 1988). •Decker v. Pohlidal 22 Pa. D. & C.2d 631 (Northampton Co. C. P. 1960)

114