Passarello v. Grumbine, M.D.
2011 Pa. Super 199
Decided: September 9, 2011
Superior Court holds that the “error in judgment rule” was abrogated in a prior ruling. Plaintiffs were entitled to a new trial because the court gave the error in judgment charge submitted by the defense. Because defense counsel vigorously argued the point, the appellate court could not conclude that this was only harmless error in the court below.
Background
Physician treated an infant for reflux. The child died and an autopsy established the cause of death as a viral infection of the heart. Plaintiffs sued alleging failure to properly diagnose. In its instructions to the jury, the court gave the defense’s proposed error of judgment charge and defense counsel argued that defense in closing. After the jury’s defense verdict, plaintiffs appealed, arguing that the 2009 Superior Court case Pringle v. Rappaport, 980 A.2d 159, disallowed the error in judgment rule as a defense in medical malpractice cases. Plaintiffs’ argued that this jury charge confused the jury by injecting an irrelevant subjective element -- the defendant physician’s state of mind -- to the determination of whether or not she met the requisite standard of care. Following the defense verdict (which came in prior to the Pringle decision) the case remained in pre-judgment litigation as the parties awaited disposition of Plaintiffs’ post trial motion, and judgment was entered by the trial court a year after Pringle’s publication.
Holding
Superior Court ruled that Pringle can and must be applied retroactively, thus abolishing the error of judgment rule in many cases, and plaintiffs were awarded a new trial. The court’s decision hinged on its reasoning that the error in judgment instruction invites a finding that a physician may avoid liability for negligent acts if he can simply prove that he did his best. In its discussion of whether the erroneous jury charge may have been simple harmless error not entitling plaintiffs to a new trial, the court found that defense counsel used the charge in closing argument not as a measure of whether her client met the standard of care, but rather as a measure of the physician’s professional character. The court found that such argument exploited the erroneous instruction and that the error was therefore not harmless.
Any questions regarding this case can be directed to Daniel L. Grill at (717) 237-7115 (dgrill@tthlaw.com).
Matharu v. Muir
2011 Pa. Super. 134
Decided: June 28, 2011
Superior Court affirms the denial of healthcare provider’s motion for summary judgment, regarding statute of limitations and physician-patient relationship.
Background
Wife plaintiff sought treatment with the defendants in 1998 for prenatal care for her second pregnancy. Blood tests revealed that mother was Rh-negative and father was Rh-positive. Mother did not receive an injection of RhoGAM at 21 weeks of gestation for the second pregnancy and did not receive an injection within 72 hours of the birth.
Following the birth, Dr. Muir told mother and father that no RhoGAM had been administered to the mother and that she had become sensitized during the third trimester. The discharge summary documented a conversation regarding the ramifications of Rh sensitization, including effects on an unborn fetus. It further indicated that mother and father stated they desired no more children. Patient was advised to seek early prenatal care for any future pregnancy.
Mother plaintiff became pregnant for a sixth time in 2005. It was agreed that no doctor/patient relationship was formed between mother and the defendants for this pregnancy. Defendant did not provide any care or treatment during the sixth pregnancy.
The sixth pregnancy proceeded without complication until November 2005 or 26 weeks gestation. Fetal blood work showed anemia so mother underwent intraperitoneal transfusion while undergoing an umbilical blood sampling. The child’s heart rate became non-reassuring, abruption was suspected, and an emergency C-section was performed. The child was delivered and transferred to another facility, where he died two days later.
Defendants filed respective motions for summary judgment alleging that the plaintiffs’ claim was barred by the two year statute of limitations, and lack of a physician patient relationship. The trial court denied the motions for summary judgment but did, in its order, certify the motions as involving a controlling question of law. Defendants subsequently filed a petition for permission to appeal the trial court’s interrogatory order, which the Superior Court granted. An appeal followed. The denial of the summary judgment motions was affirmed for the reasons discussed below.
Holding
The Superior Court held that the specific statute of limitations contained in the Medical Care Availability and Reduction of Error (MCARE) Act at 40 P.S. § 1303.513(a)(d) controlled wrongful death and survival actions involving alleged malpractice, and not the more general two year statute of limitations for negligence contained at 42 Pa.C.S.A § 5524. The child from the 2005 pregnancy died on November 12, 2005, Plaintiffs filed their claim by filing a writ of summons on April 25, 2007 and filed their complaint on June 26, 2007, all within two years of the child’s death. Accordingly, the complaint was not barred by the statute of limitations. Moreover, even if the more general statutory limitation was applied, it also provided no relief to the defendants. Defendants’ argued that because the parents were aware of the alleged negligent failure to provide RhoGAM in 1998, the claim should have been barred, as suit was not filed within two years from that date. But this argument was rejected as the Superior Court focused on the death of the infant as the trigger for filing of the action.
Defendants also argued that a physician/patient relationship did not exist between the defendants and the mother plaintiff surrounding the 2005 pregnancy. Based upon the record before it, the Superior Court held that the unborn children of the plaintiff mother and father were within a readily foreseeable third party beneficiary of the physician/patient relationship. The child born in 2005 was in a class of persons whose health/life was likely to be threatened by the defendants’ failure to administer RhoGAM to the mother in 1998. The Superior Court found social utility in imposing a duty upon defendants to protect against death or injuries to future children by timely administration of RhoGAM.
The effect of this holding is, under certain circumstances, a health care provider’s liability can extend several years into the future and beyond the traditionally recognized two year statute of limitations for negligence.
Any questions regarding this case can be directed to Hugh P. O'Neill at (717) 255-7629 (honeill@tthlaw.com).
Potts v. Step By Step, Inc.
2011 PA Super 150
Decided: July 22, 2011
Superior Court reversed and remanded the lower court’s order that granted a Motion for Judgment on the Pleadings in favor of a defendant residential facility. The facility had contended in the Motion that the plaintiff failed to allege facts to support a claim of “gross negligence or incompetence”, as required by the Mental Health and Mental Retardation Act (MHMRA).
Background
The plaintiff filed a Complaint alleging that staff members at a facility that provides residential care to individuals with mental retardation and disabilities failed to call a nurse who had seen the resident earlier in the day and who had requested that the staff call her if the resident began to vomit. It was further alleged that the nurse was not called when the resident developed vomiting and that the resident died as a result of this failure. The facility sought judgment on the pleadings because the resident was a qualifying individual under the MHMRA and because the MHMRA only authorizes a cause of action based upon “gross negligence or incompetence”.
Holding
The Superior Court agreed that the plaintiff must allege facts that demonstrate more than ordinary negligence. It then held that a jury could find that the failure of the staff at the facility to follow the clear directions of the nurse constituted “gross negligence”. It then further held that the facility could be responsible for its “incompetence”. Although it specifically declined to define “incompetence” as “ordinary negligence”, it indicated that “incompetence” could exist due to inadequate credentials or training of the staff. It did not explain why the applicable standard was “incompetence” instead of “gross incompetence”.
Any questions regarding this case can be directed to Shawn P. Phillips at (610) 332-7011 (sphillips@tthlaw.com).