Pennsylvania Case Summaries

Fitzpatrick v. Natter, et.al
2008 Pa Lexis 2266 (December 17, 2008)

Overview:  The Pennsylvania Supreme Court allows a patient’s spouse to establish the causation element of a lack of informed consent claim. 

To establish a claim for lack of informed consent in Pennsylvania, the claimant must prove: (1) the surgeon failed to provide a description of the surgical procedure and/or the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure, AND (2) receipt of such information would have been a substantial factor in the patient’s decision whether to undergo the procedure.  Expert testimony is required to establish the first element.  It should be noted that a surgeon may also be held liable for lack of informed consent if he/she  knowingly misrepresents his or her professional credentials, training or experience to the patient.

Dr.Natter referred Mrs. Fitzpatrick to Dr. Munz for surgery.  Mr. Fitzpatrick attended the appointments where Drs. Natter and Munz discussed the surgical options with his wife.  Mrs. Fitzpatrick did not testify at trial, even though she was living and even though there was no evidence that she was incompetent to testify. Mr. Fitzpatrick testified at trial that certain information about the procedure and its risks was not disclosed to his wife and that she would not have undergone the procedure if the risks had been fully disclosed.  He explained that the two of them jointly made medical decisions, and he would have advised her not to have the surgery if this information had been disclosed.  At trial, the jury found that Dr. Munz did not obtain Ms. Fitzpatrick’s informed consent to the surgical procedure and that this information would have been a substantial factor in her decision to undergo the procedure; Dr. Munz appealed.  The lack of informed consent claim against Dr. Natter was dismissed prior to verdict; because, generally, only a surgeon may be found liable for lack of informed consent.

Holding:  The Pennsylvania Supreme Court held that the testimony of the patient’s spouse, by itself, was sufficient for a jury to determine that information not disclosed prior to the patient’s surgical procedure would have been a substantial factor in the patient’s decision to undergo the procedure.  The case was remanded on another issue.  The Pennsylvania Supreme Court determined that the Fitzpatricks had failed to present the requisite evidence of risks of the proposed surgery and its alternatives and that this failure was due to the trial court’s preclusion of expert testimony proffered by counsel for the Fitzpatricks.  The Pennsylvania Superior Court was asked to address whether the trial court’s preclusion of this expert testimony was appropriate.

Any questions regarding this case can be directed to either Peter J. Curry, Esq. at (610) 332-7001 pcurry@tthlaw.com or Shawn P. Phillips (610) 332-7011 or sphillips@tthlaw.com.

Kerr v. Pennsylvania State Board of Dentistry
960 A.2d 427, 2008 Pa LEXIS 2048 (November 19, 2008)

Based upon evidence developed in a police search conducted under the authority of an allegedly invalid search warrant, State Board of Dentistry found multiple violations and took discipline on a dentist’s license. In this decision, the Supreme Court of Pennsylvania affirmed the Board decisions and rejected the defendant’s argument that the exclusionary rule associated with the 4th Amendment to the US Constitution would apply to this civil disciplinary proceeding.  The Court held that the 4th Amendment exclusionary rule generally does not apply in civil or administrative matters and thus, even if the search warrants had been issued improperly, exclusion of evidence seized pursuant to the warrants was not required in this civil proceeding.  The Court further held that the evidence suggested that the state police had been engaged in a criminal investigation when acting under the allegedly defective warrant and were specifically not acting as agents to enforce the Dental Law.  The state police are charged with enforcing criminal laws not the Dental Law, and therefore, excluding evidence from this disciplinary proceeding would not serve to deter state police misconduct in future criminal investigations.

Any questions regarding this case can be directed to either Evan Black, Esq. at (717) 441-7051 or eblack@tthlaw.com or Marc Moyer (717) 441-3960 or mmoyer@tthlaw.com.

Cooper v. Frankford Hospital, et. al.
960 A.2d 134  Pa Super  (October 20, 2008)

Overview:  Plaintiff filed this malpractice action against healthcare defendants on behalf of the estate of her husband, an anesthesiologist who had privileges at the defendant hospital.  Defendants approached Dr. Cooper regarding his taking or administering to himself the narcotic/anesthetic Fentanyl.  He was approached without any support persons present or available and directed to take a urine test.  According to the Complaint, plaintiff’s decedent committed suicide in his automobile two days after being approached by his supervisors.  Defendants filed preliminary objections in the nature of demurrer to all claims asserted in plaintiff’s Complaint.  The preliminary objections were sustained.

Plaintiff raised three issues on appeal, one regarding an application for pre-Complaint discovery.

To obtain pre-Complaint discovery a litigant should be required to demonstrate, in good faith, probable cause that the information sought is material and necessary to the filing of the Complaint in a pending action.  Plaintiff should describe with reasonable detail the material sought and state with particularity probable cause for believing the information will materially advance his pleading, as well as averring but for the discovery request, he will be unable to formulate a legally sufficient pleading.  Under no circumstance should a plaintiff be permitted to embark on a fishing expedition.  McNeill v. Jordan, 894 A.2d 1260 -69 (Pa. 2006).

In this case, the Court held that merely identifying the information sought in discovery and labelling it as material and necessary to draft a Complaint, did not satisfy the probable cause requirement that the evidence would support a cognizable cause of action.  The Superior Court’s conclusion was in large part a result of the recognition that generally suicide has not been recognized as legitimate basis for recovery in wrongful death cases.  This is so because suicide constitutes an independent intervening act so extraordinary as to not have been reasonably foreseeable by the original tortfeasor.  McPeake v. Cannon, 553 A.2d 438 (Pa. Super 1989).

It is conceivable that in a more traditional malpractice case the result would have been different.  However, the suicide presented a large initial hurdle to establish a viable cause of action under Pennsylvania law.  In conclusion, the Cooper case illustrates the necessity of a plaintiff seeking pre-Complaint discovery to not only establish that the material sought is necessary to draft a Complaint, but also that the evidence would support a cognizable cause of action.

Any questions regarding this case can be directed to either Sarah W. Arosell, Esq. at (717) 255-7231 or sarosell@tthlaw.com or Hugh O’Neill (717) 255-7629 or honeill@tthlaw.com.

Yi v. State Board of Veterinary Medicine
2008 Pa. Commw. LEXIS 573 (November 19, 2008)

While this case involved disciplinary action on the license of a veterinarian, the opinion has applicability to disciplinary actions by other Pennsylvania licensure boards including medical, dental, and allied health professional boards.

The State Board of Veterinary Medicine revoked the defendant’s license following an administrative hearing in which the prosecution’s own expert was “unhelpful” on several issues, forcing the board to draw upon the knowledge and expertise of its professional members to make findings relevant to malpractice. 

The Court reversed the board, finding that substantial evidence of malpractice had not been developed on the record, and the Board’s reliance upon evidence not of record deprived the defendant of his constitutional rights to prepare a defense to the administrative agency’s enforcement action.  The Court stated that an agency may indeed use its expertise to evaluate evidence, but the use of such expertise is limited to drawing inferences from the facts of record.  The Court seemed to find egregious the board’s reliance upon internet sources and veterinary treatises during its deliberations and in its opinion, despite never attempting to introduce such evidence at the hearing nor allowing the defendant to confront such evidence.

The Court’s ruling that an agency cannot use the specialized knowledge of its administrators as a substitute for evidence is a principle that should be useful in practice before all 26 licensure boards.

Any questions regarding this case can be directed to either Art Hoffman, Esq. at (717)441-7069 or ahoffman@tthlaw.com or Daniel Grill, Esq. (717) 237-7115 or dgrill@tthlaw.com.

Cope, M.D. v. Insurance Commissioner
2008 Pa. Commw. LEXIS 384,955 A.2d 1043
(April 18, 2008)

This case involves the Mcare Fund and its statutory obligations under Section 715 of the Mcare Act to provide defense and first-dollar indemnity insurance coverage.  Section 715 provides primary coverage in some instances, where a claim is made more than four (4) years after the medical care was provided to the patient.  The Commonwealth Court reviewed this case on Petition of the physician from the Insurance Commissioner’s decision affirming the Insurance Department (Mcare).  Section 715 contains a requirement that the healthcare provider must put the Mcare Fund on notice within 180 days of the provider’s first notice of the claim.  Here, notice was not made within 180 days, but, a Complaint was filed about 19 months later, at which time the Mcare Fund was finally put on notice. 

The doctor argued that the bare Writ of Summons should not constitute “notice of claim” under Section 715 because it does not contain sufficient information for either the healthcare practitioner or the Mcare Fund to determine whether Section 715 applies to the claim.  The Commonwealth Court agreed with the physician’s position that in order to know whether the claim is for medical professional liability and whether it was filed more than 4 years after the tort occurred, more information would be required than that supplied by the Writ of Summons.  As further rationale for its decision, the Court found that the Mcare Fund’s own procedures show that a simple Writ of Summons provides insufficient information for it to determine 715 eligibility and that without such information the claim notices would be simply returned to the requesting healthcare provider.  Accordingly, the Insurance Commissioner’s decision was reversed in favor of the plaintiff physician, and the Court held that the 180 day reporting period under Section 715 does not begin to run until the healthcare provider received notice that a claim asserted against him is eligible for Section 715 coverage.  By itself, a standard Writ of Summons does not provide that information.

Please contact Paul Walker at (717) 441-7061 or pwalker@tthlaw.com and Daniel Grill at (717) 237-7115 or dgrill@tthlaw.com