Background:     A medical malpractice death claim alleging untimely diagnosis of cancer was settled in part by way of a joint tortfeasor release of one of the physicians, which released all claims as to all parties with the specific exception of a second physician. Released parties included the employers of the second physician. That physician then filed a motion for summary judgment based on common law cases governing general releases, including the rule requiring release of a principal when its agent has been released. The Common Pleas Court of Beaver County granted the motion for summary judgment, but the Superior Court had reversed that decision. The Supreme Court accepted review to decide, as an issue of first impression, whether the common law rule requiring release of a principal upon release of an agent applies in the reverse. In other words, did the release of the employer – the principal – require the release of the primarily-liable party, the individual physician?

 

Holding:     The Pennsylvania Supreme Court affirmed the Order of the Superior Court in favor of the Plaintiff, and ruled that the litigation would continue against the second physician who had not been specifically released. The Court found it important that the settling parties specifically carved out the claims against the second physician, and stated that parties to a settlement should be given broad latitude to accomplish their express intentions. Here, the express intention was for Plaintiff’s claim against the second doctor to proceed. The Court opinion discusses the leading cases standing for the proposition that the release of an agent operates to release the principal from vicarious liability claims, and distinguishes those prior cases holding that release of an agent follows as a matter of law from release of a principal. The Court found those cases to involve simple fact patterns involving a single principal, a single agent, and a single event. Whereas, the medical malpractice case at issue involved multiple parties and a complex factual scenario involving potential separate actions for which liability could be imposed.

An obstetrics and gynecology case proceeded to verdict resulting in an award of over $6 million for each of two twins who were determined to have been damaged in utero as a result of the defendant’s malpractice. The case, having been brought more than four years after the alleged negligence, was defended solely by the Mcare Fund without participation of the underlying primary insurer. Following the verdict an agreement was reached providing that the Mcare Fund would make a single $1 million payment plus delay damages and post-judgment interest. The parties agreed to litigate the issue of whether the Mcare Fund is required to pay a second million dollars (for a second “occurrence”) as well as unpaid delay damages and post-judgment interest on the verdict.

 

In determining the Fund’s liability for one or two occurrences, the court held the failure of the physician to perform amniocentesis constituted a single occurrence, and thus the Mcare Fund received summary judgment on that issue.

 

Resolution of delay damages and post judgment interest issues was more complicated however. The Fund argued that because it had now been established that the case only involved one occurrence and because the Mcare Fund paid its $1 million dollar per occurrence limits plus delay damages and post-judgment interest on the $1 million dollars there was no real issue. But the court disagreed. 

 

The court dissected § 714(h) of the Mcare Act, finding the section’s language to refer to the Mcare Fund’s liability to a plaintiff who prevailed rather than to the defendant healthcare provider who was personally liable for delay damages and post judgment interest. In this case, while the mother of the babies was the plaintiff in the underlying medical malpractice case, the doctor had assigned the mother the right to seek indemnity from the Mcare Fund for unpaid delay damages and post-judgment interest. Because the mother did not come into court as the prevailing plaintiff, but rather as the defendant on assignment, the court held that § 714(h) does not prevent the mother from seeking indemnity from the Mcare Fund under the common law, that is, for the Fund’s proportionate share of delay damages and post-judgment interest. The court went on to note that no apportionment was necessary because there was no underlying insurer involved in defending the case or in negotiations. The court therefore denied the Mcare Fund’s summary judgment motion seeking an allocation of liability for delay damages and post-judgment interest.

 

If you have any questions, or wish to discuss this case, please contact Sarah W. Arosell at (717) 255-7231 or sarosell@tthlaw.com.

 

 

 

 

 

At trial, the defense was granted a compulsory non-suit after the trial court refused to permit a nursing expert to testify on the issue of medical causation, namely the cause of the plaintiff’s bed sores. The Superior Court had reversed the non-suit, holding that the nursing expert was competent to provide expert testimony on causation. The Supreme Court opinion discusses at length its prior decision in Flanagan v. Labe, 547 Pa. 254 (1997) in which it was held that a nursing expert was statutorily precluded from rendering a medical opinion on causation, under the Professional Nursing Law.

 

The Supreme Court affirmed the Superior Court decision and concluded that its prior precedent of Flanagan is flawed and must be overturned, and that a properly qualified nurse should be able to give expert opinion testimony regarding medical causation in certain instances. The Supreme Court remanded the case with instructions that the trial court should analyze expert witness competency under the Mcare Act among other things.

 

Recently, the parties’ Joint Petition for Reargument was granted in order to address the continued viability of the Flanagan v. Labe decision. Oral argument is expected in December 2009.

 

If you have any questions, or wish to discuss this case, please contact Peter Curry at (610) 332-7001 or pcurry@tthlaw.com.

 

Holding:  Where the experts do not have sufficient qualification to state that it is commonly accepted that the injury in question could not have occurred but for negligence, the court’s decision not to instruct the jury with a conditional res ipsa loquitur charge was appropriate.

 

Background:  During a radiofrequency procedure designed to heat and shrink a bulging disc, a doctor treated the nerve root. Testimony differed regarding the plaintiff’s recovery from the initial procedure, but it is undisputed that a few days later, the plaintiff exhibited a foot drop. The cause was ultimately determined to be a dead nerve root, which the plaintiff claimed must have been caused by the doctor’s negligence. The doctor’s expert testified that there was a possibility that the plaintiff had a “sick nerve” that was irritated by the procedure and died not as a result of negligence, but due to a worsening condition. All experts agreed that, if the doctor had burned the nerve root, such an act would be negligent. The jury found in favor of the doctor. On appeal, the Appellate Division affirmed, but a dissenting judge opined that the conditional res ipsa charge should have been explained to the jury. The Supreme Court affirmed, finding that the trial court appropriately chose not to explain to the jury the Buckelew (87 N.J. 512 (1981)) application of res ipsa to medical malpractice actions as an alternative means of finding the doctor acted negligently, as there was insufficient foundation for such a charge based on the doctors’ experience and the “sick root” theory.

 

If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com.

 

Hyrcza v. West Penn Allegheny Health System, Inc., 2009 Pa. Super 119, (July 1, 2009)

 

Background:  An $8.6 million dollar verdict against an attending physician and practice group was affirmed by the Superior Court. Decedent underwent hip replacement surgery and was admitted to the hospital rehabilitation unit. The hospital and several physicians settled before trial and were not identified on the verdict slip. Plaintiff asserted that the attending physician was responsible for coordinating decedent’s care, should have recognized signs of gastrointestinal bleeding and discontinued medication known to cause bleeding. Claims of vicarious liability and corporate negligence were asserted against the practice group.

 

Holding:  The attending physician and practice group appealed, raising several issues frequently encountered in malpractice litigation. The Superior Court rejected the argument that the evidence was sufficient for settling defendants to remain on the verdict slip for the purposes of apportioning liability, noting that there is no absolute right and a prima facia case must be made at trial. This case also continues the trend of permitting expert testimony where the witness is familiar with the standard of care even if not practicing in the same specialty or with the same certifications. Limited use of learned treatises was affirmed where the substance of the text was basic, undisputed medical information.  

 

Importantly, the practice group’s challenge to a corporate negligence charge was rejected. The evidence indicated that the group was made up of many specialties, ran the rehabilitation unit and was responsible for the coordination and management of all medical care and therapies for the patients. The Thompson v. Nason Hospital duties can be imposed on medical professional groups based on this holding.   

 

Any questions regarding this case can be directed to Kathy Williams at 610-332-7029 or kwilliams@tthlaw.com.

 

Thierfelder v. Wolfert, M.D., 2009 Pa.Super 92 (May 19, 2009).

 

This 6 to 3 decision reversed a Montgomery County decision which had granted the defendant’s preliminary objections and dismissed the case, finding a lack of duty running from the doctor to his patient (and her husband) with whom he had an admitted consensual sexual affair. The trial court had relied upon a 2004 case, Long v. Ostroff, 854 A.2d 524, which held that a general practitioner’s duty of care does not prohibit an extramarital affair with a patient’s spouse. The 3-Judge dissent in Thierfelder concluded similarly that while the doctor’s actions were unethical, they did not constitute malpractice because the sex did not constitute the rendering of a “medical skill associated with specialized training”. But the key to this case surviving preliminary objections appears to be allegation that this general practitioner was treating the patient for emotional problems. The majority held that when a physician is treating psychological problems, if a sexual relationship causes such problems to worsen, a cause of action is established.

If you have any questions, or wish to discuss this case, please contact Daniel L. Grill at (717) 237-7115 or dgrill@tthlaw.com.

 

The Pennsylvania Supreme Court holds that the determination of whether the statute of limitations is tolled by the discovery rule, for this particular medical malpractice claim, involves questions of fact for the jury to resolve.

 

Background: Plaintiff/appellant had two hand and wrist surgeries performed by Physician/appellee. Following the second procedure, she experienced continuous, excruciating pain, hand contractures, an inwardly bent below and raised shoulder. She sought treatment from appellant and another orthopedic surgeon for over fourteen months. After two years without a definitive explanation from either physician, a third concluded that her radial nerve was lacerated. Plaintiff/appellant alleged Physician/appellee negligently lacerated her nerve during surgery filing suit more than two years after the surgery. The common pleas court granted summary judgment finding that Plaintiff knew or should have known she was injured by the conduct of another and there was no basis to toll the statute of limitations with the discovery rule. The Superior Court affirmed in a divided memorandum, finding that lack of knowledge as to the nature of her injury did not toll the statute since it was clear she was aware of an injury and a definitive diagnosis was not essential to commence the limitations period.

 

Holding: The Supreme Court allowed a limited appeal to consider the application of the statute of limitations in this medical malpractice action in light of prior holdings of Fine v. Checcio, 870 A.2d 850 (Pa. 2005) and Caro v. Glah, 867 A.2d 531 (Pa. Super. 2004). The Court held that the evidence suggested Plaintiff had made efforts to determine the cause of her injuries and the physicians were unable to pinpoint her specific injury or the cause. Due to this confusion, a question of fact existed as to the Plaintiff’s awareness of the injury and its cause. This is a question for the jury unless reasonable minds could not differ on the subject. Courts may still grant summary judgment when the facts are clear. In this case, Plaintiff’s evidence presented a question of fact. As stated in Fine, the party relying on the discovery rule bears the burden of proof. A plaintiff must demonstrate reasonable diligence to determine the injury and cause. The issue of plaintiff’s knowledge and diligence must be resolved by the jury if there is any question. The Superior Court was reversed and the case remanded for further proceedings.

If you have any questions, or wish to discuss this case, please contact Hugh P. O’Neill, III

at (717) 255-7629 or honeill@tthlaw.com.

 

 

This case considers the Mcare Act’s same sub-specialty requirement pertaining specifically to the admissibility of expert testimony by a radiological oncologist to establish the standard of care in a malpractice case against a urologist. The Supreme Court affirmed the trial court and Superior Court opinions allowing the expert to so testify because he had significant background in the same sub-speciality and was found to be qualified under the Mcare Act. The Court was unanimous in this result, but was equally divided in its reasoning and issued separate opinions each having 3 votes. The opinion announcing the judgment of the Court was written by Justice Saylor, joined by Justices Eakin and Todd, holding that the Motions in Limine and trial record did not fully develop Mcare Section 512 objections sufficient to disqualify the expert testimony. The concurring opinion, written by Justice Greenspan, joined by Justices Castille and Baer, concluded that the record was fully developed and that the expert simply had the sufficient background and credentials to offer standard of care opinions even though he was not, specifically, a urologist.

If you have any questions, or wish to discuss this case, please contact Evan Black at (717) 441-7051 or eblack@tthlaw.com.