TIP TO HEALTHCARE PRACTITIONERS
FROM THE PROFESSIONAL LICENSING GROUP
From time to time physicians and allied health professionals are requested to meet in person or over the telephone with investigators from the Bureau of Professional and Occupational Affairs. These investigational meetings are often preludes to full-scale licensure investigations and administrative procedures which could result in sanctions, including license revocation.
If a healthcare practitioner is asked to give an interview, or otherwise meet with BPOA investigation staff, it is strongly recommended that you do so only in the presence of your own counsel. A call should also be made to the professional liability insurer, because some policies contain limited coverage for legal expenses associated with such administrative licensure proceedings.
Thomas, Thomas & Hafer LLP can provide additional information upon request.
RECENT SIGNIFICANT COURT DECISIONS
Ferris v. Harkins
2007 Pa.Super 384
December 17, 2007
Overview: Defendant Dr. appealed from Orders from the Luzerne County Court of Common Pleas, vacating an award for zero damages and granting the Plaintiff’s Motion for Judgment, notwithstanding the verdict, and awarding $1 million in compensatory and punitive damages.
The trial court found the evidence was indisputable that Defendant Dr. was a factual cause of harm to the Plaintiff, that damages were suffered and the Plaintiff was due punitive damages under the circumstances.
The Superior Court reversed and remanded with direction to reinstate the verdict. In the appeal, Plaintiff took the position that unrebutted testimony from the Plaintiff’s expert – and testimony from Plaintiff herself – supported JNOV on damages, because the Defendant failed to rebut the testimony. But the Court agreed with the defense position that the Defendant, as the verdict winner, was entitled to favorable inferences related to the evidence presented at trial. The Court went on to say that the jury heard testimony from the Plaintiff’s expert (and Plaintiff) and still found the Defendant Dr. was not the cause of any harm to the Plaintiff.
The Court repeated a long-held maxim: “indeed, the jury can believe all, part or none of the testimony presented.”
Defendants were represented by Lamb McErlane P.C., Cipriani & Werner P.C. and White & Williams, LLP. Plaintiff was represented by Timothy Lenahan of Lenahan & Dempsey, and filed a request for reargument on December 31, 2007.
Any questions regarding this case can be directed to James J. Dodd-o at (610) 332-7000 or jdodd-o@tthlaw.com and/or Shawn P. Phillips at (610) 332-7011 or sphillips@tthlaw.com.
Vicari v. Spiegel
2007 Pa. Super 316
October 19, 2007
Overview: Non-suit in favor of the defense was granted at trial, in part because the trial court struck the testimony of an expert witness who did not use the phrase “reasonable degree of medical certainty” in describing the quality of his opinions. The court found that in context – including testimony that the decedent “absolutely” should have been referred to a specialist – the opinion rose to the required degree to certainty. The court also held that, although the defendants were an otolaryngologist and radiation oncologist, a medical oncologist was qualified under the Mcare Act to offer opinions on the issue of whether the defendants should have referred the decedent to a medical oncologist for consideration of chemotherapy.
Any questions regarding this case can be directed to Sarah W. Arosell at (717) 255-7231 or sarosell@tthlaw.com and/or Corey J. Adamson at (717) 255-7639 or cadamson@tthlaw.com.
Bourne v. Temple Univ. Hosp.
2007 Pa. Super 231
August 2, 2007
Overview: Plaintiffs filed a timely Motion to Extend the 60-day period in which to file a Certificate of Merit. In fact, the Motion to Extend was filed 48 days after filing of a Complaint; in other words, 12 days prior to expiration of the 60 day period. The court denied the Motion and the Defendant filed a Praecipe for Entry of Judgment of Non-Pros the following day. Later that same day, Plaintiff filed Certificates of Merit.
Superior Court held that Pa R.C.P. 1042.3(d), which provides for the Motion to Extend, tolls the 60 day period. Therefore, the Certificate of Merit would have been due on the 12th day after the Trial Court denied the Motion to Extend Time and, thus, the Certificate of Merit filed the day after the denial was timely.
Any questions regarding this case can be directed to Evan Black at (717) 441-7051 or eblack@tthlaw.com and/or Carrie E. Smyth at (717) 441-7068 or csmyth@tthlaw.com.