Cohen v. Furin
2008 Pa Super 52
March 31, 2008

Overview:
A baby died shortly after his birth in Montgomery County. The parents brought suit in Philadelphia County and argued that venue was proper in Philadelphia for two reasons: (1) social service providers in Philadelphia referred plaintiff mother to midwives instead of a physician for care of a high risk pregnancy; and (2) when plaintiff first went into labor she placed a phone call from Philadelphia to a midwife in Philadelphia who advised the plaintiffs to cancel an ambulance and to wait before going to the hospital in Montgomery County.

The court found that neither the allegedly negligent referral nor the allegedly negligent telephone communication constituted “furnishing healthcare services” to establish venue pursuant to 42 Pa C.S.A. §5101.1.

The decision is consistent with Pa.R.C.P. 1006 which provides that a medical professional liability action may be brought against the healthcare provider for medical professional liability claims only in a County in which the cause of action arose, and the cause of action is deemed to have arisen where healthcare services are furnished. Here, no medical care was furnished by the Philadelphia-based defendants. Though they may have negligently made a referral to a midwife rather than a physician, the court held that this was not tantamount to “furnishing healthcare services”.

Any questions regarding this case can be directed to Peter J. Curry at (610) 332-7001 or pcurry@tthlaw.com and/or Hugh P. O’Neill at (717) 255-7629 or honeill@tthlaw.com

Griffin v. Univ of Pitt, M.C.
2008 Pa. Super 104
May 19, 2008

Overview:
Plaintiff underwent an exploratory laparotomy for a possible intestinal mass. Upon awaking she experienced shoulder pain and was diagnosed with a shoulder fracture which required surgical repair and three additional surgeries including shoulder replacement. The jury returned a verdict of nearly $2.3 million based on the plaintiff expert’s testimony that he was 51 percent certain that the injury was caused by forcible restraint during the operation, although he admitted a 49 percent certainty that the injury was caused by a grand mal seizure. The court found that although the plaintiff expert indeed used the so called “magic words” of “reasonable medical certainty” in concluding that defendants’ negligence was responsible for the injury, cross-examination revealed the expert’s misunderstanding of what is legally required to render such an opinion. The court dissected the expert’s testimony at some length and pointed out that the expert’s written report actually stated that the most likely cause of the shoulder fracture was a seizure. The court also found important that this expert stated that there was actually minimal evidence to support either causation theory. The court reversed the judgment and remanded the case to the trial court for entry of JNOV in favor of the defendant. It concluded that the expert’s testimony as a whole did not equate to an opinion to a reasonable degree of medical certainty that negligent forcible restraint was the cause of the shoulder injuries.

The court also addressed the res ipsa loquitor causation theory which was also allowed at trial. The opinion quoted from the Restatement (second) of Torts § 328D which states “if there is any other cause to which with equal fairness the injury may be attributed … an inference of negligence will not be permitted to be drawn against the defendant.” Given the plaintiff expert’s testimony that there was a 51 percent chance of one cause and a 49 percent chance of the other, the plaintiff clearly could not sufficiently eliminate a non-negligent potential cause of injury and thus the res ipsa loquitor theory should not have been permitted by the trial court.

Any questions regarding this case can be directed to Daniel L. Grill at (717) 237-7115 or dgrill@tthlaw.com and/or Thomas F. Merrick at (412) 697-7403 or tmerrick@tthlaw.com