Transcript 8th Annual Medical Malpractice Seminar

8th
Annual Medical Malpractice
Seminar
Sofitel Hotel, Philadelphia
November 19, 2013
9:00 a.m. – 3:45 p.m.
Presented by: Clifford A. Rieders, Esq.
Rieders, Travis, Humphrey, Harris Waters,
Waffenschmidt & Dohrmann
161 West Third Street
Williamsport, PA 17701
Phone: 570-323-8711
Fax: 570-567-1025
Email: [email protected]
www.riederstravis.com
MCARE Act-S.O.L
2
MATHARU V. MUIR
29 A.3D 375 (PA. SUPER. 2011)
JUDGE MUSMANNO
• Parents of deceased infant brought wrongful death and survival actions against
clinics involved in care of Rh-negative mother during pregnancy.
• At issue is § 513 of the Mcare Act.
• The specific statue of repose set forth at § 513(d) of the Mcare Act controls
over the general statutory language of 42 Pa.C.S.A. § 5524 governing statute
of limitations for wrongful death and survival actions, and affirmed the trial
court decision.
• Pursuant to § 513 plaintiff is required to commence both wrongful death and
survival action within two (2) years after the date of death of the child.
Plaintiffs commenced their wrongful death/survival action by writ of
summons within two (2) years of child’s death.
• Previously survival actions ran two (2) years from the date of the harm, not
necessarily two years from the date of death. The child suffered an injury
either at his birth or upon his death (two days later). Plaintiffs commenced
their survival cause of action well within the two years of the child’s injury.
3
MATHARU V. MUIR
29 A.3D 375 (PA. SUPER. 2011)
JUDGE MUSMANNO
• The evidence viewed in the light most favorable to plaintiffs
reflects that the child was in a class of persons whose health/life
was likely to be threatened by Defendants’ failure to administer
RhoGAM to mother in 1998.
• It was reasonably foreseeable that Defendants’ failure to
administer RhoGAM to mother in 1998 could injure her future
unborn children.
• The purpose of administering RhoGAM is to protect the future
unborn children of mother and father. Under these
circumstances, there is a duty owed by Defendants to the child.
• Courts have adopted a five-factor test as to whether to impose a
duty.
4
OSBORNE V. LEWIS
59 A.3D 1109 (PA. SUPER 2012)
JUDGE OLSON
• LASIK surgery performed June 1, 2000. August 2004, patient complained of
decreased vision which was confirmed. After seeing doctors and specialists,
patient was told that the LASIK surgery caused his vision loss.
• Patient filed malpractice claim on July 24, 2007.
• Patient’s medical malpractice action was subject to seven year statute of
repose in the MCARE Act where the surgery took place prior to MCARE’s
adoption and the injury manifested itself after the adoption of MCARE.
• The court further held that the seven year statute of repose could not be tolled
by the doctrine of fraudulent concealment because the doctrine of fraudulent
concealment only applied to MCARE’s two year statute of repose applicable
to wrongful death and survival actions.
• Plaintiff’s claims against Appellants are barred by the MCARE Act's statute of
repose.
5
OSBORNE V. LEWIS
59 A.3D 1109 (PA. SUPER 2012)
JUDGE OLSON
• The statute mandates that no medical malpractice claim “may be commenced
seven years from the date of the alleged tort or breach of contract.” 40 P.S. §
1303.513
• It was undisputed that the tort or breach of contract occurred on the date of
surgery, June 1, 2000, which was more than seven years prior to the filing of
the claim. Fraudulent concealment does not apply to toll the statute of repose,
40 P.S. § 1303.513.
• Mcare Act specifially provides for the doctrine of fraudulent concealment to
apply in cases of wrongful death or survival actions.
• The absence of such an express provision for other circumstances evidences
legislative intent that the fraudulent concealment exception does not apply to
claims addressed by subsection (a).
6
YUSSEN V. MEDICAL CARE AVAILABILITY AND REDUCTION
OF ERROR FUND
46 A.3D 685 (PA. 2012)
• Physician submitted a claim to the MCARE Fund, requesting indemnity and
defense coverage for a medical malpractice claim brought against him. The
MCARE Fund denied coverage because the claim was made more than four
years after the alleged malpractice.
• For the purposes of § 513 of the MCARE Act, if a claim against a health care
provider is made more than four years after the breach of contract or tort
occurred, the claim should be defended by the Department of Insurance.
• The mere filing of a praecipe for a writ of summons does not suffice to make a
claim for the purpose of the statute of limitations, at least in the absence of a
demand communicated to those from whom damages are sought.
7
Nursing Homes
8
SCAMPONE V. GRANE HEALTHCARE CO.
11 A.3D 967 (PA. SUPER. 2010)
JUDGE BOWES
• Nursing home resident brought cause of action for malpractice, alleging that
dehydration and malnutrition caused resident’s fatal heart attack.
• Court held that evidence was sufficient to find that nursing home could be
liable for resident’s death under a theory of corporate negligence.
• There is sufficient evidence of misconduct to warrant submission of the issue
of punitive damages to the jury.
9
SCAMPONE V. GRANE HEALTHCARE CO.
11 A.3D 967 (PA. SUPER. 2010)
JUDGE BOWES
• Nursing home is analogous to a hospital in the level of its
involvement in a patient’s overall health care.
• Nursing home provides comprehensive and continual physical
care for its patients.
• Nursing home is akin to a hospital rather than a physician’s
office.
• The nursing home was understaffed, the nurses inadequate and
state surveys showed that there were many complaints.
10
SCAMPONE V. HIGHLAND PARK CARE CENTER
11 A.3D 967 (PA. SUPER. 2010)
JUDGE BOWES
• Estate of nursing home resident who suffered a fatal heart attack due to
malnutrition and dehydration brought action against nursing home facility and
management company.
• Nursing home facility and management company were subject to potential
direct liability for corporate negligence, as well as vicarious liability for
resident’s death. Nursing home and management company are not immune
or exempt from corporate liability for negligence.
• Nursing home and management company were subject to potential direct
liability for resident’s death where the requisite resident-agency relationship
exists to establish that the agency owes the resident a duty of care.
11
SCAMPONE V. HIGHLAND PARK CARE CENTER
11 A.3D 967 (PA. SUPER. 2010)
JUDGE BOWES
• Staff failed to conduct ordered DUI testing, to ensure that the resident was
consuming sufficient fluids and food, and falsified records to show that
medications or treatment were provided when it was not.
• The administrators temporarily increased staff for state inspections.
• There is no persuasive argument for the proposition that the availability of a
vicarious liability claim is a substitute for recognizing a corporation's direct and
non-delegable duty or duties of care to a plaintiff.
12
SCAMPONE V. HIGHLAND PARK CARE CENTER
11 A.3D 967 (PA. SUPER. 2010)
JUDGE BOWES
•
•
•
•
Superior Court remanded for new trial; Pa Supreme Court affirmed, remanded and held
“that a nursing home and affiliated entities are subject to potential direct liability for
negligence, where the requisite resident-entity relationship exists to establish that the
entity owes the resident a duty of care[.]”
“[A] corporation may owe duties of care directly to a plaintiff separate from those of its
individual agents, such as duties to maintain safe facilities, and to hire and oversee
competent staff.”
That a corporation acts through agents does not preclude “hailing a corporation into
court on direct liability tort claims.”
There is no immunity or exemption from direct liability, which is an exception to “the
general rule that an entity must meet the obligations it incurs in functioning.” Court
declined invitation to recognize a judicial immunity for nursing homes.
13
SCAMPONE V. HIGHLAND PARK CARE CENTER
11 A.3D 967 (PA. SUPER. 2010)
JUDGE BOWES
• Rejected argument that Thompson created a corporate cause of action only
against hospitals.
• Inquiry is not whether an entity is similar to a hospital.
• “The relevant question is whether the legal principles explicated in Thompson,
or elsewhere in our decisional law, apply to describe appellants’ legal duty or
obligations to Ms. Scampone, given the considerations which pertain.” 57
A.3d 605.
• In essence the question is whether there was sufficient evidence of a
relationship with the entities to establish that duties of care exist under the
Restatement Section 323 or the Althaus factors. Case remanded for that
determination.
14
HALL V. EPISCOPAL LONG TERM CARE
54 A.3D 381 (PA. SUPER 2012)
JUDGE JACKSON
•
Estate of nursing home resident brought negligence action against nursing home
facility.
•
Superior Court held that the issue of whether punitive damages were warranted in
nursing home case was a question for the jury.
•
Evidence of understaffing of the nursing home would support a claim of corporate
negligence, and that evidence supported finding that nurses were negligent when they
caused resident to suffer from pain when given restorative care.
•
A nursing home is akin to a hospital in the level of its involvement in a patient’s overall
care. Here, the court held that the nursing home is subject to vicarious liability for the
acts and omissions of the RNs and CNAs since Episcopal was responsible for the full
operation and management of the nursing home.
•
15
HALL V. EPISCOPAL LONG TERM CARE
54 A.3D 381 (PA. SUPER 2012)
JUDGE JACKSON
• Case was remanded for further proceedings concerning punitive damages, as
trial court erred in failing to present evidence for punitive damages to the jury
as well as submitting to the jury the question of whether punitive damages
were appropriate.
• Evidence similar to that presented in Scampone was sufficient for punitive
damages, i.e., acted in an outrageous fashion with reckless disregard to the
rights of others and/or created an unreasonable risk of harm to the resident by
chronic understaffing, manipulated staffing around state inspections, falsified
records. The resident went entire months without a bath and “was left to lie in
her own filth.”
16
LAFFE, ET. AL, V. JEWISH HOME OF GREATER HARRISBURG, ET. AL.,
NO. 09 CV 10920 (DAUPHIN C.P. AUGUST 14, 2012)
JUDGE TURGEON
• Defendants filed motion for Summary Judgment in nursing home abuse and neglect case.
• The Court allowed claims of corporate negligence to proceed against both personal care and skilled
nursing facility even though Scampone does not expressly extend to the latter Scampone v. Grane
HealthCare Co., 11 A.3d 967 (Pa. Super. 2010), appeal granted, 15 A.3d 427 (Pa. 2012).
• A negligence per se claim under Pennsylvania’s Neglect of Care-Dependent Person Statute, 18
Pa.C.S.A. § 2713, does not create an independent basis of tort liability, but rather establishes, by
reference to a statutory scheme, the standard of care appropriate to the underlying tort.
• To prevail on a corporate negligence claim, plaintiff need only produce evidence that defendants
had “actual or constructive knowledge of the defect or procedures that created the harm” and that
its negligence was a “substantial factor in bringing about the harm.”
• All of the entities are the same in this case. It is not clear that Scampone would not apply to the
skilled nursing facility.
17
GRAMMER V. JOHN J. KANE REGIONAL CENTERS-GLEN HAZEL
570 F.3D 520 (3D CIR. 2009)
JUDGE NYGAARD
• Daughter brought a wrongful death and survival claim under Section 1983
claiming that violations of the Federal Nursing Home reform Amendments
(FNRA), 42. U.S.C. § 1396r et.seq. led to her mother’s death.
• Court of Appeals held that Federal Nursing Home Reform Amendments were
sufficiently rights-creating that they could be enforced under Section 1983.
• Rights conferred by Federal Nursing Home Reform Amendments upon
county nursing home resident and Medicaid recipient were not so “vague or
amorphous” that their enforcement, via Section 1983, would strain judicial
resources as required to confer upon daughter individual federal rights
enforceable under Section 1983, arising out of nursing home’s failure to
provide resident proper care.
18
GRAMMER V. JOHN J. KANE REGIONAL CENTERS-GLEN HAZEL
570 F.3D 520 (3D CIR. 2009)
JUDGE NYGAARD
•
Various rights were clearly delineated by the provisions at issue, and the repeated use of
the phrases “must provide,” “must maintain” and “must conduct” were not unduly
vague or amorphous, but made clear that nursing homes must provide a basic level of
service and care for residents and Medicaid patients
•
The lack of care resulted in “decubitus ulcers,” malnutrition, and sepsis resulting in
death.
•
The issue is whether a violation of the FNRA gives rise to a § 1983 claim.
•
In Blessing, the Supreme Court set forth a three-part test to determine whether a statute
confers a federal right that may be redressed through a § 1983 claim. First, courts
should determine whether Congress intended that the statutory provision in question
benefits the plaintiff; second, courts should decide whether the right asserted is so
“vague and amorphous” that its enforcement would strain judicial competence; and
lastly, courts should determine whether the statute unambiguously imposes a binding
obligation on the states.
19
BLESSING THREE-PART TEST
1. The plaintiff is an individual that the statute is meant to protect,
1. The right is not so “vague and amorphous” for enforcement and
1. The statute unambiguously imposes an obligation on the state.
• Once those three factors are established, the right to bring a §
1983 claim is presumed unless rebutted by Congress having made
a specific foreclosure of a remedy.
20
Informed Consent/Battery
21
COOPER EX REL. COOPER V. LANKENAU HOSPITAL
51 A.3D 183 (PA.2012)
JUSTICE BAER
• Patient and patient’s child brought medical battery action against
hospital and physicians, alleging that physician had delivered baby
by cesarean section despite patient’s refusal to consent to the
procedure.
• Was performance of a c-section consented to, and if not is it a
battery?
• In a medical battery/lack-of-consent case plaintiff does not need
to prove that the defendant surgeon performed the unauthorized
operation with intent to harm the patient.
22
COOPER EX REL. COOPER V. LANKENAU HOSPITAL
51 A.3D 183 (PA.2012)
JUSTICE BAER
• Battery is an “act done with the intent to cause a harmful or
offensive contact with the body of another , and directly results
in the harmful or offensive contact with the body of another.”
• If the doctor operated without consent, the jury must find that
the battery was committed.
• The charge further acknowledged properly the physician need
not be negligent to be liable for battery, and that physical injury
in not required to prove an unauthorized touching. Order of
• Superior Court which affirmed the Trial Court’s entry of
judgment on the verdict in favor of appellees/Lankenau Hospital
is affirmed.
23
Certificate of Merit
24
LIGGON-REDDING V. SUGARMAN
659 F.3d 258 (2011)
JUDGE NYGAARD
• Certificate of merit rule applies in federal court.
25
Ex Parte Communication
26
GENTILE V. TIMKO
NO. 215 (CLINTON CO., AUG. 11, 2011)
JUDGE WILLIAMSON
• Opinion and reaffirmation of opinion that a court,
under Rule 4012, can prevent defendants from talking
to a pathologist who they employ. The pathologist had
performed a post-mortem on a deceased infant. The
court ruled that 4003.6 did not apply because a doctor
cannot be considered treating a dead person.
• Court held that parents’ mental health treatment
records and employment records were discoverable in a
stillbirth case in which the parents claimed damages for
future lost earnings.
27
Liens
28
E.D.B EX REL. D.B. V. CLAIR
987 A.2D 681 (PA. 2009)
(JUDGE MCCAFFERY)
• The parents and the guardians of an incapacitated minor settled a medical
malpractice claim.
• Lower court signed an order that settled the case and required payment,
from the settlement proceeds, to satisfy a Department of Public Welfare
(DPW) subrogation lien arising from medical expenses paid on behalf of
the incapacitated minor. Parents and guardians appealed the payment.
• Minor suffered severe physical and mental disabilities from medical
negligence at the time of birth.
• Court held that DPW was entitled to a portion of settlement proceeds that
the minor alone recovered during her majority.
• Court held that a Medicaid beneficiary has a cause of action against his
tortfeasor to recover and reimburse DPW for medical benefits received
during beneficiary's minority.
• After settlement, the trial court required payment of the subrogation lien
held by the Department of Public Welfare (DPW) for medical expenses
paid on behalf of the minor out of the settlement proceeds.
29
E.D.B EX REL. D.B. V. CLAIR
987 A.2D 681 (PA. 2009)
(JUDGE MCCAFFERY)
•
•
•
•
•
Plaintiff’s appeal asserted that neither the parents nor the minor could
recover for medical expenses.
The parents were time-barred from seeking compensation for medical
expenses their daughter incurred when the daughter was still a minor.
At common law, only the parents, not the minor herself, could recover for
medical expenses.
The issue was whether DPW can “…obtain reimbursement from a
tortfeasor for Medicaid expenditures made on behalf of a disabled minor”
when the claim by the minor’s parents is barred by the statute of
limitations.
The Pennsylvania Supreme Court decided that DPW can – resolving
incompatible holdings reached by the Supreme Court in this case and the
Commonwealth Court in favor of the Commonwealth Court’s decision in
Shaffer-Doan ex re. Doan v. Com., DPW, 960 A.2d 500 (Pa. Cmwlth. 2008).
30
E.D.B EX REL. D.B. V. CLAIR
987 A.2D 681 (PA. 2009)
(JUDGE MCCAFFERY)
• Minors can seek third party medical expenses incurred on
their behalf -- As long as their parents’ claims do not
duplicate them.
• The Fraud and Abuse Control Act (FACA, 62 P.S. §§
1404, 1409), applied to the minor’s settlement proceeds.
• Both the parents and the injured minor were the intended
beneficiaries of medical assistance benefits from DPW.
31
ZALEPPA V. SEIWELL
9 A.3D 632 (PA. SUPER. 2010)
JUDGE MUNDY
•
•
•
•
Injured motorist brought action against other motorist for automobile
accident.
Court entered judgment in favor of injured motorist and denied other
motorist's post-trial motion, which requested that court enter order
directing her to pay verdict by naming Medicare, along with injured
motorist and her attorneys, as payees on draft satisfying verdict, or by
paying verdict into court pending notification from Medicare that all
outstanding Medicare liens had been satisfied. Other motorist
appealed.
Judgment entered following a trial in which jury returned a verdict of
$15,000.
There is no right by the defendant to put money aside for a potential
outstanding Medicare lien. There is no legal basis to assert the
interests of the United States government as to reimbursement of the
Medicare liens
32
WOS V. E.M.A.
133 S.CT. 1391 (2013)
JUSTICE KENNEDY
• Guardian at litem for minor child, who had been a recipient of Medicaid
benefits and who had received an award from settlement of medical
malpractice suit, brought § 1983 action against North Carolina Department
of Health and Human Services, which had placed Medicaid lien on settlement
proceeds, seeking declaratory and injunctive relief for deprivation of child's
rights under federal Medicaid anti-lien provision.
• The Supreme Court held that a North Carolina statute governing the state’s
reimbursement from proceeds of tort damages recovered by a Medicaid
beneficiary, is preempted by the federal Medicaid anti-lien provision, to the
extent that the North Carolina statute can be interpreted as creating a
conclusive presumption that one-third of a Medicaid beneficiary's tort recovery
represents compensation for medical expenses.
33
WOS V. E.M.A.
133 S.CT. 1391 (2013)
JUSTICE KENNEDY
• The Medicaid statutes set both a floor and a ceiling on a State's potential share
of a beneficiary's tort recovery.
• Medicaid statutes require an assignment to the State of the right to recover that
portion of a settlement that represents payments for medical care, but also
precluding attachment or encumbrance of the remainder of the settlement.
• The Medicaid anti-lien provision prohibits a State from making a claim
to any part of a Medicaid beneficiary's tort recovery not designated as
payments for medical care.
34
TRISTANI V. RICHMAN
652 F.3D 360 (3RD CIR. 2011)
CIRCUIT JUDGE HARDIMAN
• This case is a punitive class action filed by three Pennsylvania Medicaid beneficiaries subject to
Pennsylvania Department of Welfare liens.
• State’s Medicaid liens on settlements or judgments (for medical costs) not prohibited by anti-lien
and anti-recovery provisions of the Social Security Act.
• Pennsylvania's default apportionment mechanism to divide Medicaid beneficiaries' settlements or
judgments against third parties between medical costs and other expenses was consistent with
federal law.
• In determining what portion of a Medicaid beneficiary's third-party recovery state may claim in
reimbursement for Medicaid expenses, state must have in place procedures that allow a dissatisfied
beneficiary to challenge the default allocation.
• This implied exception for medical costs to anti-lien and anti-recovery provisions was assumed but
not decided by the Supreme Court in Arkansas Department of Health and Human Services v.
Ahlborn, 547 U.S. 268, 280 n. 9, 291–92, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006).
35
ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES V. AHLBORN
126 S.CT. 1752 (2006)
JUSTICE STEVENS
•
Medicaid recipient sued the Arkansas Department of Human Services,
challenging ADHS’s assertion of claim or lien against proceeds
received by recipient in settlement of personal injury lawsuit.
•
Supreme Court held that Arkansas statute automatically imposing lien
in favor of ADHS on tort settlement proceeds was not authorized by
federal Medicaid law, to the extent that statute allowed encumbrance or
attachment of proceeds meant to compensate recipient for damages
distinct from medical costs.
•
Supreme Court held that the “anti-lien provision of federal Medicaid
law precluded Arkansas statute's encumbrance or attachment of
proceeds related to damages other than medical costs[.]”
36
KONIG V. YESHIVA IMREI CHAIM VIZNITZ OF BORO PARK
INC . ET AL.
1:12-CV-00467-JG, DOC. 10, (EASTERN DIST. NY, MARCH 30, 2012)
JUDGE GLEESON
• Konig brought an action for damages against Yeshiva stemming from a 2008
accident where Konig was injured. The negligence action had been settled in
March, 2011.
• While the action was pending, Rawlings—on behalf of Oxford—informed
Konig that Oxford asserted a claim against any settlement that Konig obtained
in the action.
• According to Rawlings, Oxford had paid approximately $24,000 for medical
care necessitated by the incident, pursuant to its health insurance policy with
Konig.
• Rawlings demanded that Konig use any sums collected through the negligence
suit to reimburse Oxford for the cost of these medical benefits.
• The Medicare Law does not provide a private right of action –express or
implied – to MAP providers (Medicare Advance Providers) for subrogation
rights.
• Federal jurisdiction denied.
37
KONIG V. YESHIVA IMREI CHAIM VIZNITZ OF BORO
PARK INC . ET AL.
1:12-CV-00467-JG, DOC. 10, (EASTERN DIST. NY, MARCH 30, 2012)
JUDGE GLEESON
• Although the Medicare statute clearly authorizes the government to bring an
action to enforce its subrogation rights under its own Medicare insurance
contracts, the statute does not expressly accord private MAP providers the
same right.
38
MEDICARE SECONDARY PAYER-LIABILITY INSURANCE (INCLUDING
SELF-INSURANCE) SETTLEMENTS, JUDGMENTS, AWARDS, OR OTHER
PAYMENTS AND FUTURE MEDICALS - INFORMATION
• Where beneficiary’s treating physician certifies in writing that
treatment for the alleged injury related to the liability insurance
(including self-insurance), “settlement” has been completed as of
the date of the “settlement,” and future medical items and/or
services for that injury will not be required.
39
Release of Claims
40
MALONEY V. VALLEY MEDICAL FACILITIES
984 A.2D 478 (PA. 2009)
JUDGE SAYLOR
• The plaintiff husband brought a medical malpractice claim against a
radiologist and internist and their associated medical institutions for failing
timely to diagnose and treat his deceased wife’s osteosarcoma.
• The plaintiff settled with the radiologist – with the settlement funded by that
physician’s primary liability insurer and the Medical Care Availability and
Reduction of Error Fund (MCARE fund) as an excess insurer.
• The settlement released the radiologist and all of the institutional medical
providers associated with both the radiologist and the internist.
• The release unambiguously reserved claims against the internist in an amount
limited to the amount of his maximum primary liability insurance coverage.
The release expressly included a pro-rata reduction for the internist for any
liability a verdict attributed to the settling defendants and the release included
a hold-harmless commitment.
41
MALONEY V. VALLEY MEDICAL FACILITIES
984 A.2D 478 (PA. 2009)
JUDGE SAYLOR
• The issue is whether the common-law rule requiring release of a principal
upon release of an agent applies in the reverse scenario: does the release
of a principal hospital automatically release the agent despite an express
reservation of claims against the agent-doctor.
• The Pennsylvania Supreme Court held that the release of the principal
(the medical institutions) did not release the agent-internist.
• Court held that in a scenario entailing a plaintiff’s surrender of vicarious
liability claims only and express preservation of claims against an agent,
the parties to a settlement should be afforded latitude to effectuate their
express intentions.
• Supreme Court explicitly disapproved Pallante v. Harcourt Brace Jovanovich,
Inc., 629 A.2d 146 in which the Superior Court extended Mamalis v. Atlas
Van Lines, Inc., 560 A.2d 1380 (1989) to hold that the release of the
principal automatically operated as a release to the agent as a matter of
law.
42
HMO
43
NORDI V. KEYSTONE HEALTH PLAN WEST, INC.
989 A.2D 376 (PA. SUPER. 2010)
JUDGE CLELAND
•
•
•
•
Plaintiff had health coverage, under an HMO with Highmark as a
company determining coverage, when she was injured in a car
accident.
The HMO authorized twenty outpatient physical therapy visits but
denied coverage for further physical therapy sessions that were
needed and prescribed by her physician.
As a result, the plaintiff discontinued her prescribed and necessary
therapy and sued for breach of contract, bad faith and unfair trade
practices.
The trial court granted summary judgment based upon the plain
language of the contract to provide therapy over a 60-day period
beginning with the first therapy session.
44
NORDI V. KEYSTONE HEALTH PLAN WEST, INC.
989 A.2D 376 (PA. SUPER. 2010)
JUDGE CLELAND
• HMO Act exempted HMO from claims of bad claim under the
Bad Faith Act.
• Bad faith claim alleged failure to provide coverage, to investigate
the claim to communicate with her, and to reach a fair settlement.
• HMO Act’s enabling legislation explicitly provides that HMOs are
not subject to the law related to insurance providers.
• Neither Highmark nor the HMO handled the claim in bad faith.
• A bad faith claim requires clear and convincing evidence of a
frivolous or unfounded refusal to pay a claim, not mere negligence
or bad judgment.
45
Misc. Trial Issues
46
TRIAL ISSUES
• ADMISSIBILITY OF EVIDENCE
1.
Patient’s Medical History
2.
Inculpatory Statements by Treating Physician
•
EXPERT
•
JURY INSTRUCTION ON NURSE’S
DUTY
•
REMITITTUR
47
RETTGER V. UPMC SHADYSIDE
991 A.2D 915 (PA. SUPER. 2010)
JUDGE BENDER
• An estate brought a wrongful death and survival claim arising from
medical negligence resulting in the death of the patient.
• The patient was diagnosed at age twenty-four with glioblastoma
multiforme, an aggressive brain tumor with a differential diagnosis of
brain abscess, after experiencing severe headaches.
• Court held that trial court did not abuse its discretion by restricting
evidence of patient’s medical history and refusing to admit allegedly
inculpatory statements by treating physician.
48
RETTGER V. UPMC SHADYSIDE
991 A.2D 915 (PA. SUPER. 2010)
JUDGE BENDER
• Trial court correctly instructed jury on nurse's duty to safeguard patient from
incompetent practice.
• The patient was transferred to the defendant medical facility and came under
the care of Dr. Bonaroti. A surgical procedure was scheduled for 7:30 a.m. on
Wednesday, November 19, 2003.
• The day prior to the scheduled surgery, the patient displayed uneven pupil size
and substantial pain. The nurse noted on the patient’s chart that his left eye
was fixed and dilated – which indicates an emergency condition. She also
telephone Dr. Bonaroti and advised him about the condition.
49
RETTGER V. UPMC SHADYSIDE
991 A.2D 915 (PA. SUPER. 2010)
JUDGE BENDER
• The doctor and nurse differ as to what was communicated. Dr. Bonaroti did
not report to the hospital or order emergency surgery and nurse Stalder did
not invoke the nurse chain of command or Condition C.
• At 6:00 a.m. nurse Stalder contacted Dr. Bonaroti who was already on his way
to the hospital. The patient’s condition had worsened, he had been suffering
from a fast growing brain abscess that, left unattended, had caused a brain
herniation.
• The trial court granted a new trial on the survival claim limited to damages
after a jury awarded $2.5 million on the wrongful death claim but nothing on
the survival claim.
50
RETTGER V. UPMC SHADYSIDE
991 A.2D 915 (PA. SUPER. 2010)
JUDGE BENDER
1. Eliminating Patient’s Medical History.
• It was not error to exclude additional evidence about alleged earlier failure
to diagnose brain tumor.
2. Inculpatory Statements by Treating Physician and Hospital’s Attempt to
Amend Its Complaint.
• It was co-defendant that tried to get in the statements. There was no cross
claim filed or proper joinder. Therefore there was no reason to permit this
at trial. The hearsay statements were likewise not admissible.
51
RETTGER V. UPMC SHADYSIDE
991 A.2D 915 (PA. SUPER. 2010)
JUDGE BENDER
3. Allowance of Physician to Testify as Expert.
• The doctor is permitted to give an opinion with respect to the nurse.
• There is an overlap of expertise between a neurosurgeon and that of a
neurosurgical nurse.
4. Instruction to the jury on nurses’ duty to protect patient from
incompetent care.
• The charge is not flawed. It’s a direct quote from 49 Pa.ADC§2118(a)(3) which prescribes the duties of a registered nurse.
• The charge is an accurate reflection of the evidence.
52
RETTGER V. UPMC SHADYSIDE
991 A.2D 915 (PA. SUPER. 2010)
JUDGE BENDER
5. Remittitur on Wrongful Death Claim and Award of New Trial and Survival
Claim.
•$2.5 million is not excessive for somebody who is unmarried and has no
children or dependents and provide only limited services in his parents’
home, to which he returned on weekends.
•On survival damages, the jury’s aware of zero damages bears no reasonable
relationship to the loss actually sustained and the court did not err in
awarding a new trial on the survival claim limited to damages.
53
BUCKMAN V. VERAZIN
54 A.3D 956 (PA. SUPER 2012)
JUDGE BENDER
•
•
•
•
•
Patient brought medical malpractice action against surgeon, health system, and hospital,
alleging medical negligence as a result of the care patient received after surgeon
performed a sigmoid colectomy and colostomy on patient.
Discovery revealed conflicting statements by the physician as to why he performed the
surgery in the manner he did.
As a result, plaintiff submitted discovery request for the medical records of all sigmoid
colectomy and similar procedures by doctor in five preceding years, allowing for the
redaction of all identifying information of the non-party patients.
Court of Common Pleas granted patient's motion to compel production of five years of
non-party patients' surgical records, and defendants appealed.
Patient’s collateral evidentiary interest in the confidential surgical records of other nonparty patients of surgeon did not overcome the non-party patient’s privacy rights and
were not relevant to patient’s medical malpractice claim.
54
Error In Judgment Rule
55
PRINGLE V. RAPAPORT
980 A.2D 159 (PA. SUPER. 2009)
JUDGE DONOHUE
• Parents brought medical malpractice claim against physician
when their infant son sustained tears to multiple nerves in
his neck, causing paralysis in his right arm.
• During delivery, the infant experienced shoulder dystocia.
• The doctor attempted to remedy the shoulder dystocia using
the “McRoberts maneuver.”
• Nonetheless the infant was born with his right arm limp.
56
PRINGLE V. RAPAPORT
980 A.2D 159 (PA. SUPER. 2009)
JUDGE DONOHUE
• Trial court committed reversible error when it provided an error of
judgment jury instruction, which provided generally that physicians were
not responsible for mere errors in judgment unless the resulting error
constituted, or was the result of, negligence.
• The issue is whether “error in judgment” instruction can be submitted to
the jury along with a res ipsa loquiter instruction.
• “Error in judgment” instruction should not be given in medical
malpractice claims at all because it confuses the jury.
• Res ipsa instructs the jury that it can infer negligence based upon
evidence.
• But, “Error in judgment” contradicts this by instructing the jury that it
may not infer such negligence.
57
PASSARELLO V. GRUMBINE
29A.3D 1158 (PA. SUPER. 2011)
JUDGE BENDER
• Parents of two-month-old child who died as result of undiagnosed and
untreated diffuse acute viral myocarditis, a viral infection of the heart muscle,
brought medical malpractice action against child's treating physician.
• Trial court entered judgment in favor of physician. After their motion for posttrial relief was denied, parents appealed.
• Court held that the rule of Pringle v. Rappaport, 980 A.2d 159 (Pa. Super.
2009), abrogating “error in judgment rule” applied to this case retroactively,
where defense counsel argued that the subjective behavior of defendant
physician was to do good, not harm.
58
PASSARELLO V. GRUMBINE
PA SUPREME COURT NOS. 15-16 WAP 2012
ARGUMENT: NOVEMBER 28, 2012
• Defense counsel used the error in judgment rule not as
measure of whether the doctor deviated from the
standard of care in any specific act or omission, but as
a measure of the doctor’s character as a professional.
• Defense counsel argued that regardless of the objective
standard of care the doctor in an exercise of continued
self-sacrifice, acted with the best intentions and made
judgments for which she could not be faulted, in part
because they were judgments and a physician cannot
warrant care.
59
PASSARELLO V. GRUMBINE
PA SUPREME COURT NOS. 15-16 WAP 2012
ARGUMENT: NOVEMBER 28, 2012
Retroactive application is warranted:
• need for clarity (for litigants and jurors)
• importance of preventing introduction of erroneous
legal concepts
• lack of genuine reliance on the prior rule due to
inconsistent and confusing application in the courts
• outweighs the relatively minimal impacts on the
administration of justice.
60
BUCKMAN V. VERAZIN
54 A.3D 956 (PA. SUPER 2012)
JUDGE BENDER
•
Patient brought medical malpractice action against surgeon, health system, and hospital,
alleging medical negligence as a result of the care patient received after surgeon
performed a sigmoid colectomy and colostomy on patient.
•
The Superior Court followed Passarello v. Grumbine and Pringle v. Rapaport in finding
that using an “error of judgment” charge in jury instructions in a medical malpractice
case wrongly suggests to the jury that a physician is not culpable for one type of
negligence, namely the negligent exercise of his or her judgment.
•
The opinion explains that “[t]his is simply untrue, since in all medical malpractice
actions “[t]he proper focus is whether the physician's conduct (be it an action, a
judgment, or a decision) was within the standard of care.”
61
BUCKMAN V. VERAZIN
54 A.3D 956 (PA. SUPER 2012)
JUDGE BENDER
• An “error of judgment” charge wrongly injects a subjective element into the
jury's deliberations.
• “The standard of care for physicians in Pennsylvania is objective in nature, as
it centers on the knowledge, skill, and care normally possessed and exercised in
the medical profession. The “error of judgment” charge improperly refocuses
the jury's attention on the physician's state of mind at the time of treatment,
even though the physician's mental state is irrelevant in determining whether
he or she deviated from the standard of care.”
62
Pharmaceutical
63
LANCE V. WYETH
4 A.3D (PA. SUPER. 2010)
JUDGE ALLEN
• Plaintiff alleged that Wyeth was negligent in placing an unreasonably
dangerous prescription drug on the market and failed to withdraw it
upon discovering that it was unsuitable for public consumption.
• Under products liability law, comment k of the Restatement (Second) of
Torts, § 402A applies. Only two possible strict liability claims:
• Manufacturing defect claim, or
• Failure to warn claim
• A design defect claim for strict liability is not permitted under
Pennsylvania when it is asserted against a manufacturer of a prescription
drug.
• A drug cannot be unreasonably dangerous, even if it is defectively
designed, so long as the drug is manufactured properly and contains
adequate warnings.
64
LANCE V. WYETH
4 A.3D (PA. SUPER. 2010)
JUDGE ALLEN
• Negligent design claim is not foreclosed. The Restatement
(Second) of Torts, § 395 addresses manufacturer’s negligent
design of products. Unlike 402A, this provision contains no
exemption for prescription drugs.
• Comment k is confined to strict liability and has no application
to negligence cases.
• Negligent design claim is not precluded by comment k and a
valid cause of action exists.
65
LANCE V. WYETH
4 A.3D (PA. SUPER. 2010)
JUDGE ALLEN
• No duty to recall since that is up to the FDA.
• Drug manufacturer’s post-sale duty to warn of dangerous
propensities provides consumers with a remedy and sufficient
protection.
• No post-sale duty to warn about technological advances when a
defect did not exist in the product at the time of the sale.
• No independent tort for negligent failure to test.
• No claim under Restatement (Third) of Torts: Products Liability
§ 6(c).
66
COLEMAN V. WYETH PHARMACEUTICALS, INC.
6 A.3D 502 (PA. SUPER. 2010)
JUDGE BOWES
• Summary judgment granted in favor of Wyeth Pharmaceuticals
and other parties. The summary judgments are reversed.
• At issue, was hormone replacement therapy comprising estrogen
and progestin in combination to relieve symptoms associated
with menopause which caused endometrial cancer.
• All filed within who years of the publication of Women’s Health
Initiative study linking the use of the drug to the endometrial
cancer.
• Decision should be by finder of fact, which in this case was the
jury, with respect to reasonable diligence.
67
DANIEL V. WYETH PHARMACEUTICALS, INC.
15 A.3D 220 (PA. SUPER. 2011)
JUDGE DONOHOE
• Case involves use of Prempro, which is estrogen and progestin.
• We reverse trial court’s order granting Wyeth’s post-trial
motion for a new trial and reinstate the jury’s verdict on
compensatory damages. We also reverse trial court’s grant of
JNOV on punitive damages and reinstate the jury’s verdict
awarding punitive damages.
68
MUTUAL PHARMACEUTICALS, INC. V. BARTLETT
133 S.CT. 2466 (2013)
JUSTICE ALITO
•
Plaintiff sustained significant injuries as a result of taking an inflammatory pain reliever
medication manufactured by Defendant, generic pharmaceutical company.
•
Plaintiff brought state court action against generic defendant to recover for her injuries.
The action was removed to federal court.
•
The Federal Food Drug & Cosmetic Act (FDCA) requires manufacturers to gain FDA
approval before marketing any brand or generic drug. Once a drug is approved, FDA
regulations prevent a manufacturer from making any major changes to the qualitative or
quantitative formulation of the drug, including active ingredients or in the specifications
provided in the approved application. 21 CFR Section 314.70(b)(2)(i).
•
New Hampshire state statute imposes on manufacturers “duty to design [their
products] reasonably safely for uses which [they] can foresee.” Plaintiff sued asserting
this statute.
69
MUTUAL PHARMACEUTICALS, INC. V. BARTLETT
133 S.CT. 2466 (2013)
JUSTICE ALITO
•
New Hampshire’s design defect statute imposes affirmative duties on manufacturers,
including a “duty to design [their products] reasonably safely for uses which [they] can
foresee.”
•
Redesign of the drug was not possible for two reasons.
•
The Food Drug & Cosmetics Act (FDCA) requires a generic drug to have the same
active ingredients, route of administration, dosage form, strength and labeling as its
branded-equivalent.
•
Because of the drug at issue, sulindac’s simple composition, the drug is chemically
incapable of being redesigned.
•
Since redesign is impossible under the federal statute, which governs generic drugs, this
comes into conflict with the state statute, and thus imposes a conflict between state and
federal law which the Supreme Court resolved by holding that the federal generic drug
law pre-empts the state law defective design claim under the New Hampshire Statute.
70
HASSETT V. DAFOE
74 A.3D 202 (PA. SUPER. 2013)
JUDGE BOWES
• Consumer who was allegedly injured after taking the generic drug
metoclopramide filed a suit seeking damages for personal injury against generic
manufacturers.
• Consumer’s negligence, strict liability, warranty, fraud and profit disgorgement
claims were not federally preempted.
• Consumer’s failure to warn claims, based on manufacturer’s failure to
strengthen warnings in conformity with that of the reference listed drug
(RLD), were preempted.
71
HASSETT V. DAFOE
74 A.3D 202 (PA. SUPER. 2013)
JUDGE BOWES
• Whether all claims asserted by Mr. Hassett and the other plaintiffs against
generic drug manufacturers are failure to warn claims pre-empted by the
Supreme Court case Mensing v. Pliva.
• In Mensing, the Court reasoned that since a generic manufacturer is
responsible under federal law for ensuring that its warning label is the same as
the brand name's label, and it cannot unilaterally change its label to attach a
stronger label as required by state law, it was impossible for generic drug
manufacturers to comply with both federal and state law.
• Court found that generic Defendants gloss over critical distinctions between
strict liability and negligence for defective products, breach of warranty,
misrepresentation and fraud theories of liability, without examining the statelaw duty allegedly violated.
72
HASSETT V. DAFOE
74 A.3D 202 (PA. SUPER. 2013)
JUDGE BOWES
•
Allegations suggest that the drug, even when used as recommended and with
appropriate warnings, was defective and unreasonably dangerous. Such averments do
not necessarily implicate labeling, but assert absolute liability based on the sale of a
defective or unreasonably dangerous product.
•
Generic Defendants can comply with federal law, which does not permit them to
unilaterally alter a drug's design, and state law, which extends liability to a manufacturer
of a defectively designed drug without regard to whether it may redesign its drug.
•
The court in Bartlett expressly left open the issue of whether § 402A strict products
liability design defect claims would be pre-empted. It did not address, or reject, the
argument Mr. Hassett asserts herein: that under § 402A strict products liability, it is
unnecessary for a plaintiff to demonstrate that a defendant should or could have altered
the design or the warnings.
73
HASSETT V. DAFOE
74 A.3D 202 (PA. SUPER. 2013)
JUDGE BOWES
• Federal labeling regulations pre-empt state law labeling and packaging
requirements only to the extent that they are different from or in addition to
those mandated by the federal statute.
• A proper pre-emption analysis is dependent upon a comparison of the federal
statute or regulation and the particular state law applicable.
• While federal labeling statutes may pre-empt state failure to warn claims, they
do not pre-empt claims based upon the marketing of defective products, a lack
of due care in testing, or a product's failure to conform to express and implied
warranties, all of which are alleged herein.
• The claims asserted herein implicate warranties arising from advertising and
promotional materials that arguably do not fall within the definition of labeling
under the Act.
74
HASSETT V. DAFOE
74 A.3D 202 (PA. SUPER. 2013)
JUDGE BOWES
• Allegations of false advertising and promotion are not failure to warn claims
based on the label pre-empted by Mensing.
• Complaint seeking disgorgement of profits from generic drug manufacturers
stemming from deceptive practices, such as concealing the risks associated
with the drug and misrepresenting its safety, and asserting claims of civil
conspiracy based upon the concealment and withholding of information, was
not preempted, under impossibility preemption, by federal law as a failure-towarn claim.
• Only pre-Act failure-to-warn claims based solely on a label that was in
conformity with the RLD label are pre-empted under Mensing and such failure
to warn claims are preempted here.
75
IN RE REGLAN / METOCLOPRAMIDE LITIGATION
74 A.3D 221 (PA. SUPER. 2013)
JUDGE BOWES
•
Consumers who were allegedly injured after ingesting the generic drug metoclopramide,
sued seeking damages for personal injury based on failure of drug manufacturer,
designated as successor reference listed drug (RLD) holder, to warn of drug's dangers.
•
Manufacturer failed to establish federal impossibility pre-emption as to consumer's
failure-to-warn claim.
•
Former generic drug manufacturer of metoclopramide failed to meet its burden of
proof to establish impossibility pre-emption as to consumer's failure-to-warn tort claim
by demonstrating that it was impossible to modify its label, under federal laws, and that
it lacked ability to use “changes being effected” (CBE) process to modify its warnings
label.
•
This was true even though generic manufacturer had been designated by Federal Drug
Administration (FDA) as successor reference listed drug (RLD) holder for the drug
after original RLD holder withdrew the drug.
76
IN RE REGLAN / METOCLOPRAMIDE LITIGATION
74 A.3D 221 (PA. SUPER. 2013)
JUDGE BOWES
• Supreme Court decision in Mensing does not confer upon generic drug
manufacturers blanket pre-emption of all state-law tort claims.
• Generic manufacturer maintains that despite its status as the RLD holder for
liquid syrup metoclopramide, it remained a generic manufacturer of an
ANDA-approved product, and that it had no ability to use the Changes Being
Effected (“CBE”) process to modify its warnings label.
• Supreme Court excluded RLDs from its definition of generic drugs and used
the designation “name-brand” and “listed” interchangeably.
• A generic manufacturer's inability to unilaterally change the warning label on
its generic drug is the foundation for the Mensing holding.
77
IN RE REGLAN / METOCLOPRAMIDE LITIGATION
74 A.3D 221 (PA. SUPER. 2013)
JUDGE BOWES
• Resolution of the issue of whether impossibility pre-emption applies to
Morton Grove hinges on whether that entity, as the RLD holder, had the
ability under federal law to change or update its label.
• The burden of proving the basis for the pre-emption defense rests with
Morton Grove, and it has not established with the requisite certainty that it
was impossible to modify its label.
78
Vaccines
79
WRIGHT V. AVENTIS PASTEUR, INC.
14 A.3D 850 (PA. SUPER. 2011)
JUDGE MUNDY
• Minor received vaccine containing preservative Thimerosal, a Hepatitis-B
vaccine manufactured by Merck. The claim was that the preservative exposure
caused neurological damage.
• Minor plaintiff’s claim was not covered under any of the bases listed on the
Vaccine Table whereby compensation is provided by the National Childhood
Vaccine Injury Act of 1986.
• Either defective warnings or defective manufacturing may serve as a basis for
alleging that certain vaccines’side effects were avoidable.
80
WRIGHT V. AVENTIS PASTEUR, INC.
14 A.3D 850 (PA. SUPER. 2011)
JUDGE MUNDY
• Congress intended the courts to conduct case-by-case inquiries as
to the nature of vaccine’s side effects.
• §300aa-22(b)(1) does not serve as an outright bar to any design
defect claim. Rather, the statute requires courts to conduct a
case-by-case inquiry in order to determine whether a particular
vaccine's side effects were unavoidable. Therefore the trial court
erred in granting summary judgment to the vaccine defendants.
81
BRUESEWITZ V. WYETH
131 S.CT. 1068 (2011)
JUSTICE SCALIA
•
Preemption enacted in the National Childhood Vaccine Injury
Act of 1986 bars state-law design-defect claims against vaccine
manufacturers.
82
Mcare Coverage
83
KRAPF V. ST. LUKE’S HOSPITAL
4 A.3D 642 (PA. SUPER. 2010)
GANTMAN, SHOGAN AND MUNDY, JJ.
•
Estates of five patients brought wrongful death and survival
actions against hospital after nurse formerly employed at
hospital confessed to having killed those patients.
•
Duty to inform patient or their family of really bad things that
go on in hospitals, such as murdering nurse.
•
Genuine issue of material fact existed as to the applicability of
the fraudulent concealment doctrine, precluding summary
judgment for hospital on limitations grounds
84
POLYCLINIC MEDICAL CENTER V. MEDICAL CARE
AVAILABILITY
13 A.3D 561 (PA. CMWLTH. 2011)
JUDGE PELLIGRINI
• A patient in a psychiatric unit was assaulted by another patient
using a wheel chair.
•
No Mcare coverage available where patient injured at the hands
of another patient. Claim was of improper supervision of
patients, but the court said that this did not constitute patient
care.
85
YUSSEN, M.D. V. MEDICAL CARE AVAILABILITY
46 A.3D 685 (PA. 2012)
JUSTICE SAYLOR
•
A doctor sought coverage under § 715(a) of the Medical Care
Availability and the Reduction of Error (MCARE Fund), 40 P.S.
§§ 1303.715(a).
•
MCARE Fund covers medical malpractice claims made more than
four years after the claim was made but within the statute of
limitations.
•
The MCARE fund denied coverage, asserting that the claim was
made on the date the writ was filed, which was less than four years
from the date of the alleged malpractice. The Commonwealth
Court, exercising original jurisdiction, agreed.
•
Pennsylvania Supreme Court reversed.
86
YUSSEN, M.D. V. MEDICAL CARE AVAILABILITY
46 A.3D 685 (PA. 2012)
JUSTICE SAYLOR
• “Claim” and “made” -as used in the statute - are ambiguous;
their meaning in an insurance setting contemplates notice and
reporting.
• Purpose of the MCARE fund statute is to create greater certainty
in calculating reserves.
• Requiring some notice to the insured is more consistent with the
purpose of the statute.
87
TRANSFER OF MCARE FUNDS TO
COMMONWEALTH’S GENERAL FUND
88
THE HOSPITAL & HEALTH SYSTEM ASSOCIATION OF
PENNSYLVANIA V. THE COMMONWEALTH OF PENNSYLVANIA
2013 WL 5379488 (PA. SEPT. 26, 2013)
• Supreme Court of PA held that plaintiffs had a vested due process interest in
having existing monies in MCARE Fund used for MCARE purposes of
satisfying judgments against health care providers.
• Court further held that it was a question of fact as to whether the transferred
monies represented a surplus in the MCARE Fund and precluded summary
relief on due process and tax uniformity claims.
89
THE PENNSYLVANIA MEDICAL SOCIETY V. THE DEPARTMENT OF
PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA
39 A.3D 267 (PA. 2012)
• PA Supreme Court held that abatement law gave the Secretary of the Budget
the discretion, but not the obligation, to transfer monies into the MCARE
Fund in an amount up to the total amount of abatements granted.
•
• Court further held that health care providers and associations representing
them had no vested right in health funds held in Health Care Provider
Retention Account.
90
TRANSFER OF MCARE FUNDS TO
COMMONWEALTH’S GENERAL FUND
• Health care providers and their associations had standing to
challenge the Commonwealth’s transfer of 100 million dollars
from the MCARE fund to the General Fund of the
Commonwealth. Hospital & Healthsystem Ass’n of Pa v. Com., 997
A.2d 392 (Pa. Cmwlth. 2010); see also Medical Soc. V. Dept. of Public
Welfare, 994 A.2d 33 (Pa.Cmwlth. 2010).
• Providers had vested rights that could not be terminated through
legislation. Id at 398.
• Judge Pellegrini dissents because the abatements have been paid,
that the doctors received everything promised, and that the $800
million dollar transfer from the General Fund to the MCARE
fund constitutes a windfall to the doctors. Medical Soc. V. Dept. of
Public Welfare, 994 A.2d at 46.
91
MCARE ACT - 509
92
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• Medical Malpractice claim brought against gynecologist for allegedly failing to diagnose breast
cancer.
• Jury awarded a verdict for plaintiff in the gross amount of $3,973,000 on January 18, 2008.
The molded verdict was for $2,582,450, reduced by plaintiff’s 35% contributory negligence.
• The potential award for future damages was $521,235 but since the plaintiff died, the actual
award accrued for medical at the time of death was $165,750.
• The jury awarded $170,000 per year in future medical expenses payable over five years, for a
total of $850,000; after reduction for the 35% comparative negligence the award for future
medical expenses over the five year period it is $110,500 yearly, or $27,625 quarterly.
• Plaintiff accrued medical expenses, totaling $165,750, when Plaintiff died prior to the
expiration of the five-year period awarded by the jury.
93
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• The appeal process was long, as Defendants appealed all the way to the U.S.
Supreme Court.
• Plaintiff had no access to the jury award for ‘future’ medical expenses during
appeal – which would have amounted to $165,750 at the time of death – and
went without medical treatment to slow her breast cancer.
• Plaintiff died on May 23, 2009.
• After a denial of writ for certiorari by U.S. Supreme Court, plaintiff (executrix
of estate) filed an amended petition for entry of judgment on November 23,
2010.
94
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• The issue was whether the MCARE Act provision - stating that
future damages are paid as periodic payment after the
proportionate share of counsel fees and costs based upon the
present value of the future medical damages - requires that
attorney fees be calculated based upon the jury’s five year award
when the plaintiff died prior to that, terminating the award
prematurely?
95
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• The Superior Court held that § 509 of M-Care Act - that required that future
damages for medical and other related expenses be paid as periodic payments
after payment of proportionate share of counsel fees and costs - did not
authorize additional attorney fees and
• Attorney was required to calculate his 40% contingency fee based on the
present value of the patient’s future damages at the time of death ($165,750)
rather than on the potential award ($521,235) – had plaintiff lived the full five
years.
• Plaintiff filed a petition for allowance of appeal which was denied on October
5, 2012.
96
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• The Superior court heavily relied on analysis that § 509 does not
authorize additional attorney fees to support its conclusion that
the attorney fees must diminish the award rather than add to the
award under the “American Rule” precluding recovery of attorney
fees from the adverse party “unless there is express statutory
authorization, a clear agreement of the parties, or some other
established exception.” (citation omitted)
97
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• § 509 is not an express authorization requiring the adverse party
to pay the prevailing party’s attorney fees because it refers to
attorney fees by stating that “future damages for medical or other
related expenses shall be paid as periodic payments after payment
of the proportionate share of counsel fees and costs based upon
the present value of the future damages awarded pursuant to
this subsection.” (emphasis by the court) 40 P.S. 1303.509(b)(1).
98
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• A significant fact in Sayler is that the plaintiff died prior to the
calculation of attorney fees.
• As a result, liability for future damages already terminated
pursuant to 40 P.S. 1303.509(b)(3).
• Under these circumstances the court viewed attorney fees based
on future damages as an addition to the jury award, requiring
express statutory authorization.
99
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• In many cases, however, unlike Sayler, the question of when the
future damages will terminate remains unknown at the time of the
attorney fee calculation because the plaintiff has not yet died.
• Question: when a jury award is reduced to judgment prior to the
death of the plaintiff, will courts be more receptive to the view
that the attorney fees should be a percentage of the jury award
reduced to present value rather than as the Sayler court did, as an
additional cost imposed upon an adverse party?
100
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• Perhaps underlying the Sayler decision was a perceived unjust
“windfall” in attorney fees when it is known at the time of
judgment that the jury award for future medical benefits has
already terminated at a value far less than what the jury awarded.
• It is harder to view attorney fees that are based upon a jury award
for future medical benefits that are expected to be paid in full at
the time of judgment as an “additional award” requiring statutory
authorization.
101
SAYLER V. SKUTCHES
40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
• The court did not discuss the potential for conflict of interest
between attorneys and plaintiffs or authority from other
jurisdictions which analyze similar medical malpractice statutes.
• The court noted that its conclusion was consistent with the
declaration of policy accompanying the MCARE Act “to limit
jury awards in medical malpractice suits in order to ensure
affordable health care premiums.”
• The Sayler decision suggests areas for future litigation.
102
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2012
PAJ Amicus
•In the court below, Judge Bernstein found that he had
calculated attorney’s fees properly.
•Sayler vs. Skutches was distinguished.
•Total verdict $78,404,669.00
•How to apply §5009(b) of the MCARE Act to
determine counsel fees.
103
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2012
• Future medical expenses reduced to present value is
$29,793.338.00
• Counsel is entitled to one-third (1/3) of this pursuant to
contingent fee agreement.
104
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2012
• Defendant’s position is that they are only obligated to purchase
an annuity, exclusive of attorney’s fees, in the amount of
$12,478,013.34. Defendant claims it is on this figure which
plaintiff’s counsel’s fee should be calculated.
• The cost of a life insurance policy is exceptionally different from
the present value of awarded medical payments as continually
defined by the Supreme Court.
105
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2012
• Nothing in the MCARE Act mandates the purchase of an annuity.
• A defendant may create a self-directed funding plan with safeguard sufficient to be
approved by the Court.
• Sayler v. Skutches does not apply because plaintiff had died and there were no future
medical expenses to be paid.
• In Sayler, the Superior Court held that where the plaintiff died before judgment was
entered, counsel fees could be determined on the basis of medical expenses already
accrued.
• In Sayler, the actual medical cost for the care the plaintiff had received between verdict
and death had been precisely determined at the time attorney’s fees were calculated.
• There were no future medical costs to be reduced to present value.
• The MCARE Act requires that attorney’s fees be calculated after all future medical
expenses contained in the verdict are reduced to present value.
• Since there were no future medical expenses, of course they could not be the basis of an
attorney’s fees.
106
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2012
• Damage calculation.
1. Present value of future medical expenses awarded by the jury
is $29,793,338.00
2. Add damages awarded which do not require reduction to
present value in the amount of $13,500,000.00
3. Add in delay damages of $2,515,901.00
4. Total awarded: $45,809,239.00
5. Plaintiff’s attorney’s fees for future medical portion of the
recovery are $9,931,113.00
107
NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY
SUPERIOR COURT NO. 2923 EDA 2012
• The judge did not say who pays the attorney’s fees, whether it
comes out of plaintiff’s verdict or whether defendant pays it.
• That issue has been briefed before the Superior Court.
108
Present Sense Expert Testimony
109
MCLANE V. VALLEY MEDICAL FACILITIES
157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009)
JUDGE WETTICK
RIGHT TO EXAMINE/IMPEACH DEFENDANT WHO WILL NOT TESTIFY
AS EXPERT ABOUT OBSERVATION THAT OCCURRED AT TIME OF
EVENT BY REFERENCE TO CURRENT OBSERVATION OR
INTERPRETATION
•Case involved a failure to timely diagnose cervical cancer, by cytotechnologists who
reviewed PAP smear slides.
•Stipulated that defendant cytotechnologists would not testify as experts at trial.
•At depositions, Plaintiffs intended to have cytotechnologists review areas on PAP smear
slides (selected by counsel).
•Judge Wettick declined to allow questioning regarding what they currently saw on the PAP
smear slides.
•Court held that witness who will not be offering expert testimony cannot be asked to make
an after the fact evaluation of his or her work.
110
MCLANE V. VALLEY MEDICAL FACILITIES
157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009)
JUDGE WETTICK
RATIONALE:
•Issue is “whether the care and skill exercised by the witness in reviewing
Plaintiff’s PAP smear fell outside acceptable professional standards. “
• What this witness observes at deposition with the knowledge that Plaintiff
was diagnosed with cancer, is not relevant.
•Also prejudicial: jury will focus on defendant’s testimony now and not on
expert’s testimony whether prior observations/conduct met the standard of care.
111
MCLANE V. VALLEY MEDICAL FACILITIES
157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009)
JUDGE WETTICK
• DISTINGUISHED Belan v. Ward, 152 Pitts. L. J. 282, 67 Pa. D. & C. 4th
529 (Allegheny Co. C. P. 2004)
• Belan holding: Physician must answer standard of care questions UNLESS
prior to or at deposition physician placed on the record that he or she will not
offer testimony regarding the standard of care.
• FOLLOWED in Myers v. Carey, Civ. No. NO. 11-01166 (Lyc. Co. C. P. Oct.
11. 2012) – required filing of stipulation that defendant would not testify as
expert.
•
Also Caldwell v. Branton, Civ. No. 08-00,805 (Lyc. Co. C. P. (Sept. 4, 2009)
(nonparty witness)
112
MCLANE V. VALLEY MEDICAL FACILITIES
157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009)
JUDGE WETTICK
Argument Contra:
•Clearly what physician sees now is relevant
•Differences in circumstances can be explained.
•Prejudicial effect should be weighed at time of trial, not at discovery
stage
•No consideration of right to call and confront adverse party witness
42 Pa. C. S. § 5935
•Distinguish non party witness (or co defendant) cases. See Jistarri v.
Nappi, 549 A.2d 210, 218 (Pa. Super. 1988); Dolan v. Fissell, 973 A.
2d 1009 (Pa. Super. 2009)
•Rules provide for discovery of opinions. See Pa. R. Civ. Proc.
4003.1(c); comment to Rule 4003.5.
113
MCLANE V. VALLEY MEDICAL FACILITIES
157 Pitts. L. J. 252 (Allegheny Co. C. P. 2009)
JUDGE WETTICK
There is no appellate authority on the issue.
•Older cases supporting proposition that a physician who is a defendant in a
medical-malpractice action can be required to give expert testimony:
•First National Bank & Trust Co. At Waynesboro v. E. R. Squibb & Son, 41 Pa.
D. & C. 3d 52 (Dauphin Co. C.P. 1985);
•Bolton v. Holy Spirit Hospital, 40 Pa. D. & C. 3d 372, 386-387 (Dauphin Co. C.
P. 1984).
•Makera v. Pequero, 50 Pa. D. & C. 3d 346 (Luzerne Co. C. P. 1988).
•Decker v. Pohlidal 22 Pa. D. & C.2d 631 (Northampton Co. C. P. 1960)
114