by Mark Bauman | Jun 30, 2023 | Legal News, Medical Malpractice
Since 2003, Pennsylvania Rule of Civil Procedure 1006 required plaintiffs in medical malpractice actions to only file a claim in the county in which the cause of action arose, or in instances where multiple healthcare providers are defendants, any county where venue can be tied to one of them. Prior to 2003, venue rules were consistent with non-medical malpractice actions and tort claims against non-governmental defendants: generally, a plaintiff could file in any county in which the cause of action arose, any county where a defendant could be served, or any county where a non-person entity defendant conducts business.
On August 25, 2022, the Pennsylvania Supreme Court announced that it will adopt amendments proposed by the Civil Procedural Rules Committee, the effect of which will greatly expand which counties plaintiffs can file suits in.
The ordered revisions to Civil Procedure rules 1006, 2130, 2156, and 2179 will go into effect on January 1, 2023.
Proponents of maintaining current venue rules feared that returning to the pre-2003 status would increase frivolous filings, reduce filings to a few historically plaintiff-friendly jurisdictions, increase insurance premiums, reduce patient access to quality care, and motivate physicians to leave the Commonwealth.
Those petitioning to revert back to pre-2003 venue rules argued that there had been a significant decrease in medical malpractice filings in the almost two decades since the rule change, that the cases filed since then resulted in lower compensation payments to victims, and that there was a clear advantage to defendants.
In explaining their rational for proposing the change to the Supreme Court, the Rules Committee characterized the current venue requirements as restrictive towards plaintiffs, that resulted in their disparate treatment and ultimately less-than-full compensation for their injuries. The Rules Committee further predicted that maintaining the requirement for certificates of merit would continue to limit frivolous filings. It also proposed that concern for forum shopping should be deemphasized in favor of compensation to victims. Finally, it supported the notion that if reverting to the pre-2003 venue requirements results in negligent providers relocating outside the Commonwealth, then those are preferred outcomes that will hopefully limit future occurrences.
The adopted changes include a provision to re-examine the impact of this rule change as early as January 1, 2025.
by Mark Bauman | Jun 29, 2023 | Legal News, Medical Malpractice
In an opinion authored by the Honorable J. McLaughlin, the Superior Court of Pennsylvania recently vacated an entry of summary judgment based on The Medical Care Availability and Reduction of Error Act’s (“MCARE”) equitable tolling of the statute of limitations provision.
In Reibenstein v. Barax, et al.[1], Ms. Whitman (“Decedent”) passed away on April 28, 2010 as a result of a ruptured abdominal aortic aneurysm. Five days prior to her death, at the request of her primary care physician, Dr. Conaboy, Decedent underwent a CT scan. The scan was reviewed by Dr. Barax who prepared a report stating that Decedent had an abdominal aortic aneurysm that was poorly visualized. Dr. Barax did not document an aneurysm rupture or concern of possible rupture. Dr. Barax’s report stated that Dr. Conaboy was contacted with the study and findings. One year after Decedent’s death, the adminstratrix of Decedent’s estate, Ms. Reibenstein, commenced an action against Dr. Barax and his employer asserting causes of action under the Wrongful Death Act and Survival Act. During his deposition, Dr. Barax testified that he spoke with Dr. Conaboy and explained to him that the CT scan showed a previously undocumented abdominal aortic aneurysm, but he could not visualize the aneurysm very well and he could not confirm that it was not bleeding or rupturing. Based on Dr. Barax’s testimony, Ms. Reibenstein initiated a sperate action against Dr. Conaboy and his practice. The trial court consolidated the two cases.
MCARE provides a statute of limitations requiring a claimant to commence a wrongful death or survival action asserting a claim for medical professional liability claim within two years of death[2]. However, the statute of limitations is subject to equitable tolling for affirmative misrepresentation or fraudulent concealment of the cause of death[3].
The Conaboy defendants sought summary judgment citing the general two-year statute of limitations for personal injury actions and argued that the discovery rule did not apply. The trial court granted summary judgment in favor of the Conaboy Defendants, concluding that the action was commenced more than two years after death and there was no evidence of affirmative misrepresentation or fraudulent concealment of the cause of death. Reibenstein filed a timely appeal arguing that the trial court erred in granting summary judgment on the ground that pursuant to MCARE, the statute of limitations governing Reibenstein’s wrongful death claim against Dr. Conaboy could be equitably tolled.
Reibenstein argued that Dr. Barax’s concealment of his communication with Dr. Conaboy concerning Decedent’s aneurysm was directly related to the cause of death and therefore, based on MCARE, the two-year statute of limitation should have been equitably tolled. Reibenstein asserted that MCARE does not define “cause of death” or explain how a defendant must conceal the cause of death for equitable tolling to apply. Therefore, according to Reibenstein, the phrase affirmative misrepresentation or fraudulent concealment of the cause of death should encompass those acts that were part of the chain of causation leading to the patient’s death. In response, Conaboy asserted that because Decedent died of a ruptured abdominal aortic aneurysm, and because it was recorded as the cause of death on her death certificate, the statute of limitations may not be tolled.
The Superior Court explained that “cause of death” was not defined by MCARE. Further, “cause of death” could mean the immediate, medical cause of death, such as is ordinarily listed on the decedent’s death certificate, or “cause of death” could also mean the conduct leading to the decedent’s death but that is not the immediate medical cause of death. As both interpretations of “cause of death” were reasonable, the Superior Court found Section 1303.513(d) of MCARE to be ambiguous as to the meaning of “cause of death”.
The Superior Court then turned to the Statutory Construction Act[4] to resolve the ambiguity. The stated purpose of MCARE is to insure, inter alia, that high quality health care is available and to provide a person who has sustained injury as a result of medical negligence by a healthcare provider with fair compensation, while controlling the costs of medical malpractice insurance rates[5]. Subsection 1303.513(d) of MCARE is the statute of limitations for medical professional liability wrongful death and survival actions. In drafting this statute of limitations, the Pennsylvania General Assembly included a provision to allow for the equitable tolling of the two-year period in cases where there has been affirmative misrepresentation or fraudulent concealment of the cause of death. The General assembly included the equitable tolling provision to protect patients who have pursued their rights, and despite this, extraordinary circumstances prevent them from bringing a timely action. In such extraordinary circumstances, the restrictions imposed by the statute of limitations does not further the statute’s purpose.
The General Assembly’s inclusion of such an exception recognizes that wrongful death and survival actions may involve situations where the patient’s interest in fair compensation outweighs the interest in limiting malpractice insurance costs. Therefore, it is in the furtherance of the purpose of fair compensation that the Superior Court interpreted affirmative misrepresentation or fraudulent concealment of the cause of death to encompass those acts which caused the patient to die. Where a medical practitioner hides an action that was directly related to the cause of the patient’s death, the Commonwealth’s interest in redress outweighs the interest in controlling the cost of medical malpractice insurance. The Superior Court held that affirmative misrepresentation or fraudulent concealment of the cause of death means affirmative misrepresentations about or fraudulent concealment of conduct that a Plaintiff alleges led to the Decedent’s death.
The Superior Court in Reibenstein noted that the trial court, in its order granting summary judgment to the Conaboy Defendants, held that because Decedent died of an abdominal aortic aneurysm, and the death certificate listed aortic aneurysm as the cause of death, Reibenstein was not entitled to equitable tolling of the statute of limitations. Based on section 513(d) of MCARE, the Superior Court was constrained to conclude that the trial court erred in concluding that Reibenstein’s claims were barred by the statute of limitations, and therefore erred in granting summary judgment in favor of the Conaboy Defendants.
[1] Reibenstein v. Barax, et al., 2020 Pa. Super 179.
[2] 40 P.S. § 1303.513(d).
[3] See Dubose v. Quinlan, 643 PA. 244 (2017).
[4] 1 Pa.C.S.A. § 1921 (c).
[5] 40 P.S. § 1303.102.
by Mark Bauman | Jun 28, 2023 | Legal News, Medical Malpractice
In a non-precedential opinion authored by the Honorable Mary P. Murray, the Superior Court of Pennsylvania recently remanded a medical malpractice matter for a new trial on the issue of damages based on a finding that the verdict may have been excessive.
In Kimble v. Laser Spine Institute, LLC., et al. [1], Decedent suffered from back pain for which she took numerous narcotic and other pain medications. Decedent underwent spine surgery at the Laser Spine Institute. Following discharge, on the date of the surgery Decedent stopped breathing. Emergency responders arrived and found Decedent unresponsive. Decedent was transported to the hospital and pronounced dead. Decedent’s autopsy revealed the presence of pulmonary edema [2]. The toxicology report revealed the presence of multiple opioids and several central nervous system depressants (“CNSD”). The cause of death was listed as “synergistic” effect of multiple CNSD.
Robert Kimble as the Administrator of the Estate of Sharon Kimble and in his own right brought suit against Laser Spine Institute, LLC; Laser Spine Institute Philadelphia; Laser Spine Institute of Pennsylvania, LLC (collectively “LSI”); and Glen Rubenstein, M.D (all referred to collectively as “Appellants”) alleging claims under the Pennsylvania Wrongful Death and Survival Acts [3]. The case proceeded to trial and a verdict was returned in favor of Kimble awarding 10 million dollars in Wrongful Death Act damages and 10 million dollars in Survival Act Damages. Appellants filed post-trial motions and the trial court granted Appellants’ request for judgment notwithstanding the verdict as to the Survival Act damages but denied the request for judgment notwithstanding the verdict regarding the Wrongful Death Act award.
Appellants argued that the 10-million-dollar Wrongful Death Act award was so excessive that it shocked the conscience. The Superior Court explained that it will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice [4]. The beginning premises is that large verdicts are not necessarily excessive, each case is unique and dependent on its own special circumstances [5].
In Kimble, the jury heard limited evidence from Kimble and his sons regarding the nature of the relationship between Kimble and the Decedent; they spoke generally of Kimble’s sadness following Decedent’s death and testified that Kimble had to move in with his mother because he did not like living alone. When addressing the issue of excessiveness, the trial court stated, “how much is a marital relationship worth to a surviving spouse? We leave that determination to the wisdom of the jury. To compare verdicts of other juries/fact finders in order to determine an appropriate award herein strikes at the independence of the jury process.” The Superior Court explained that the trial court abused its discretion by failing to vacate the damages award. The trial court’s decision reflected no examination of the testimony presented at trial related to non-economic damages; Kimble did not present evidence of economic damages arising from Decedent’s death, the evidence presented related to non-economic damages and did not support a 10-million-dollar award.
The Superior Court also noted that the 10-million-dollar award was far greater than other wrongful death awards for loss of society and comfort that the Superior Court had affirmed in other cases. The Superior Court explained that it was proper to look at other decisions in determining the appropriateness of a wrongful death award. Due to the trial court’s failure to examine the evidence and the award’s inconsistency with other awards for loss of society and comfort, the trial court’s award to Kimble was excessive. The Superior Court vacated the judgment entered against Appellants and remanded the matter to the trial court for a new trial limited to the issue of damages.
The opinion also serves as a reminder that the Superior Court will look for and rely upon waivers of appellate issues in order to preserve the validity of trial court rulings during the course of the trial. By way of example, LSI argued that the trial court erred in entering judgment against the specific named entities because the jury returned a verdict against “Laser Spine Institute” and did not specifically list the entities on the verdict slip. The Superior Court ruled that LSI failed to preserve this issue because they failed to raise the issue in their pre-trial motions. Moreover, even if LSI had not waived the issue, the trial record was full of instances demonstrating that the Parties commonly referred to the entities collectively as “Laser Spine Institute” or “LSI”.
Additionally, Appellants challenged the trial court’s decision to deny the requested JNOV. Specifically, Appellants argued that Kimble did not establish a prima facie case of negligence against Dr. Rubenstein as Kimble failed to present evidence establishing the applicable standard of care and was therefore unable to establish a breach of the standard of care or causation. LSI argued that JNOV was proper because Kimble did not establish that they were vicariously liable for Dr. Rubenstein’s conduct. The Superior Court ruled that Appellants had waived nearly all of their JNOV claims as there was no dispute that Appellants never moved for a directed verdict on any issue, which is a pre-requisite to a post-trial motion for JNOV. The Superior Court explained that Appellants’ movement for non-suit at the close of Kimble’s case-in-chief was insufficient to preserve the right to seek JNOV because the appropriate issues were not raised in the movement for non-suit. Appellants further failed to preserve their right to move for JNOV by not requesting a binding jury instruction setting forth the parties to be named on the verdict slip.
Additionally, Appellants argued they were entitled to a new trial because the evidence was insufficient to support a verdict reflecting that LSI was 65% liable for Decedent’s death. According to Appellants, because Kimble’s claim against LSI was for vicarious liability, LSI and Dr. Rubenstein were not joint tortfeasors and LSI could not be 65% liable and therefore, the trial court erred by allowing apportionment of liability on the verdict slip. The Superior Court noted that Appellants waived any argument as to the wording of the verdict slip as immediately prior to the closing arguments, counsel for Appellants specifically expressed that he had no issue with the verdict slip and Appellants raised no issue with the verdict slip at trial.
[1] Kimble v. Laser Spine Institute, LLC, et al., No. 617 EDA 2019 (Pa. Super, April 19, 2020).
[2] Pulmonary edema is a condition commonly observed in drug deaths involving opiates.
[3] 42 Pa. C.S.A. §§ 8301-83002.
[4] Tillery v. Children’s Hosp. of Philadelphia, 156 A.3d 1233 (Pa. Super. 2017).
[5] Id.
by Mark Bauman | Jun 27, 2023 | Legal News, Medical Malpractice
In Pennsylvania, regardless of when a medical injury was discovered, plaintiffs had only seven years from the actual causation of injury to bring forth a medical malpractice claim. The so-called limit to the discovery rule no longer applies.
On October 31, 2019 the Pennsylvania Supreme Court ruled that the seven-year statute of repose provided for in the state MCARE statute is unconstitutional. In doing so, the court reversed a Pennsylvania Superior Court decision that found the statute of repose within MCARE barred all claims against medical professionals that were discovered more than seven years later. In an opinion by Justice Mundy, the state’s highest court overturned its appellate court in a landmark decision. [i]
Traditionally a statute of limitations begins to toll from the date of the injury or discovery of such injury. The statute of repose is slightly different from a traditional statute of limitations. A statute of repose measures the amount of time from the last action taken by a defendant that leads to culpability regardless of when it is discovered. So, if a patient had a cognizable claim from a previous medical error that occurred five years prior, so long as they were unaware of the injury until five years later, then the statute of limitations did not toll. However, if they discovered this error eight years later, while the statute of limitations did not toll, the statute of repose would have barred recovery.
In this case, the plaintiffs brought a suit twelve years after the causation of injuries that triggered this lawsuit. A mother suffered from a genetic condition called Alpha-1 Antitrypsin Deficiency (AATD). This resulted in her not producing enough of a liver-synthesized protein that protects the lungs from damage. She needed a liver transplant, but she was not a candidate for a cadaver liver and thus her son volunteered a lobe of his liver. In the pre-donation process, her son was screened for AATD, and tested positive. However, the results of this screening were not shared with him and he underwent the liver transplant surgery-which he would not have done if he had been told he had AATD.
Twelve years later, the son, his mother, and her husband brought forth a suit for battery, lack of informed consent, medical malpractice, and loss of consortium. The defense raised the affirmative defense of the statute of repose tolling nearly five years prior in response to appellants’ complaints and filed a motion for judgment on the pleadings. Both the trial court and superior court found that the statute of repose did indeed bar hearing this claim. The case was appealed to the Pennsylvania Supreme Court to decide whether the statue of repose, as applied here, wass constitutional.
The appellants (previous plaintiffs) relied on a constitutional argument that the MCARE’s statute of repose could not survive intermediate scrutiny because the statute of repose does not apply to lawsuits arising from the leaving of foreign objects in the body. [ii] They argued that this discriminated against certain claims which violates the state constitution which guarantees open courts to remedy any and all injuries. [iii] The court agreed that the right to a remedy is an important right— albeit not a fundamental right triggering strict scrutiny—and analyzed the statute of repose under intermediate scrutiny. Intermediate scrutiny places the burden on the proponent of the statute to show that the statute is an appropriate way to accomplish its interest.
In its analysis, the court determined that the government interest in controlling the costs of medical malpractice insurance and medical care to be an important interest. The prevailing argument in support of a statute of repose is that it provides a level of certainty that after a set period of time medical professionals need not worry about previous errors. However, the court reasoned that the appellees (UPMC) failed to show that the seven-year statute of repose had any substantial connection to limiting insurance costs. Further because the statute of repose exempted claims of foreign objects from being subject to a limit, the court articulated that this was an unconstitutional discrimination of claims and not what the remedy clause was meant to accomplish.
The dissent, written by Justice Wecht argued that this was a bad precedent of judicial legislation and that the court was incorrectly disregarding the legislative body’s decision and intent to overturn a decades’ old law. This dissent also argued for a level of scrutiny “heightened scrutiny” that is between that would allow for non-fundamental rights to get a similarly high-level of deferment and presumption of merit. The majority did not adopt this line of analysis.
ADDENDUM:
On November 13, 2019, defendant UPMC requested that this decision be reargued. In a brief filed by its attorney, UPMC argued that the economic justification argument for the statute of repose issue was waived by the plaintiffs. Thus, the court brought up this argument on its own accord and did not afford the defense an opportunity to argue its position on this issue. Defense counsel further contended that the decision is in direct conflict with a 2017 Pennsylvania Supreme Court decision that upheld MCARE’s statute of limitations without evidence of legislative intent. Justice Mundy—who authored both the 2017 opinion and this opinion—seems to have relied upon the argument she used to uphold the statute of limitations in order to strike down the statute of repose.
SECOND ADDENDUM:
On January 31, 2020, the Pennsylvania Supreme Court rejected UPMC’s application for reargument; leaving its precedential October 2019 decision in place. Justice David Wecht penned a strong dissenting opinion of the court’s decision to not rehear arguments in the case. He argued that the ruling was misguided, confused about the law, and rehearing arguments would have given the court an opportunity to confirm its understanding or reverse its precedential decision. Wecht added that the state supreme court’s decision, “ignored precedent, misinterpreted the remedies clause of the Pennsylvania Constitution, and incorrectly adopted (and then misapplied) the intermediate scrutiny test.”
[i] Yanakos v. UPMC, 10 WAP 2018 (Pa. 2019)
[ii] 40 P.S. § 1303.512(b)
[iii] PA. CONST. art I § 11.
by Mark Bauman | Jun 26, 2023 | Legal News, Medical Malpractice
On October 17, 2018, the Pennsylvania Supreme Court overturned a Superior Court ruling involving an exception to the Pennsylvania statute of limitations for medical malpractice actions. The discovery rule allows a patient to bring a claim after the statute has passed, if they were unaware of their injury until after it occurred. The Court revived a plaintiff’s case under the discovery rule, allowing the patient’s claim to go forward. The Supreme Court’s decision effectively places less responsibility on a patient to actively participate in their medical care.
Under the Pennsylvania statute of limitations, a plaintiff must bring a medical negligence claim within two years after an injury occurs. There is an exception, deemed the “discovery rule,” which allows extra time to file the claim if the plaintiff was unaware of the injury until after two years had passed. Under the discovery rule, the statute of limitations starts to run at the time the plaintiff either knew or could have reasonably ascertained that they had an injury caused by negligence. The law requires that the patient be “reasonably diligent” in finding out about their injury.
In Nikolaou v. Martin[1], plaintiff sued various medical providers relying on the discovery rule, claiming that, although Mrs. Nikolaou contracted Lyme Disease in 2001, she was unaware of the diagnosis until 2010 because her providers failed to diagnose it. Following a tick bite in 2001, Mrs. Nikolaou was treated by several providers, each of whom performed blood tests for Lyme Disease. All the tests were negative. In 2006, she had an MRI which revealed inflammation consistent with Multiple sclerosis (MS) or Lyme Disease. Based on her symptoms and negative Lyme Disease tests, she was treated for MS. When her symptoms did not improve, Mrs. Nikolaou sought treatment from Nurse Practitioner, Rita Rhoads, whom she had heard was responsible for treating Lyme Disease patients formerly incorrectly diagnosed with MS.
When she first saw Nurse Rhoads on July 29, 2009, Nurse Rhoads told Mrs. Nikolaou that she believed she had Lyme Disease, and began treating her with antibiotics. She also recommended a diagnostic test (the “IGeneX test”) to further confirm the diagnosis. However, Mrs. Nikolaou refused the IGeneX test until February 1, 2010, seven months later. The record indicates that Mrs. Nikolaou refused the test because she did not have health insurance and did not want to pay out of pocket. Nurse Rhoads advised Mrs. Nikolaou on February 13, 2010 that the results were positive. Plaintiff filed a medical malpractice claim on February 10, 2012.
As defendants discovered, following the IGeneX test, Mrs. Nikolaou posted on her Facebook page that she had suspected for years that she had Lyme Disease, but her doctors had ignored her. The trial court granted defendants’ motion for summary judgment, refusing to apply the discovery rule to plaintiff’s case because “reasonable minds could not differ” that Mrs. Nikolaou suspected or had reason to suspect that she had Lyme Disease as early as July 2009. The Superior Court affirmed, reasoning that Mrs. Nikolaou was put on notice when the MRI was suggestive of Lyme Disease, Nurse Rhoads told her she probably had Lyme’s and started treatment which improved her symptoms, and she declined to take the IGenX test for several months to confirm the diagnosis.
The Pennsylvania Supreme Court heard argument on plaintiff’s appeal on May 17, 2018. Plaintiff argued that the case was improperly dismissed, because the issue of whether Mrs. Nicolaou knew or should have known about her Lyme Disease should be submitted to a jury. Plaintiff first argued that the defendants did not meet their burden to prove that no juror could find that plaintiff had not been reasonably diligent in discovering the alleged negligence. Next, they argued that the reasonable person standard under the discovery rule is subjective and depends on what a reasonable person in the plaintiff’s particular circumstance would do. They also argued that a patient’s financial capability should be considered in the determination.
Defendants rebutted each of plaintiff’s claims, stating that it was plaintiff’s burden to prove the discovery rule applied to her, and that the reasonable person standard is an objective test, to which financial considerations do not apply. Defendants also noted that the rule did not require knowledge of negligence—just that a cause of action be “ascertainable.” Defendants thus argued that the statute of limitations did not start to run only upon a final diagnosis.
Justice Baer agreed with defendants’ first two arguments. He noted that the discovery rule is narrow, and plaintiff has the burden to prove that the discovery rule applies. He also agreed with defendants that the reasonable person standard is an objective test. He stated that “the question is not what the plaintiff actually knew of the injury or its cause, but what he might have known by exercising the diligence required by law.” He went on to note however, that this objective test is “sufficiently flexible” to consider individual circumstances. He therefore reasoned that financial considerations is a permissible factor in deciding discovery rule issues.
Justice Baer ultimately found for the plaintiff. In rejecting the Superior Court’s decision, he stated that the Court had improperly concluded that Mrs. Nikolaou knew or should have known of her diagnosis by July 2009. Justice Baer held that, while the facts may establish that Mrs. Nikolaou knew or reasonably should have known she suffered an injury due to the defendants’ negligence, a jury could also find the opposite. The Superior Court inappropriately undertook a fact-resolution function, which is reserved for the jury. Further, it was inappropriate for the Superior Court to decide whether Mrs. Nikolaou should have taken the IGenX test in July 2009. He stated that this factor should also be determined by jury. He concluded by citing a Supreme Court case where the court held that the discovery rule imposes “a reasonable diligence requirement, as opposed to an all-vigilant one.”[2]
[1] 44 MAP 2017 (Pa. Oct. 17, 2018)
[2] Wilson v. El-Daief, 964 A.2d 354 (Pa. 2009).
