by Mark Bauman | Jun 25, 2023 | Legal News, Medical Malpractice
In an opinion authored by Justice Christine Donohue, the Supreme Court of Pennsylvania recently restricted the application of the Peer Review Protection Act (PRPA). On March 27, 2018, the Court declined to extend the privilege to reviews conducted by an employee of a hospital staffing organization.
In Reginelli v. Boggs,[1] the plaintiff sued an emergency room physician for allegedly failing to diagnose an emergent heart condition, resulting in a heart attack. Eleanor and Orlando Reginelli filed suit against the physician, Marcellus Boggs, M.D.; Monongahela Valley Hospital, Inc. (MVH); and UPMC Emergency Medicine, Inc. (ERMI).
MVH and ERMI have a contractual agreement, by which ERMI provides staffing services to the MVH emergency department. Dr. Boggs was an employee of ERMI. ERMI also employed Brenda Walther, M.D., the director of emergency medical services at MVH.
During discovery, Dr. Walther testified at her deposition that she periodically prepared and maintained “performance files” of the MVH emergency physicians, including Dr. Boggs. These files contained random reviews of each physician’s patient charts. Plaintiff requested Dr. Boggs’ complete performance file, but MVH argued that it was protected by the PRPA.
Plaintiffs filed a motion to compel against MVH, which was granted by the trial court. Both MVH and ERMI appealed to the Pennsylvania Superior Court, arguing that Dr. Walther’s review of the emergency physicians’ files was for purposes of quality assurance, which constitutes peer review on behalf of both MVH and ERMI. The Superior Court affirmed the trial court’s order requiring defendants to produce the file, and defendants appealed to the Supreme Court.
Initially, the Court noted the importance of closely adhering to the statutory language of the Act. The Court acknowledged that the peer review privilege protects “the proceedings and records of a review committee from discovery . . . in an action against a professional health care provider” 63 P.S. § 424.4. The Court then reviewed the definitions of “peer review,” “professional health care provider” and “review organization” set out in section 424.2.
The Court first addressed whether ERMI qualifies as a “professional health care provider” under the PRPA. ERMI argued that ERMI provides medical care to patients through its employee physicians. The Court held that, to be considered a “professional health care provider”, an entity must be “approved, licensed or otherwise regulated” by the Commonwealth of Pennsylvania to practice health care. According to the Supreme Court, even though ERMI employed physicians, ERMI itself was not licensed to render health care services, and therefore could not qualify for protection under the PRPA.
In reaching this conclusion, the Supreme Court distinguished its holding in McClellan v. Health Maint. Org. of Pa.,[2] in which the 1996 plurality concluded that a healthcare provider could include “persons or things of the same general kind or class as those specifically mentioned in the [PRPA]”. Justice Donohue held that while McClellan may have broadened the scope of the types of entities that could be considered “health care providers”, ERMI here could not fit itself into that definition without satisfying the PRPA’s express prerequisite that it be “approved, licensed or regulated”.
The Court next addressed whether Dr. Walther, as an individual, could conduct peer review activities under the Act. Based on the Act’s definition of “review organization,” the Court drew a distinction between a “review committee” and a “review organization.” A review committee is “any committee engaging in peer review.” It must include at least two people. A review organization includes “any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.” Under section 425.4, the evidentiary privilege applies only to “[t]he proceedings and records of a review committee.” Therefore, while Dr. Walther might qualify as a review organization, she alone did not constitute a review committee entitled to the evidentiary privilege.
Further, in dicta, the Court suggested that credentialing activities do not constitute peer review. Peer review “is limited to the evaluation of the ‘quality and efficiency of services ordered or performed’ by a professional health care provider. Review of a physician’s credentials for purposes of membership (or continued membership) on a hospital’s medical staff is markedly different from reviewing the ‘quality and efficiency of service ordered or performed’ by a physician when treating patients.”
Lastly, the Court addressed the joint argument of MVH and ERMI that MVH’s peer review committee conducted peer review activities through ERMI pursuant to their contract. The Court dismissed this argument, holding that it had not been preserved for appeal. In dicta, the Court nonetheless addressed the argument and concluded that it lacked merit; there was insufficient evidence to suggest that Dr. Walther’s reviews were prepared on behalf of MVH pursuant to the contract, which was not part of the record.
[1]No. 1584 WDA 2014, 2018 WL 1473633, at *1 (Pa. March 27, 2018)
[2] 686 A.2d 801 (Pa. 1996)
by Mark Bauman | Jun 24, 2023 | Legal News, Medical Malpractice
In an opinion authored by Senior Judge William H. Platt, the Superior Court of Pennsylvania recently addressed whether expert witnesses, specifically medical experts, can testify to matters that are not directly within their specialty.
In James v. Albert Einstein Med. Ctr., et al.[1], Florence James, individually and as the Executrix of her brother’s estate, brought suit against five physicians and the institutional medical providers for which they practice. Ms. James alleged that from December of 2004 until March of 2011, said providers failed to diagnose the cause of her brother’s various recurring abdominal problems.
In 2011 after a CT scan, liver biopsy, colonoscopy and other testing, Lafayette James was determined to have a neuroendocrine carcinoid tumor and subsequently died in February of 2014. Ms. James asserted that the Appellees failed to order the proper follow-up diagnostic tests and failed to make appropriate referrals to specialists. Ms. James reasoned that as a result of these failures, delay in diagnosis occurred and her brother’s tumor grew until it metastasized and became incurable.
The Appellees argued that at all times they complied with the standard of care. Further, they asserted that Lafayette James was a noncompliant patient who failed to follow through on various referrals to specialists, failed to return for scheduled follow-up visits, and failed to present himself for additional testing procedures. The Superior Court noted that the record confirmed that the decedent only presented every year or two, when his abdominal symptoms were acute.
At trial, Ms. James objected to the trial court’s acceptance of Dr. Steven Peikin as an expert defense witness in oncology, because oncology was outside of his expertise. After a ten-day trial, the jury returned a verdict for the defendants. Ms. James timely appealed, her main argument being that the trial court had erred in qualifying Dr. Peikin, a gastroenterologist, as an expert in oncology.
The Pennsylvania Superior Court ruled in favor of Appellees and held that it was proper for the trial court to permit Dr. Peikin to offer opinions regarding oncology, despite his specialty being gastroenterology. The Superior Court reached this decision based on the analysis set forth below.
The court started its analysis by explaining that the standard for evaluating qualifications of an expert witness under Pennsylvania law is a liberal one: “The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.”[2]
In order to address experts in the practice of medicine, the Superior Court went on to explain, “In the area of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field. It is for the jury to determine the weight to be given to the expert, in light of the qualifications shown by the expert witness.”[3]
Specifically addressing the allowance of cross-specialty expert witness testimony, the court relied on McDaniel v. Merck, Sharp & Dohme, which held, “Experts in one area of medicine have been ruled qualified to address other areas of specialization where the specialties overlap in practice, or where the specialist has experience in another related medical field.”[4]
The Superior Court further relied on McDaniel and explained, “Although a witness must demonstrate some special knowledge or skill, there is no requirement that a witness acquire that knowledge as a result of formal schooling; expertise acquired by experience is expertise nonetheless.”[5] The court next turned to the Medical Care Availability and Reduction of Error (MCARE) Act, to supplement the McDaniel reasoning, specifically turning to §1303.512(e) which states, “A court may waive the same specialty and board certification requirements for an expert testifying as to the standard of care if the court determines that the expert possesses sufficient training, experience, and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five year time period.”[6]
Applying the above analysis to Dr. Peikin, the Superior Court reasoned that although Dr. Peikin’s primary specialty was gastroenterology, he was qualified to give testimony related to oncology based on his experience and knowledge. The experience the court found relevant in its determination that Dr. Peikin was qualified to give such testimony was: he is the head of Gastroenterology and Liver diseases at Copper University Hospital, he diagnoses cancer as a gastroenterologist, he is on the “tumor board” at Cooper University Hospital (a board responsible for monitoring cancer patients and deciding courses of treatment), and he completed a two year fellowship in endocrine tumors at the National Institute of Health.
[1] James v. Albert Einstein Med. Ctr. et al., Pa. Super. Ct. (unpublished opinion) (September 12, 2017).
[2] B.K. ex rel. S.K. v. Chambersburg Hosp., 834 A.2d 1178, 1182 (Pa. Super. 2003).
[3] Id.
[4] McDaniel v. Merck, Sharp & Dohme, 533 A.2d 436 (1987).
[5] Id. at 440.
[6] 40 Pa. Stat. Ann. §1303.512
by Mark Bauman | Jun 23, 2023 | Legal News, Medical Malpractice
In an opinion authored by Justice David N. Wecht, the Supreme Court of Pennsylvania recently addressed whether certain jurors should have been presumed prejudiced and dismissed based on their indirect relationship with the defendant’s employer, who was not a party to the case at the time of trial.
In Shinal v. Toms,[1] Megan L. Shinal had treated with Steven A. Toms, M.D. for a recurring, non-malignant tumor in the pituitary region of her brain. She had had surgery years earlier to extract the tumor through her nose, but the surgeon was unable to remove the entire tumor. At the time she saw Dr. Toms, the tumor had grown and extended into vital structures of the brain, threatening her eyesight, carotid artery, and her pituitary and hormone function.
Mrs. Shinal underwent an open craniotomy total resection of the brain tumor at Geisinger Medical Center in January 2008. During the surgery, Dr. Toms perforated her carotid artery, resulting in hemorrhage, stroke, brain injury, and partial blindness.
Mr. and Mrs. Shinal initiated a medical malpractice action in the Court of Common Pleas of Montour County against Dr. Toms, Geisinger Medical Center, and Geisinger Clinic, alleging that Dr. Toms failed to obtain Mrs. Shinal’s informed consent for the surgery.
Prior to jury selection, the Shinals moved to strike all potential jurors who were either employed or insured by, or had family members employed or insured by, any Geisinger entity. The trial court granted the motion in part, directing that any prospective jurors who were employed by Geisinger Medical Center or Geisinger Clinic, or who had family members residing in the same house who were so employed, would be stricken for cause. After numerous prospective jurors were disqualified, however, the court aborted the selection process and postponed trial. The Shinals’ motion for a change of venue was denied.
The hospital entities then were dismissed on a motion for summary judgment, since the duty to obtain informed consent does not belong to a physician’s employer or the employer’s agents.[2] The trial court also amended its order regarding juror disqualification. Relying on Cordes v. Assoc. of Internal Medicine,[3] the trial court held that per se disqualification of prospective jurors was not required based on an employment relationship with a non-party Geisinger entity. Rather, the inquiry would focus on whether the financial or situational relationship of the prospective juror or their close family member would give rise to an appearance of partiality or bias.
During jury selection, the Shinals moved to strike four jurors for cause based on their or their immediate family member’s employment with a Geisinger entity.[4] The trial court denied the motion since all four jurors indicated that they believed they could be fair and impartial, that they did not know Dr. Toms personally or as patients, and that they did not believe a negative verdict against Dr. Toms would negatively impact their or their family member’s employer. The Shinals exhausted their four peremptory strikes on these jurors.
At the conclusion of trial, the jury returned a verdict in favor of Dr. Toms.
The Shinals appealed, asserting that the trial court failed to strike for cause the four jurors with personal or familial employment relationships with Geisinger entities. The Superior Court affirmed, and the Shinals appealed to the Supreme Court.
With regard to jury selection, the Court began by noting that a trial court is required to strike a juror “when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses or alternatively, when the juror demonstrates a likelihood of prejudice by his or her conduct and answers to questions.”[5] Such strikes are a question of law, subject to de novo review. On the other hand, if a juror’s conduct or answers to questions reveal a likelihood of prejudice, the trial court’s discretion is given much weight and reversed only in the case of palpable error.
The Court first considered whether the jurors in this matter should have been presumed prejudiced and stricken, a question of law. It noted that the mere existence of some familial, financial, or situational relationship does not require dismissal in every case. “[R]emote relationships should be scrutinized by the trial court in order to elucidate the particulars and address the potential appearance of partiality.” The Court also noted, however, that Pennsylvania law holds that “where there is a direct employment relationship between a juror and a party or participant, the courts must presume prejudice and the juror must be stricken for cause.”
Discussing McHugh v. Proctor & Gamble Paper Products Co.[6] and the plurality opinion in Cordes, the Court held that “[a]n indirect employment relationship with an employer that has an ownership interest in a party defendant, standing alone, does not warrant a presumption of prejudice. However, a juror may reveal a likelihood of prejudice resulting from such an indirect employment relationship through his or her conduct or answers to questions.” The Court continued,
An indirect employment relationship will require removing a potential juror for cause if the juror believes that the outcome of the case could have a financial impact upon his or her employer. When it is apparent both that there is a common employer between a juror or a juror’s close family member and a party defendant, and that the juror believes that the employer would be affected by the outcome of the case, the trial court must remove the juror for cause.
The Court thus affirmed the trial court in not striking the jurors for cause. Neither Geisinger Health System nor Geisinger Clinic were trial defendants. None of the jurors knew Dr. Toms. None of the jurors worked directly for Geisinger Clinic (Dr. Toms’ employer) or Geisinger Medical Center (the site of the surgery). There was no indication that the non-party Geisinger employers had a financial stake in the outcome of the litigation. The indirect relationships did not require a presumption of prejudice as a matter of law. Additionally, there was no evidence of an abuse of discretion after the trial court further scrutinized the jurors’ relationships with Geisinger. Accordingly, it affirmed the trial court on this issue.
The Court also addressed a physician’s duty to provide information necessary to obtain informed consent. For a discussion of its holding on that issue, please click here.
[1] No. 31 MAP 2016 (June 20, 2017).
[2] Citing Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 2139 (Pa. 2002).
[3] 87 A.3d 829, 843-45 (Pa. Super. 2014).
[4] One juror was an administrative secretary at the Geisinger sleep labs. Another juror’s wife worked as an administrative assistant in a pediatrics department for a Geisinger entity for thirty-five years. A third juror was a customer service representative for Geisinger Health Plan. An alternate juror was a retired physician assistant who had previously worked at a Geisinger entity, but never in Dr. Toms’ department. Also, his son worked as a night security officer for a Geisinger entity.
[5] Citing Commonwealth v. Bridges, 757 A.2d 859, 873 (Pa. 2001).
[6] 776 A.2d 266, 270 (Pa. Super. 2001).
by Mark Bauman | Jun 22, 2023 | Legal News, Medical Malpractice
In an opinion authored by Justice David N. Wecht, the Supreme Court of Pennsylvania recently held that physicians cannot rely on their staff or subordinates to disclose the information required to obtain informed consent from a patient; the information must come directly from the physicians themselves.
In Shinal v. Toms,[1] Megan L. Shinal had treated with Steven A. Toms, M.D. for a recurring, non-malignant tumor in the pituitary region of her brain. She had had surgery years earlier to extract the tumor through her nose, but the surgeon was unable to remove the entire tumor. At the time she saw Dr. Toms, the tumor had grown and extended into vital structures of the brain, threatening her eyesight, carotid artery, and her pituitary and hormone function.
While discussing surgical options with Mrs. Shinal, Dr. Toms recalled Mrs. Shinal stating that she wanted to “be there” for her child, which he understood as meaning that she wanted him to attempt to remove the entire tumor if he thought he could do so with reasonable risk. He recalled advising her that subtotal resection would be safer in the short term, but total resection offered the highest chance for long-term survival. Mrs. Shinal decided to undergo surgery, but she disputed that the differences between subtotal versus total resection were explained to her.
The records following their discussion indicate that Mrs. Shinal spoke to Dr. Toms’ physician assistant, who answered questions about scarring, radiation, the craniotomy incision, and the date of the surgery. The physician assistant also took her medical history, conducted a physical, and provided her with information relating to the surgery. Mrs. Shinal signed an informed consent form for “a resection of recurrent craniopharyngioma”, which identified risks of pain, scarring, bleeding, infection, breathing problems, heart attack, stroke, injury and death.
Mrs. Shinal underwent an open craniotomy total resection of the brain tumor at Geisinger Medical Center in January 2008. During the surgery, Dr. Toms perforated her carotid artery, resulting in hemorrhage, stroke, brain injury, and partial blindness.
Mr. and Mrs. Shinal initiated a medical malpractice action in the Court of Common Pleas of Montour County against Dr. Toms, Geisinger Medical Center, and Geisinger Clinic, alleging that Dr. Toms failed to obtain Mrs. Shinal’s informed consent for the surgery.
The matter proceeded to trial. At the conclusion of trial, the trial court instructed the jury on informed consent. The instruction stated that the jury could consider any relevant information communicated to Mrs. Shinal by any qualified person acting as an assistant to Dr. Toms. During deliberations, the jury asked whether information conveyed to Mrs. Shinal by the physician assistant could satisfy informed consent requirements, to which the trial court responded by repeating its prior instruction. The jury returned a verdict in favor of Dr. Toms.
The Shinals appealed, asserting that the trial court improperly instructed the jury to consider information given to Mrs. Shinal by anyone other than Dr. Toms when determining informed consent. The Superior Court affirmed, and the Shinals appealed to the Supreme Court.
The Court addressed whether physicians may rely on their subordinates to provide information to patients necessary to obtain their informed consent. It noted that the trial court instructed the jury that it could consider relevant information communicated by “any qualified person acting as an assistant” to Dr. Toms. The Shinals argued that this instruction was a misstatement of the common law and conflicted with the MCARE Act, 40 P.S. § 1303.504.
The Court acknowledged that the standard of review for examining jury instructions is “limited to determining whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case.” An erroneous charge is grounds for a new trial if, as a whole, it is inadequate, unclear, or has a tendency to mislead or confuse a material issue.[2]
The Court noted that the doctrine of informed consent is grounded in a patient’s right to autonomy. It recognizes the patient’s right to be informed of the risks, benefits, likelihood of success, and alternatives to a proposed course of treatment so that the patient may make an informed decision. The Court previously had held that this duty was non-delegable in Valles. The Court noted that a hospital cannot be liable for a physician’s failure to obtain informed consent because the physician, and not the hospital, has the education, training, and experience necessary to properly advise the patient of the risks specific to that patient’s medical history.
The Court held that, for the same reasons, “a physician cannot rely on a subordinate to disclose the information required to obtain informed consent. Without a direct dialogue and a two-way exchange between the physician and the patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives.”
The Court further stated that this holding was consistent with the MCARE Act, Section 504 states:
(a) Duty of physicians.—Except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient’s authorized representative prior to conducting the following procedures:
(1) Performing surgery, including the related administration of anesthesia.
* * *
(b) Description of procedure.—Consent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.
The Court noted that Section 504 places the duty to obtain informed consent upon physicians. Nothing in the Act suggests that a patient’s conversations with anyone other than the physician can control the analysis or satisfy the physician’s legal burden. The focus is on what information a physician gives to the patient, not what information the patient received. Accordingly, the Court held that a physician’s duty to provide information to patients necessary to obtain their informed consent is non-delegable, overruling Foflygen v. Allegheny General Hosp.[3] and Bulman v. Myers[4] to the extent that they held otherwise. As a result, the Court remanded that case for a new trial.
The Court also addressed the issue of juror bias. For a discussion of its holding on that issue, please click here.
[1] No. 31 MAP 2016 (June 20, 2017).
[2] Citing Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069 (Pa. 2006).
[3] 723 A.2d 705 (Pa.Super. 1999).
[4] 467 A.2d 1353 (Pa.Super. 1983).
by Mark Bauman | Jun 22, 2023 | Nursing Home Litigation
The state Supreme Court recently held that arbitration agreements that include a clause specifically designating the National Arbitration Forum as sole arbitrator are invalid. In Wert v. Manorcare of Carlisle PA, LLC,[1] Evonne Wert, on behalf of the decedent, signed an arbitration agreement along with admission paperwork upon admission to Golden Living Center. Following the decedent’s death, her daughter brought a medical malpractice claim against the nursing home alleging abuse and neglect inflicted upon the decedent throughout her stay, which eventually resulted in her death. Golden Living Center filed preliminary objections seeking to enforce the arbitration agreement; however, the trial court overruled the preliminary objections finding that the agreement was unenforceable because it relied, in part, on the National Arbitration Forum (NAF) Code procedures, which were void at the time with respect to consumer arbitration disputes. Golden Living Center appealed the decision arguing that the NAF provision was not integral to the agreement at issue. In reviewing the testimony, the Superior Court found that the arbitration agreement was signed under the belief that all the paperwork needed to be signed in order for the decedent to obtain treatment and care. Therefore, the Superior Court found that the NAF provision was an integral to the agreement and affirmed the trial court’s ruling. Golden Living Center filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was granted.
On appeal, Golden Living Center argued that the NAF provision of the agreement was ancillary and severable based upon the plain text of the agreement, terms and policy guidelines of the Federal Arbitration Act, and testimony of the plaintiff. They further argued that while the agreement merely agreed to the NAF code of procedure, it did not make the participation of the NAF forum itself essential, i.e., the arbitration could be conducted in any forum, by an agreed upon arbitrator, so long as the NAF code of procedure mandated the proceedings. Further, Golden Living Center argued that the Federal Arbitration Act (FAA), which was incorporated into the agreement, should have been invoked to appoint a replacement arbitrator.
Ms. Wert argued that the NAF provision of the agreement was essential to the agreement because, by its own terms, only the NAF can administer its rules and procedures, therefore making NAF the sole forum of arbitrations under the agreement. She further argued that the FAA section referenced by Golden Living Center is limited to the appointment of an alternative arbitrator, not an alternative arbitration forum and cannot supersede the terms of the agreement.
Justice Stevens wrote the opinion for a plurality of the court. The Court first found that Ms. Wert’s testimony regarding her understanding of the agreement was irrelevant as her failure to read the agreement did not implicate the importance of its NAF provision. The court found that, “premising the integrality of a contractual term on the subjective understanding of a far less sophisticated non-drafting party is ill-advised public policy that would further distort an already lopsided balance of power.”[2] Further, the court noted that a non-drafting party could not use her failure to read as a means of disavowing an otherwise valid arbitration agreement.[3] The court held that because the agreement did not make the NAF’s availability non-essential by specifically varying the terms of the agreement to appoint a replacement arbitrator should there be a lapse in naming an arbitrator, the FAA did not apply to do the same. Further, the court found the agreement unambiguous and, by its own terms, specified that the NAF must administer its code unless the parties agreed to the contrary, which the they did not do in this case. Therefore, the court affirmed the Superior Court’s ruling and remanded for further proceedings.
Justice Eakin wrote a dissenting opinion in which he found that the NAF’s Code of Procedure could have been applied in this case as it is still in existence even though the NAF no longer accepted arbitrations. He found that, even if the NAF provision was found to be unenforceable, the remainder of the agreement should have been enforced and the parties should have been bound to arbitrate the underlying lawsuit by an agreed upon arbitrator applying the NAF Code.
Justice Baer also wrote a dissenting opinion stating that the court’s holding was contrary to the plain language of the agreement, which provided that disputes be adjudicated in binding arbitration, not in the court system. Like Justice Eakin, Justice Baer found that the agreement to arbitration in accordance with the NAF Code of Procedure was valid, even without the NAF’s availability to serve as arbitrator.
The court’s ruling further subjects nursing home arbitration agreements to scrutiny and indicates a necessity for clear and unambiguous language in order for courts to enforce such agreements against non-drafting parties.
[1] 2015 WL 6499141 (Pa. 2015).
[2] Id. at 8.
[3] Id.
