by Mark Bauman | Jun 19, 2023 | Legal News, Medical Malpractice
In Page v. Moses Taylor Hospital, et al.,[1] the Lackawanna County Court of Common Pleas denied defendants’ motion seeking to permanently seal plaintiffs’ settlement petition as well as all related filings and orders, finding that the defendants did not satisfy their burden of showing that their interest in sealing the settlement terms outweighs the presumption in favor of open access to judicial records.
This matter arose from the plaintiff-mother’s eclamptic seizure when her twins were 33.4 weeks gestation, after which the plaintiff-mother developed placental abruption that allegedly caused the twins to be stillborn. The plaintiff-mother also suffered hypovolemic shock, tachycardia and massive hemorrhaging, which required her to undergo an emergency hysterectomy and removal of her fallopian tubes and ovaries.
During the course of the case, the plaintiffs submitted an expert report regarding the pain and suffering of the twin fetuses. Defendants filed a motion in limine to preclude evidence of fetal pain and suffering, which was overruled.[2] Defendants also filed pre-trial motions regarding plaintiff-mother’s claim for negligent infliction of emotional distress and bereavement damages, both of which were also denied.
Thereafter, the parties reached a settlement agreement after the jury was selected. Plaintiffs filed a petition for court approval of the settlement, its allocation, and its distribution. Defendants then filed a motion seeking to permanently seal plaintiffs’ settlement petition and attached exhibits, as well as any subsequent related filings and orders. In support of their motion, defendants argued that “no legitimate public interest would be impaired in the sealing of the settlement terms, and no countervailing consideration should override the parties’ interests in confidentiality… [S]ealing of the terms of the settlement agreement would promote fairness and efficiency, in that it would encourage amicable settlement…The disclosure of the terms of the instant settlement agreement risks unnecessary and inappropriate influence on other cases involving defendants associated with the defendants in this matter.”
The court, however, was unpersuaded. In his opinion, Judge Terrence R. Nealon applied the common law approach to analyze the defendants’ request to seal the judicial records. Citing several Pennsylvania Superior Court cases,[3] the opinion notes that there is a presumption in favor of public access to court records. The court performs a balancing test of the factors in favor of access and the factors against it, and the moving party has the burden of showing that his or her interest in secrecy outweighs the presumption for open access. The opinion noted that, “while the general interest in encouraging settlement based upon a particularized need for confidentiality is a factor to be considered, it is outweighed by the public’s right of access if the settlement agreement involves information important to public health and safety or matters of legitimate public concern.”
Judge Nealon was unpersuaded by the defendants’ arguments that sealing the records would promote amicable settlements and would prevent influence on other malpractice cases involving the defendants. The opinion emphasizes that medical negligence claims, malpractice insurance premiums, and their affect on health care access are subject to public debate and legislation. Additionally, the opinion considered the newsworthiness of this case. It had already been the subject of media coverage in several instances, including the pre-trial motions regarding evidence of fetal pain and suffering and the plaintiff-mother’s claim for negligent infliction of emotional distress. The court found that the defendants did not satisfy their burden of showing how the disclosure of the terms of settlement would cause increased harm to the defendants so as to outweigh the public interest, particularly since the negligence allegations against the defendants had already been disseminated in the press.
Though the court denied the defendants’ motion to seal the petition for settlement and related filings, it temporarily sealed the petition and order in the event that the defendants sought an appeal of the order. The seal will be lifted if no timely appeal is filed.
[1] 2016 Pa. Ct. Comm. Pl. (unpublished opinion) (August 18, 2016).
[2] http://www.obrlaw.com/medical-malpractice.php?Court-Permits-Expert-Testimony-Regarding-Fetal-Pain-Suffering-Claims-89.
[3] Com. v. McKown, 79 A.3d 678 (Pa. Super. 2013); In re J. B., 39 A.3d 421, 434 (Pa. Super. 2012); Zdrok v. Zdrok, 829 A.2d 697, 699 (Pa. Super. 2003); Storms ex rel. Storms v. O’Malley, 779 A.2d 548, 568 (Pa. Super. 2001), app. denied, 570 Pa. 688, 808 A.2d 573 (2002).
by Mark Bauman | Jun 19, 2023 | Medical Malpractice
In Page v. Moses Taylor Hospital, et al.,[1] the Lackawanna County Court of Common Pleas denied defendants’ motion in limine to preclude plaintiffs’ claim for pain and suffering of fetuses or, in the alternative a motion for a Frye hearing. The case involved a medical malpractice action surrounding the stillbirth of twins at 33.4 weeks gestational age. Plaintiffs alleged that the defendants negligently failed to diagnosis and treat preecelampsia, and as a result plaintiff-mother suffered an eclamptic seizure causing her to develop placental abruption that resulted in the demise of the twin fetuses. The plaintiff-mother suffered hypovolemic shock, tachycardia and massive hemorrhaging requiring her to undergo an emergency hysterectomy and left salpingo-ophorectomy.
The plaintiff-mother asserted a cause of action under the Wrongful Death Act, 42 Pa.C.S. § 8301, and the Survival Act, 42 Pa.C.S. § 8302. Plaintiffs produced an expert report from a board-certified specialist in neonatal and perinatal medicine who opined that a “fetus at 33 weeks gestational age [is] able to experience pain and suffering from the effects of asphyxia, i.e., abnormal gas exchanges, as would an older infant, child or adult as well as from the effects of short-term starvation.” Id. at 3. He further opined that the pain suffered by the twins before their death was implicitly severe and significant. Id.
The defendants filed a motion in limine to preclude plaintiffs’ claim for pain and suffering of fetuses based on Frye v. United States,[2] and Pa.R.C.P. 207.1. The defendants alleged that plaintiffs’ expert opinions related to pain and suffering of in-utero fetuses due to death by asphyxiation are not supported by and documented by scientific authority other than his own subjective belief. Page v. Moses Taylor Hospital, at 4.
The Court discussed Amadio v. Levin,[3] where the Supreme Court expressly extended to a dead child the right to institute a survival and wrongful death action for injuries suffered in utero. The fetus must be viable at the time of the fatal harm in order to assert a claim under the Wrongful Death and Survival Acts. Page v. Moses Taylor Hospital, at 9. The Supreme Court of the United States and the Superior Court of Pennsylvania have held that viability occurs at 23-24 weeks gestation. Id. at 14.
Furthermore, plaintiffs’ expert cited an article from The New England Journal of Medicine which reviewed and cited more than two-hundred studies and publications addressing pain perception of neonates as well as other related topics. Defendants’ experts failed to submit any contrary medical literature to support their Frye motion and only offered their own conflicting expert opinion. The Court found that there was scientific support for the conclusion that “viable fetuses at 33 weeks gestation have the cortical, subcortical and neurochemical capacity for conscious perception of pain.” Id. at 15.
Ultimately, the Court found that plaintiffs’ expert opinion was supported by scientific authority, and therefore, did not require a Frye hearing. The motion in limine to preclude plaintiffs’ expert testimony was denied and the Court determined that it was an issue for the jury to determine the weight accorded to plaintiffs’ expert opinion.
[1] Page v. Moses Taylor Hospital, et al., 2016 Pa. Ct. Comm. Pl. (unpublished opinion) (May 6, 2016).
[2] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
[3] Amadio v. Levin, 509 Pa. 199, 208, 501 A.2d 1085, 1089 (1985).
by Mark Bauman | Jun 18, 2023 | Legal News, Nursing Home Litigation
Recent legislation in the U.S. House of Representatives proposes banning mandatory pre-dispute arbitration clauses in nursing home agreements. The proposed Arbitration Fairness Act of 2011 would eliminate the requirement that all claims against the nursing home facility and its employees be brought in front of an arbitrator, instead allowing the individual to choose how they want to proceed after a dispute arises. The intent of the legislation is to ensure that nursing home residents are not unfairly deprived of their constitutional rights by requiring them to give up their “day in court” prior to a claim arising. The next step in enacting the Arbitration Fairness Act of 2011 is approval by the U.S. Senate. If enacted into law, arbitration must be agreed to by both parties to a nursing home action after the dispute arises, or the case will proceed through the court system.
See S. 987 (112th): Arbitration Fairness Act of 2011.
by Mark Bauman | Jun 17, 2023 | Legal News, Nursing Home Litigation
On June 30, 2009, in an opinion offered by the Honorable Richard Lowell Nygaard, the U.S. Third Circuit Court of Appeals permitted an action against a county operated nursing home to proceed under 42 U.S.C. § 1983 for violations of the Omnibus Budget Reconciliation Act of 1987 (OBRA) and the Federal Nursing Home Reform Amendments (FNRA), 42 U.S.C. § 1396r et seq.
The action was brought by the daughter of a resident against a nursing home operated by Allegheny County. The complaint contained two counts, one for wrongful death, the other for survival. It alleged that as a result of the nursing home’s failure to render proper care to her mother, her mother developed decubitus ulcers, became malnourished, and eventually developed sepsis which plaintiff alleged caused her mother’s death.
The case was dismissed pursuant to Fed.R.Civ.P. 12(b)(6) after the nursing home filed a motion to dismiss. The District Court held that there was no private right of action under OBRA and FNRA. Plaintiff appealed to the Third Circuit Court of Appeals.
In finding that there was a private right of action under FNRA, the Third Circuit cited Blessing v. Freestone, 520 U.S. 329 (1997) for the three factors to determine whether a statute conveys a federal right upon an individual. The Third Circuit explained these factors to be 1) whether Congress intended that the statutory provision in question benefits the plaintiff; 2) whether the right asserted was so “vague and amorphous” that its enforcement would strain judicial competence, and 3) whether the statute unambiguously imposes a binding obligation on the states. Noting that all factors had been met, the Third Circuit then inquired into whether the statutes in question unambiguously conferred a substantive right in accordance with the Supreme Court’s decision in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
In addressing this issue, the Third Circuit noted that the provisions of FNHRA contained numerous references to rights created and is clearly phrased in terms of persons benefitted, and therefore, held that an action against a county operated nursing home could proceed under 42 U.S.C. § 1983 for violations of OBRA and FNHRA.
Noting that plaintiff had met her burden, the Third Circuit noted that the burden then shifted to defendant to rebut the presumption of an enforceable right under § 1983. However, defendant failed to argue that Congress precluded enforcement of rights conferred by FNHRA, and the Third Circuit’s assessment of the Medicaid Act uncovered no evidence of congressional intent to preclude enforcement of these rights.
by Mark Bauman | Jun 17, 2023 | Legal News, Medical Malpractice
The Pennsylvania Supreme Court recently upheld a law that bars wrongful birth lawsuits. In the underlying case, Sernovitz v. Dershaw, the plaintiffs filed suit against Mrs. Sernovitz’s treating physicians for failure to inform her of circumstances that would have otherwise led to her having an abortion.
The plaintiffs were both of Ashkenazi Jewish heritage, which placed their unborn baby at an increased risk of suffering from a genetic disorder known as familial dysautonomia. During her prenatal care, Mrs. Sernovitz underwent genetic testing, which showed that she was a carrier of the gene mutation; however, her treating physicians negligently misinformed her about the test results and told her that she was not a carrier. Mrs. Sernovitz gave birth to a son who suffered from familial dysautonomia. After the birth of her son, the plaintiffs learned that they were both carriers of the gene mutation. If they were correctly informed of the test results, further testing would have been conducted and they would have learned of the baby’s condition while still in utero. Had the plaintiffs known of the baby’s condition while still in utero, Mrs. Sernovitz would have had an abortion.
The plaintiffs filed suit against the healthcare providers asserting claims for wrongful birth and seeking damages for medical expenses and emotional distress. Act 47 of 1988, however, stood in their way as it bars claims for wrongful birth. Plaintiffs argued that the Act was unconstitutional in its entirety. Specifically, plaintiffs argued that the Act’s original purpose was changed during its passage through the General Assembly, it contained more than one subject including regulations regarding criminal proceedings, and in its final form, it was not considered on three days in each House. The defendants filed preliminary objections, which were granted by the court of common pleas. The trial court found that the plaintiffs’ claims were barred by the Act and their complaint was dismissed. The Superior Court reversed the trial court’s decision. In doing so, the court found that the Act violated the single-subject rule and that there was no unifying topic to which all aspects of the Act pertained.
On appeal to the Pennsylvania Supreme Court, defendants argued that the doctrine of laches should be applied to find the plaintiffs’ claims inequitable due to an unreasonable delay in challenging the Act.[1] At the outset, the Court disagreed with the Superior Court’s ruling that the Act violated the single-subject rule. In doing so, the Court quoted a prior ruling and stated that “it would be arbitrary to preserve one set of provisions germane to one topic, and invalidate the reminder of the bill[.]”[2]
In determining whether the doctrine of laches applied to the Sernovitz’s claims, the Court considered the delay in challenging the Act, as well as the defendants’ public policy argument. First, the Court considered the defendants’ argument that the 22-year delay in challenging the Act rendered plaintiffs’ claims inequitable under the circumstances. The plaintiffs argued that the defendants’ laches argument was waived since they did not raise it at the trial or appellate court level. The Court agreed with the plaintiffs, finding that the doctrine of laches is an affirmative defense that should be raised in a responsive pleading. Further, the Court found that the doctrine did not apply to claims such as this “in which tort plaintiffs, who may have been minor children or not yet born at the time of the legislation under review became law, institute an otherwise timely action after suffering a private injury.”[3] However, the Court made a distinction in this case as opposed to ordinary laches defenses. It noted that, in an ordinary laches scenario, the plaintiff’s claim is otherwise valid and the defendant bears the burden to demonstrate that enforcing the plaintiff’s rights would be inequitable under the circumstances. In this case, the plaintiffs’ claims were otherwise presumptively invalid as Act 47 clearly precluded wrongful birth claims. Therefore, there was a strong presumption of validity and the plaintiffs, as challengers, had the burden in regard to their allegation of unconstitutionality.
Next, the Court turned to the public policy argument that allowing the plaintiffs’ claims to proceed would invalidate Act 47, which the public had relied upon in criminal cases for over 20 years. The Court held that, “[i]nvalidating all of these provisions retroactive to 1988 would be unduly disruptive to the orderly administration of justice in Pennsylvania.”[4] Ultimately, without addressing whether the Act violated the single-subject rule, the Court concluded that the substantially delayed nature of the plaintiffs’ challenge rendered the legislation immune to attack. Accordingly, the Superior Court’s ruling was reversed and the trial court’s order dismissing the plaintiffs’ amended complaint as barred by Act 47 was reinstated.
[1] Sernovitz v. Dershaw, No. 123 MAP 2014 (2015).
[2] City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003).
[3] Sernovitz, No. 123 MAP 2014, 13 (2015).
[4] Id. at 17.
