by Mark Bauman | Apr 30, 2023 | Medical Malpractice, Uncategorized
In an opinion issued on April 18, 2012, District Judge Arthur J. Schwab of the United States District Court of the Western District of Pennsylvania ruled that a plaintiff’s claim under Pennsylvania’s Unfair Trade Practices Act and Consumer Protection Law (UTPCPL) was sufficiently pled to withstand defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
The underlying case, Schiff v. Hurwitz, M.D., et al., involved a patient plaintiff who underwent plastic surgery at the hands of the defendant physician who maintained an office in Pittsburgh, Pennsylvania. During the initial consultation with plaintiff on April 23, 2009, defendant planned that the forthcoming surgery would be performed in two stages consisting of a “tummy tuck” and a lower body lift, respectively. However, at this time, according to plaintiff’s complaint, defendant did not discuss or document the potential risk of the device to be used in these procedures: a Radio Frequency Assisted Lipolysis (RFAL).
Almost one year later, on March 2, 2010, plaintiff presented to defendant again for placement of pre-operative markings. Again however, plaintiff alleged that the specific risks of the procedure were not discussed. The following day, defendant performed the first stage of the procedure using the RFAL device. Notably, while plaintiff was presented with an informed consent document prior to the procedure, plaintiff averred that this form was not reviewed by defendant and the risks and alternatives were not discussed. According to plaintiff’s complaint, plaintiff also happened to be unaware at this time that defendant was a paid investigator for the RFAL device, and that the device was being used for his surgery as part of a non-FDA approved clinical trial.
On March 9, 2010, approximately six days following the surgery, plaintiff began to experience pain in the areas in which the surgery had been performed. Even with prescribed medication, plaintiff alleged that the pain was uncontrollable, and that as a result of the procedure, he had been left with scarring and a residual demylinating condition.
On review of defendant’s motion to dismiss pursuant to F.R.C.P. 12(b)(6), the court noted that under the Federal Rules, plaintiffs bringing a claim are required only to provide “a short plain statement of the claim showing that [the plaintiff] [is] entitled to relief . . . .” Recognizing that there was no Pennsylvania Supreme Court precedent which applied the UTPCPL to plaintiff’s claims, the court nonetheless acknowledged that the UTPCPL was intended to protect the public and “eradicate unfair and deceptive business practices” by “plac[ing] consumers and sellers on equal terms.” Accordingly, under the UTPCPL, a plaintiff “must show that she justifiably relief on defendant’s wrongful conduct or representations and that [they] suffered harm as a result.”
With regard to plaintiff’s complaint, the court determined that such “deceptive conduct” was encompassed in the affiliation, connection, and association which defendant had with the RFAL device and its manufacturers, as well as plaintiff’s unawareness of the clinical trial with which he had been involved. Thus, because the complaint contained allegations that defendant had failed to warn plaintiff of the risks regarding the RFAL device, and that defendant misrepresented that the clinical trial had been FDA-approved, the court held that plaintiff had made a valid claim under the UTPCPL, and accordingly, denied defendant’s motion.
by Mark Bauman | Apr 29, 2023 | Legal News, Medical Malpractice
In a three-judge panel’s decision filed on February 6, 2012, the Superior Court of Pennsylvania, in Sayler v. Skutches, M.D., et al., 2012 WL 361400 (Pa.Super.2012), held that the Medical Care Availability and Reduction of Error (MCARE) Act did not statutorily authorize recovery of counsel fees beyond damages for future medical expenses awarded by a jury. Accordingly, counsel for plaintiff-appellant, who prevailed on behalf of their client at trial and received an award for future damages, was required to calculate their contingency fee according to the present value of the patient’s future damages at the time of the patient’s death, as opposed to the total amount of future damages awarded by the jury.
In the underlying medical malpractice suit, a trial was held over an alleged failure to diagnose breast cancer. Following trial, a jury awarded a verdict in favor of plaintiff-appellant. Taking contributory negligence into account, the final assessment of damages totaled approximately $2.5M.
During the course of several post-trial motions, plaintiff-appellant passed away. Thereafter, plaintiff-appellant raised the issue of payment of counsel fees by way of an amended petition for entry of judgment. Eventually, the trial court issued an order entering an award in favor of plaintiff-appellant, along with an opinion stating that, under Section 509, plaintiff-appellant would be entitled to the actual damages regarding future medical expenses which had accrued up to the time of her death. 40 P.S. 1303.509(b)(5). With regard to these damages, defendant-appellee would be authorized to satisfy the judgment through periodic payments, as opposed to a lump sum. 40 P.S. 1303.509(b)(3). However, as to the issue of counsel fees, the trial court specifically noted that pursuant to Section 509, all such fees were to be calculated before any payment was made by defendant-appellee, and that ultimately, this distribution “should be resolved between [a]ppellant and her attorneys in a separate action.”
During an appeal filed by plaintiff-appellant, the Superior Court considered whether payment of the proportionate share of counsel fees and costs should have been based upon the present value of the future medical damages under MCARE Section 509. While plaintiff-appellant argued that counsel was entitled to counsel fees based on the total amount of future medical expenses awarded by the jury, defendant-appellee took the position that such fees were to be calculated from the amount of the jury’s award which actually accrued before plaintiff-appellant’s death. The Superior Court agreed with defendant-appellee and affirmed the holding of the trial court.
As noted by the trial court, the Superior Court explained that Section 509 requires payments made for future medical damages to be paid as periodic payments, made after “payment of the proportionate share of counsel fees.” Notably, these payments are to be based upon the “present value of future damages awarded.” P.S. 1303.509(b)(5). Based upon the language of Section 509, the court concluded that “[a]ppellees’ liability to [a]ppellant terminated upon [appellant’s] death,” and that as a result, her counsel fees were to be calculated according to the amount of the future damages award which had accrued at that time. Beyond this amount, the court held that the plain language of Section 509 did not entitle plaintiff-appellant to an additional award of counsel fees.
In support of its conclusion, the court further explained that in order for a litigant to recover counsel fees from an outside source, “express statutory authorization, a clear agreement of the parties, or some other . . . exception” must be in place. Finding none of these in the matter at issue, it was determined by the court that an explicit provision regarding the award of counsel fees would have likely been included in Section 509 if the Pennsylvania Legislature had intended to provide for such an award. Looking further into the policy aims of MCARE Act, particularly the Legislature’s general intent to “limit jury awards in medical malpractice suits in order to ensure affordable health care premiums,” the court reaffirmed its position that Section 509 did not authorize an additional recovery of counsel fees beyond the accrued award.
by Mark Bauman | Apr 28, 2023 | Legal News, Medical Malpractice
In an order issued January 31, 2012, Judge Carol K. McGinley of the Lehigh County Court of Common Pleas ruled that a judgment of non pros issued against the plaintiff in the case of Freed v. St. Luke’s Hospital, et al., was proper, thereby denying plaintiff’s motion to strike the same.
In Freed, plaintiff filed a complaint on February 15, 2011, wherein she alleged that defendants, St. Luke’s Hospital and an attending gastroenterologist, were negligent in the performance of a colonoscopy procedure on October 27, 2008. On March 18, 2011, as no certificate of merit had yet been filed, defendants served a notice of intention to enter judgment of non pros. Thereafter, on March 23, 2011, plaintiff filed her certificates of merit against defendants. Defendants then filed a motion to strike the certificates of merit and to enter judgment of non pros on April 19, 2012. Following argument, the court granted defendants’ requested relief and entered judgment of non pros on June 13, 2011.
On August 11, 2011, plaintiff filed a petition requesting that the court strike the judgment of non pros, arguing that the judgment was improper with regard to both procedure and merit.
With regard to the alleged procedural error, plaintiff claimed that under Pa.R.C.P. 1042.3 and 1042.7, a judgment of non pros may only be entered by the prothonotary via praecipe when a plaintiff fails to file a certificate of merit in a timely manner. Notwithstanding this argument, the court noted that because plaintiff had failed to raise any objection to the court’s authority to strike the certificates of merit when the issue was initially contested, plaintiff had consequently “waived any objection to the procedural propriety of such an order.”
As to the merits of the court’s decision to enter the judgment of non pros, the court turned its focus to the content of the certificates and their supporting documentation. Following plaintiff’s filing of her certificates of merit against defendants, plaintiff provided defendants with several expert reports, all of which were authored by the same expert physician. Notably, plaintiff’s expert was board certified in physical medicine and rehabilitation, but not in gastroenterology. Nonetheless, in his reports, plaintiff’s expert claimed that while he himself had never performed a colonoscopy, he was “familiar with the colonoscopy procedure” from his own “observation and knowledge.”
Under Rule 1042.3, the court noted that the certificates of merit filed in a medical malpractice action must be submitted by an “appropriate licensed professional.” According to the court, in order to qualify as such, plaintiff’s expert would be required to meet the qualifications enumerated under Section 512 of the MCARE Act. See 40 P.S. 1303.512. Of the applicable MCARE qualifications, the court noted one in particular in which the expert must “practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care at issue.” 40 P.S. 1303.512(b).
Taking heed of the differences between the subspecialties of the defendant gastroenterologist and the plaintiff’s expert, the court determined that the latter individual did not qualify as an “appropriate licensed professional” under the Pennsylvania Rules of Civil Procedure. Notably, the court rejected plaintiff’s argument that her expert could satisfy the applicable MCARE requirements given that he possessed the “sufficient training, experience, and knowledge” enumerated under MCARE Section 512(e). 40 P.S. 1303.512(e). According to the court, because such experience and knowledge were based solely on observation of the colonoscopy procedure, plaintiff’s expert could not satisfy the “catch-all” provision of MCARE Section 512, and as a result, the expert failed to qualify as an appropriate licensed professional for the purposes of filing certificates of merit.
by Mark Bauman | Apr 27, 2023 | Legal News, Medical Malpractice
On June 28, 2011, Governor Corbett signed into law SB 1131, commonly referred to as the Fair Share Act. The Fair Share Act pertains to joint and several liability of defendants in civil litigation matters, and in short, allows parties bearing only partial responsibility for an injury or loss to be responsible for no more than their percentage share of the judgment.
Under the Fair Share Act, a defendant who is found less than 60% liable for an injury or loss, as compared with the total liability of all defendants, will only be responsible to pay damages proportional to the fault attributed to them by the jury. Thus, if a defendant is found to be liable for 25% of an injury or loss, according to the Fair Share Act, that defendant will pay only 25% of the judgment awarded by the jury. On the other hand, a defendant who is found to bear greater than 60% of liability for an injury or loss will be responsible for the full amount of damages, regardless of their percentage of fault.
With the passage of the new law, defendants in Pennsylvania may now be held “severally” liable, as opposed to “jointly” only. Alternatively, the old joint and several law provided that a defendant found responsible for only 1% of an injury could be held liable to pay up to 100% of the damages owed to the injured party. Essentially, under the old law, each defendant was held without exception to be jointly liable with the others for the full value of the damages.
Causes of action that accrued prior to June 28, 2011 will still be subject to the former joint and several liability rule. There are also four exempted circumstances to which the Fair Share Act does not apply:
- A suit including an intentional misrepresentation;
- A case of intentional tort
- A suit concerning the release or threatened release of a hazardous substance under the Hazardous Sites Cleanup Act; or
- A civil action in which a defendant has violated section 497 of the Liquor Code.
by Mark Bauman | Apr 26, 2023 | Legal News, Medical Malpractice
In an opinion filed on April 28, 2011, the Pennsylvania Supreme Court held that the MCARE Fund was obligated to cover a shortfall in a plaintiff’s award in a case involving multiple joint tortfeasors who were held jointly and severally liable.
The underlying case at issue involved allegations of negligent care rendered by defendant physicians, to the plaintiff’s deceased wife from 1992 to 1996. Following a trial conduced in August 2000, a jury, attributing a substantial percentage of fault to the decedent, adjusted a verdict of over $1 million to $707,000, and thereafter apportioned the amount among the defendant physicians pursuant to joint and several liability.
During the time at issue, defendant physicians each maintained primary professional liability coverage in the amount of $200,000 per occurrence under a policy issued by a now-insolvent private insurer. Because of the insurer’s insolvency, the Pennsylvania Property and Casualty Association thereby took over the claims, but with a coverage limitation of only $300,000 per claim. Nonetheless, the primary insurer’s obligation to plaintiff exceeded this cap by $100,000, which ultimately, was attributed to one of the defendant physician’s share of the verdict. Thereafter, the MCARE Fund determined that it had no responsibility to redress this $100,000 shortfall, and as a result, plaintiff sought to execute against the assets of the physician’s practice group for the unpaid portion of his judgment. Upon reaching a settlement of $125,000, plaintiff then took the position that MCARE was liable to him for this amount.
The Commonwealth Court of Pennsylvania ruled in favor of plaintiff. Consequently, the Fund lodged an appeal to the Supreme Court, stating that, as a straightforward matter of statutory construction, MCARE is obligated to pay claims only when the health care provider’s liability exceeds basic coverage, even in cases of joint and several liability. Plaintiff, on the other hand, argued that the MCARE Act does not provide a method for calculating the Fund’s obligations with liability is apportioned among multiple tortfeasors, and that as a result, the doctrine of joint and several liability should prevail over the Fund’s construction of the MCARE Act.
Notwithstanding the “strong argument” propounded by the Fund, i.e. that Pennsylvania law does not authorize MCARE to compensate for a shortfall arising from an insurer’s insolvency undermining a health care provider’s own line of primary coverage, the Court determined that a deficiency in the primary coverage of another health care provider, which ultimately is chargeable to the physician-claimant only on account of joint and several liability, is a novel issue.
As such, the Supreme Court noted that at the time plaintiff’s cause of action accrued, excess liability protection was provided to health care providers through a government-run contingency fund known as the Medical Professional Liability Catastrophe Loss Fund, a.k.a. the “CAT Fund.” In 2002, the CAT Fund’s statutory liabilities were transferred to the MCARE Fund. According to the Court, under the statutory scheme governing CAT Fund liabilities, the CAT Fund’s excess coverage responsibility to a health care provider was measured from the baseline of the provider’s own primary coverage.
Because the judgment in the underlying case was issued under the regime of the CAT Fund, the Court held that responsibility for this liability would ultimately now fall upon the MCARE Fund, which, as the Court noted, established a provider’s own primary coverage to be the boundary between what is primary and what is excess, relative to that provider. The Court therefore concluded that because the defendant physician’s $200,000 “basic coverage insurance” represented the baseline in the case at bar, the liability the physician bore for the shortfall in primary coverage fell within the CAT Fund’s excess coverage obligation, relative to the defendant physician. Accordingly, it was held that in order to satisfy the shortfall in coverage, the benefits of MCARE would remit to the defendant physician, and ultimately, to Plaintiff.
by Mark Bauman | Apr 25, 2023 | Legal News, Medical Malpractice
On January 4, 2011, the Commonwealth Court of Pennsylvania held in Polyclinic Medical Center v. Medical Care Availability and Reduction of Error Fund, that the Medical Care Availability and Reduction of Error Fund (MCARE) is not required to provide insurance coverage for injuries caused by other patients as opposed to the hospital’s health care providers and/or their agents.
In the underlying claim, in December 1993, a female patient sued a hospital for personal injuries she sustained by another patient while in the hospital’s psychiatric unit. The other psychiatric patient, a male, took a wheelchair, that was openly stored in the unit, and ran into the female patient’s left ankle and leg. The female patient claimed that her injuries developed into reflex sympathetic dystrophy, a condition causing permanent debilitating pain in her ankle and leg. She alleged the hospital was vicariously and directly liable for the supervision, training and monitoring of its employees who failed to properly supervise the male patient and its failure to properly store and supervise its wheelchairs.
In 1994, the hospital’s basic professional liability insurer accepted coverage for the patient’s claim and then submitted the required claim to MCARE. In 2005, MCARE denied liability coverage for the female patient’s injuries. MCARE claimed that since the patient’s injuries were not caused by the furnishing of medical services, they did not have an obligation to provide coverage. MCARE’s position was upheld by the Commonwealth Court.
Judge Dan Pellegrini, writing for the panel, stated that MCARE was not required to provide coverage and “to hold otherwise would make MCARE responsible for not only providing coverage for all injuries caused by health care providers and their agents when furnishing medical services, but also for injuries caused by patients doing anything at all so long as a health care provider had responsibility for their care, greatly expanding the scope of the Act.” He went on to state that, “MCARE is only available when a person has sustained injury or death as a result of tort or breach of contract by a health care provider or its equivalent or by an agent thereof.” Since the male psychiatric patient could not be considered an agent of the hospital, MCARE was not required to provide insurance coverage to the hospital for the female patient’s claim.
