by Mark Bauman | Apr 24, 2023 | Legal News, Medical Malpractice
A trial court judge in Allegheny County, Pennsylvania recently took the rare step of vacating a jury’s verdict in favor of the defendant doctor following a medical malpractice trial. In her written opinion, Judge Judith L. A. Friedman stated that she granted the plaintiff’s motion for a new trial in Bedillion v. Chen because the verdict of the jury “was so against the weight of the evidence as to shock the conscience of the court,” adding that her ruling was made “in the interests of justice.”
The plaintiff alleged that the defendant pulmonologist was negligent for failing to make a timely diagnosis of lung cancer. On the witness stand, the doctor testified that she had suspected all along that the plaintiff’s decedent did in fact have lung cancer, but that she resisted the biopsy necessary to make the diagnosis. Judge Friedman wrote that the doctor’s medical records contradicted this testimony, strongly suggesting that the doctor had testified untruthfully.
Judge Friedman wrote that a new trial was also warranted because she erroneously failed to grant a motion in limine of the plaintiff to bar the affirmative defense of contributory negligence. While this claim was ultimately dismissed during the course of trial, it allowed the defendant to present evidence that was irrelevant to the question of her negligence and deemed by Judge Friedman to be prejudicial, confusing, and misleading. Judge Friedman termed this decision a “serious and harmful error.”
Judge Friedman’s decision to vacate the defense verdict is on appeal to the Superior Court. In urging the Superior Court to uphold her ruling, Judge Friedman also stated that the defendant doctor should be precluded from testifying in her own defense at the new trial due to her prior testimony which, in the Judge’s view, “was in all probability intentionally untruthful on material issues.” Judge Friedman wrote that “(i)t is the duty of the court to prevent the submission of evidence that is untrustworthy of belief to a jury.”
by Mark Bauman | Apr 23, 2023 | Legal News, Medical Malpractice
In a three judge panel’s opinion filed on December 21, 2010, the Commonwealth Court in West Penn Allegheny Health System d/b/a Allegheny General Hospital v. Medical Care Availability and Reduction of Error Fund (MCARE) and Kiana Townes, by Tamara Blanchard, Guardian, issued an order requiring MCARE to render an indemnity payment of up to $1,000,000 from the MCARE Fund for a plaintiff’s extended claim filed under Section 715 of the MCARE Act, without any reduction of amounts previously paid by the MCARE Fund to Allegheny General for the 1998 coverage year.
The underlying case at issue involved an incident of alleged medical malpractice in June 1998, wherein a minor plaintiff was born at Allegheny General Hospital by emergency cesarean section and thereafter suffered seizures and diagnosed with birth asphyxia and multi-organ dysfunction. In July 2008, Allegheny’s claims service company notified MCARE of a potential extended claim under Section 715 of the MCARE Act and requested that MCARE defend and indemnify Allegheny Hospital for the plaintiff’s claim. (Under the MCARE Act, an “extended claim” is a claim made against a health care provider who was required to participate in the Medical Professional Liability Catastrophic Loss Fund, is filed more than four years after the breach of contract or tort occurred, and is filed within the applicable statute of limitations.) MCARE responded that it would so indemnify Allegheny, but noted that “any exhaustion of aggregate limits may affect available coverage.” On March 26, 2010, the parties in the action settled for $1,100,000.
Prior to the settlement, Allegheny sought summary relief and filed for declaratory judgment that the MCARE Fund’s $1,000,000 per occurrence liability limit under Section 715(b) of the MCARE Act was not subject to the MCARE Fund’s annual aggregate liability limit. MCARE filed a cross-application for summary relief, alleging that Allegheny Hospital had eroded its coverage amount since 1998 and that given MCARE’s annual aggregate liability limit, only $394,917 was currently available to cover its claim. Allegheny argued that such an annual aggregate liability limit, which is detailed in other sections of the MCARE Act, did not apply to extended claims.
Turning to a statutory analysis of the MCARE Act, the Commonwealth Court noted that the duty of MCARE to defend and pay extended claims is an exception to its “role as an excess provider.” Given this statutory exception, the court held that there was a conclusive disparity between MCARE’s treatment of excess and extended claims, and as a result, the two types of claims may be treated differently under the Act.
Drawing on the Act’s provisions regarding extended claims, notably Sections 712 and 715, the court held that such provisions each encompassed a different per occurrence aggregate limit. Such differences thereby indicated that no “borrowing” of the limits from each respective provision was intended, particularly those from Section 712, which set forth annual aggregate limits for 2002 and subsequent coverage years. On the other hand, Section 715, unlike its counterpart, Section 712, bears no mention of annual aggregate limits. Thus, because such provisions were omitted from Section 715, the court concluded that the legislature intended them not to exist, and ultimately held that “MCARE Fund’s annual aggregate liability limit is not intended to apply to extended claims.” As such, Allegheny Hospital was deemed entitled to an indemnity payment of up to $1,000,000 from MCARE for the plaintiff’s extended claim under Section 715, without any reduction of amounts previously paid by MCARE for the 1998 coverage year.
The court rejected MCARE’s argument that a failure to adopt its own interpretation of the MCARE Act would lead to an increase in MCARE’s payment and assessment on participating health care providers. According to MCARE, such action would delay the gradual “phasing out” of the MCARE Fund originally intended by the Legislature. Notwithstanding these concerns, the court held that its own statutory construction would control over MCARE’s alleged public policy implications.
by Mark Bauman | Apr 22, 2023 | Legal News, Medical Malpractice
United States District Court Judge William H. Yohn, Jr. recently had the opportunity to consider whether expert testimony in a medical malpractice action should be precluded on the basis of Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow Pharmaceuticals. The case, Ellison v. United States, 753 F. Supp. 2d 468 (E.D. Pa. 2010), alleging negligence by dentists at the Philadelphia Veterans’ Medical Center, was before Judge Yohn on the basis of the Federal Tort Claims Act. Accordingly, the United States substituted itself for the named defendants and has assumed defense of the case.
The plaintiff, Christopher Ellison, experienced a debilitating stroke shortly after undergoing a tooth extraction. During the extraction, Mr. Ellison’s blood pressure dropped several times. Each time, the procedure was paused, but continued after Mr. Ellison’s blood pressure returned to an acceptable level. In support of his claims, Mr. Ellison produced expert reports by Stuart Super, DMD on the standard of care, and Scott Kasner, MD on causation.
Dr. Super opined that the dentist who performed the extraction violated the standard of care by continuing the extraction in the face of multiple episodes of hypotension without obtaining a medical consult and by failing to place Mr. Ellison under medical supervision following the procedure. The United States sought to preclude the testimony of Dr. Super on the basis that it was not reliable and not relevant on the basis of Daubert and its progeny.
First, the United States argued that Dr. Super could not establish that his opinions reflected the standard of care generally accepted by oral surgeons as opposed to his own personal beliefs. Judge Yohn held that the deposition testimony cited by the defendant in support of this argument was not dispositive. Taken as a whole, Dr. Super demonstrated that he was familiar with the standard of care based on his many years of practice in the field.
Second, the United States argued that Dr. Super could cite to no medical literature which supported his opinions. Instead, the defendant argued, Dr. Super’s opinions were contradicted by a leading dental text. Again, Judge Yohn cited to Dr. Super’s extensive experience managing similar patients, teaching students, and examining candidates for the American Board of Oral and Maxillofacial Surgery. The Court noted that Dr. Super did rely on medical literature and otherwise explained his disagreement with the literature relied on by the defendant. Judge Yohn stated, “the question is not whether Dr. Super’s opinions are correct but whether those opinions are based on ‘good grounds.’” He found that they were. He also found that Dr. Super’s opinions were relevant to the plaintiff’s claims.
The defendant also sought to preclude the opinion of Dr. Kasner that the hypotension experienced by Mr. Ellison during the extraction contributed to the development and extent of his stroke. The United States argued that Dr. Kasner’s opinion regarding the subtype of stroke suffered by Mr. Ellison was unreliable because Dr. Kasner, who was Mr. Ellison’s treating neurologist, did not perform a commonly used diagnostic technique for classifying stroke subtype. Dr. Kasner testified that he reached his conclusion by performing a differential diagnosis. The Third Circuit, Judge Yohn wrote, has repeatedly held that a differential diagnosis is a reliable methodology; a doctor is not required to rule out all alternative causes of a patient’s illness. Finally, the United States argued that Dr. Kasner’s testimony should be excluded because he could not rule out that first unavoidable episode of hypotension was the cause of Mr. Ellison’s stroke. Judge Yohn accepted the plaintiff’s argument that he could satisfy his burden in this regard by merely showing that the defendant’s negligence increased his risk of harm. Therefore, Dr. Kasner did not need to identify which episode of hypotension caused the stroke.
Accordingly, Judge Yohn denied the defendant’s motion to preclude the plaintiff’s experts and the accompanying motion for summary judgment which was based on the preclusion of one of both of Plaintiff’s experts. In allowing the case to proceed to trial, Judge Yohn stated that “The issues raised by defendants are, of course, relevant for cross-examination at trial and consideration by the fact-finder in evaluating the testimony of the various expert witnesses.”
by Mark Bauman | Apr 21, 2023 | Legal News, Medical Malpractice
In Barrick v. Holy Spirit Hospital, Sodexho Management, Inc., et al., Carl Barrick was injured on the property of Defendant, Holy Spirit Hospital, when a chair he was sitting on in the hospital cafeteria collapsed on March 29, 2006. Barrick filed suit against defendants on June 18, 2007. During the course of litigation, Defendant Sodexho Management, Inc. served a subpoena on Barrick’s treating physician, for the purpose of obtaining his medical records. In response, the practice group to which the physician belonged stated that it would produce Barrick’s file, but otherwise would exclude any materials which were not generated for the purposes of Barrick’s treatment. Notably, Barrick’s treating physician was also serving as plaintiffs’ expert witness. Sodexho thereby filed a motion to compel to enforce the subpoena.
Following an in camera review of the pertinent correspondence between the physician and Barrick’s attorney, the trial court entered an order granting Sodexho’s motion to enforce the subpoena on October 16, 2009. Following an appeal by Barrick, the Superior Court affirmed the trial court’s order on September 16, 2010. Barrick thereafter sought reargument en banc. On November 19, 2010, the Superior Court entered an order withdrawing the panel’s opinion and ordering reargument. On November 23, 2011, an en banc panel for the Superior Court reversed and remanded.
Despite the “general parameters” for discovery outlined in Pa.R.C.P 4003.1, the court noted that Rule 4003.5 “should be read to restrict the scope of all discovery from non-party witnesses retained as experts in trial preparation.” According to the court, Rule 4003.5(a)(1) “narrowly defines the substantive inquiries that a party may require an opposing expert to answer in an interrogatory,” as “a party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion.” Referencing its 2006 opinion in Cooper v. Schoffstall, the court noted that parties must show cause and obtain a court order to obtain any additional discovery of testimony by an expert witness “other than [the] narrowly defined set of interrogatories” described in 4003.5. Furthermore, as the information sought by defendant’s subpoena qualified as “further discovery by other means,” the court held that the under Rule 4003.5(a)(2), a court order should have been obtained before Sodexho’s request was made.
The court held that the information sought in Sodexho’s subpoena exceeded the permissible scope of discovery in two ways. First, while Sodexho’s subpoena was intended to obtain discovery directly from Barrick’s expert witness, 4003.5(a)(1) “does not authorize any party to discover any written document directly from an expert witness.” Second, in light of the foregoing analysis, the court determined that Sodexho’s request for correspondence between plaintiffs’ attorney and their expert witness ultimately fell outside the permissible scope of Rule 4003.5(a)(1).
The en banc opinion also discussed Rule 4003.3 and the Explanatory Comment regarding attorney work product. Specifically, the court noted that while the work product doctrine is not absolute, the privilege only surrenders to the need for discovery when the attorney’s work product itself becomes relevant to the action. Moreover, under Rule 4003.5(2) cause must be shown demonstrating why the privilege must yield to the need for discovery. In Barrick, the court found that the correspondence at issue was not relevant to the action, and thus concluded that Pa.R.C.P. 4003.3 served as a separate and independent basis for the decision.
The holding in Barrick was accompanied by a concurring and dissenting opinion by Judge Bowes. Specifically, Bowes supported the majority’s analysis of permissible expert discovery under Rule 4003.5, but took exception to the “blanket work-product protection to all communications” pursuant to Rule 4003.3. According to Judge Bowes, it was improper to impose attorney work product protection with regard to all communication between Barrick’s attorney and his expert, as Rule 4003.3 only prohibits disclosure of an attorney’s mental impressions which, Bowes noted, may not necessarily be contained in the communication protected from discovery. Furthermore, Judge Bowes wrote that because an expert witness is not an “attorney, consultant, surety, indemnitor, insurer[, ]agent,” or other entity specified under Rule 4003.3, communication from an expert witness is not entitled to protection under Rule 4003.3.
by Mark Bauman | Apr 20, 2023 | Legal News, Medical Malpractice
In a three-judge panel’s decision filed on September 16, 2010, the Superior Court in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, et al. affirmed the trial court’s order of October 16, 2009, which granted the discovery and production of correspondence between counsel for Appellants and Appellants’ treating physician and designated expert witness for trial.
Appellants filed suit against Appellees when Appellant was injured when a chair collapsed underneath him in the cafeteria at Holy Spirit Hospital. Appellant received care from his treating physician and designated expert witness shortly thereafter. During discovery, Appellees served subpoenas to procure Appellant’s medical file, including written correspondence between Appellant’s counsel and Appellant’s treating physician which pertained to the physician’s role as the designated expert in the case. After an in camera review of the correspondence, the trial court entered an order directing production of the requested documents.
In reviewing the order of the trial court, the Superior Court turned first to Appellee’s contention that Appellant’s failure to object to the subpoenas with 20 days of service constituted waiver of objection. Drawing on its decision in McGovern v. Hospital Service Association, 785 A.2d 1012 (Pa.Super. 2001), which, describing the court’s reluctance to compel any privileged discovery, held that such a failure to object within the prescribed time period did not automatically waive the right to object, the court determined that Appellants had indeed objected to the subpoenas at issue when they realized that privileged information was a potential target of Appellee’s request. As such, the court declined to find any waiver on the part of Appellants.
Turning next to the merits of Appellant’s appeal, the Superior Court sought to reconcile the apparent conflict between PA Rule 4003.3, which prohibits discovery of the mental impressions of a party’s representative in preparation for litigation, and 4003.5, which requires disclosure of the substance of facts and opinions underlying a testifying expert’s conclusions. The court ultimately held that if an expert witness is being called to advance a party’s case-in-chief, the expert’s opinion and testimony may be impacted by correspondence with the party’s counsel. Thus, the attorney’s work-product doctrine must yield to the discovery of those communications.
Deeming Appellant’s request to conduct an in camera inspection of the correspondence as impractical, the Superior Court justified its holding by claiming that the attorney work product privilege is “not sacrosanct.” Rather, according to the court, Appellants’ counsel could not reasonably expect his work product to remain privileged when Appellees were undoubtedly entitled to discover, under PA Rule 4003.5(b), the substance and grounds for the testifying expert’s opinion. Ultimately, discovery of such information was deemed necessary to test the weight and veracity of the expert’s conclusions. As such, the court concluded that the medical records already produced by Appellants did not contain all the information upon which the expert had relied, as direction from counsel may very well have acted as an additional basis for the expert’s opinion. As a result, the order of the trial court was upheld and the communications were deemed discoverable.
On November 19, 2010, the Superior Court withdrew the foregoing opinion, granting a petition for en-banc re-argument.
by Mark Bauman | Apr 19, 2023 | Legal News, Medical Malpractice
The Pennsylvania Superior Court, in a 2006 ruling, held that a nurse was qualified to offer expert testimony in Freed v. Geisinger Medical Ctr, 607 Pa. 225, 5 A.3d 212 (2010).
The Pennsylvania Supreme Court considered Freed in June of 2009 and the question of whether a nurse may provide expert testimony on the issue of medical causation. The Superior Court in its opinion took great care to distinguish the facts of Freed from Flanagan v. Labe, 690 A.2d 183 (Pa. 1997), which held that nurses are prohibited from making medical diagnoses on the basis of the Professional Nursing Law, after consideration of the merits of stare decisis, the Supreme Court went right at Flanagan and overturned its prior ruling.
In September of 2010, The Pennsylvania Supreme Court reaffirmed its earlier ruling which overruled Flanagan. The Court determined that the issue of whether Flanagan should be overruled had not been waived by the plaintiff when a chief issue before the Superior Court was whether Flanagan could be distinguished from the instant case. Furthermore, the Supreme Court is not prevented from sua sponte overruling an incorrect decision.
On the question of whether it was proper to overrule Flanagan, the Court held that the defendant had presented no new arguments. Accordingly, the Court reaffirmed its prior decision.
