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 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.
by Mark Bauman | Jun 16, 2023 | Legal News, Medical Malpractice
The following is an update to an earlier posting, found HERE.
In an unreported memorandum opinion, Judge J. Brian Johnson denied a defendant physician’s motion for summary judgment and found that the defendant physician owed a duty of care to a non-patient where the disease at issue was potentially deadly absent medical intervention and is inherited 50% of the time by the patient’s children. In Polaski v. Whitson,[1] the decedent’s estate brought a medical malpractice suit against the defendant physician, Dr. Whitson, who treated the decedent’s father, Raymond Polaski. In 2008, Mr. Polaski underwent an electrocardiogram (EKG) as part of a physical conducted by Dr. Whitson. Plaintiffs argued that the EKG should have revealed certain results that would have led Dr. Whitson to order additional testing, which would have likely uncovered that Mr. Polaski suffered from hypertrophic cardiomyopathy. Hypertrophic cardiomyopathy is the heredity condition that ultimately caused the death of the decedent, Mr. Polaski’s son. Plaintiffs argued that, had Dr. Whitson ordered additional testing and diagnosed Mr. Polaski with hypertrophic cardiomyopathy, he would have also informed Mr. Polaski of the need to inform his children, including the decedent, regarding the risk of inheriting the genetic condition from Mr. Polaski.
In reaching his decision, Judge Johnson looked to the following factors enumerated in Althaus ex rel. Althaus v. Cohen:[2] (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. The court also compared prior appellate court cases including Matharu v. Muir[3] and Seebold v. Prison Health Services[4], and found that a duty of care is owed to non-patients “as the risk of harm to those third persons increases in severity and foreseeability and the class of third persons falling within the potential orbit of harm becomes increasingly focused, foreseeable and identifiable.” In doing so, the court found that Dr. Whitson owed a duty to advise the decedent, a non-patient who suffered from hypertrophic cardiomyopathy, stating that “the nature of the risk is highly foreseeable in the medical community and it is essential that the information be disseminated by the physician.”
The ruling in Polaski, as well as the appellate court cases, demonstrates the case-by-case nature of the determination regarding third-party beneficiaries and a duty of care owed by a defendant physician. It is unclear whether the appellate courts will impose a definitive rule in this regard, but in the meantime, a duty of care owed by a physician to a non-patient will likely be imposed when the risk of harm is foreseeable and identifiable.
[1] Court of Common Pleas, Lehigh County No. 2011-C-2583 (memorandum opinion, June 30, 2015).
[2] 562 Pa. 547 (2000) (holding that a psychiatrist does not owe a duty of care to non-patient parents of a child patient who the child accused of sexual molestation and later rescinded).
[3] 86 A.3d 250 (Pa. Super. Ct. 2014).
[4] 618 Pa. 632 (2012).
by Mark Bauman | Jun 15, 2023 | Legal News, Medical Malpractice
In Shinal v. Toms, 2015 Pa. Super. 178 (Aug. 25, 2015), The Pennsylvania Superior Court affirmed the trial court’s decision not to strike four prospective jurors for cause based on their relationship with defendant medical facilities because plaintiff-appellants failed to demonstrate prejudice. The Superior Court further held that the jury may consider communication with defendant physician’s staff in determining existence of informed consent.
Plaintiff-appellants’ claims involved the surgical removal of a benign brain tumor from plaintiff patient. Plaintiff patient and her husband sued defendant physician; defendant medical center; and defendant clinic alleging a lack of informed consent for the procedure. Defendant physician asserted that he provided both aggressive and less aggressive approaches for treating the tumor, but that in his opinion more aggressive surgery was more beneficial in the long-term.
As the matter proceeded to trial, the parties were unable to empanel a jury because too many of the prospective jurors were either employed or insured by some of the medical facility defendants. In a second round of jury selection, the trial court permitted the parties to question the prospective jurors regarding their relationship with the medical facility defendants. Four jurors identified a relationship with the medical facility defendants but stated that they could render a fair and impartial verdict. Specifically, some stated that the medical facility defendants were so large that they would unlikely be affected by a single judgment or that medical malpractice insurance likely covered the claims.
At the conclusion of the trial, the court granted the medical facilities defendants’ Motion for Partial Summary Judgment and dismissed plaintiffs’ claims against them because the only theory on which plaintiffs predicated liability was lack of informed consent, which was the sole duty of defendant physician. The jury subsequently returned a verdict in favor of defendant physician and against plaintiffs. Plaintiff-Appellants appealed asserting that the trial court should have presumed prejudice and stricken the four jurors at issue for cause; erred in its jury instruction regarding informed consent; and improperly admitted the signed informed consent form.
The Superior Court held that plaintiff-appellants provided no evidence to support their claim of prejudice with regard to the prospective jurors and that any relationship was attenuated and largely contradicted by the jurors themselves. The Superior Court declined to follow the plurality decision in Cordes v. Assocs of Internal Med., 87 A.3d. 829 (Pa.Super. 2014), in holding none of the challenged prospective jurors had a close relationship with participants in the litigation on which prejudice must be assumed.
On a separate issue, the Superior Court held that the trial court properly permitted the jury to consider information given by appellee-physician’s staff in determining the informed consent issue. Although the MCARE Act was enacted after the precedents established in Foflygen v. Allegheny Gen. Hosp., 723 A.2d 705 (Pa.Super. 1999) and Bulman v. Myers, 321 Pa.Super. 261 (Pa.Super 1983), the MCARE Act did not preempt the principals set forth therein. Moreover, the Superior Court held the purposes of MCARE are better served by the encouragement of the dissemination of information regarding prospective surgery, which implicitly includes communication with physician staff.
Plaintiff-appellants’ also challenged the trial court’s denial of their motion to preclude reference to the informed consent form plaintiff patient signed. However, the Superior Court affirmed the trial court’s decision to permit reference to the signed informed consent form because Plaintiff-appellants offered no legal justification to preclude the form.
by Mark Bauman | Jun 14, 2023 | Legal News, Medical Malpractice
A unanimous three-judge panel of the Pennsylvania Superior Court reversed and remanded a Lancaster County Court of Common Pleas decision, holding that Plaintiffs-Appellants presented a prima facie case that their infant child’s risk of harm was increased by six treating physicians who failed to report suspected abuse, despite the fact that the Child Protective Services Law (“CPSL”) lacks an explicit civil remedy. The Pennsylvania Superior Court held that regardless of whether the legislature intended the right to a private action under the CPSL, it certainly did not intend to preclude civil redress for violations so severe that they would otherwise amount to criminal conduct.
In K.H., ex rel. H.S. v. Kumar (2015 PA Super 177), defendant physicians participated in the examination and treatment of the child on various occasions and failed to identify or report his injuries as signs of child abuse. The infant was eventually discovered in his crib unresponsive due to cranial hemorrhaging after being shaken by his father. His father was subsequently convicted of felony child abuse. The infant sustained permanent brain damage, seizures, physical and neurodevelopmental deficits, and other physical injuries.
One defendant physician expressed concern of child abuse after discovering rib fractures but concluded that the injury was likely related to the child’s premature birth. Another defendant physician allegedly accused the child’s parents of abuse, but later denied making any accusations. A third defendant physician noted a rash or bruise suspicious of abuse, but after speaking with the primary treating physician cancelled further tests.
The child’s mother and stepfather brought negligence claims against the primary treating physician and his medical offices for failing to recognize, treat, and report child abuse pursuant to the CPSL. The CPSL does not expressly provide a right to a private action, nor does it immunize those who fail in their reporting obligations. Plaintiffs presented evidence from two pediatricians who opined that pediatricians must recognize, diagnose, and report signs of abuse. Upon Defendants’ Motion for Summary Judgment, the trial court dismissed all claims on the basis that the CPSL lacked an express provision providing for a medical malpractice claim for failure to report child abuse.
In overturning the trial court’s decision, the Superior Court held that the trial court applied too rigid of a standard in finding that Plaintiffs’ evidence of causation warranted dismissal and that it would be untenable to suggest that Plaintiffs-Appellants failed to adduce sufficient evidence to create a genuine issue of material fact that the physicians breached the standard of care. The Superior Court held that Plaintiffs-Appellants’ claims should be treated as asserting common-law claims without reference to the CPSL, specifically medical malpractice. The validity of claims in the case should be determined by a jury based on the applicable standard of care established by the physician-patient relationship.
by Mark Bauman | Jun 13, 2023 | Legal News, Medical Malpractice
The Superior Court of Pennsylvania recently affirmed a Montgomery County Court of Common Pleas’ decision granting summary judgment in favor of appellees regarding whether or not the appellants’ execution of a release barred them from subsequently suing for medical malpractice. The Superior Court relying on Buttermore v. Aliquippa Hospital found that it did.
Several years prior to the filing of the present action, the appellants participated in a mass tort litigation related to appellant-wife’s use of hormone replacement therapy. The mass tort litigation took place in 2004. Appellant-wife took hormone replacement drugs from 1990 to 1998; she was subsequently diagnosed with cancer in 2002, by appellee-doctor. The appellants filed the medical negligence action at issue in 2011. In 2002 appellee-doctor performed a partial mastectomy with axillary dissection and sentinel node identification on appellant-wife. Following this procedure, appellant-wife experienced pain and discomfort for eight years, but continued under the care of appellee-doctor. In 2010 appellee-doctor located and removed a surgical sponge that was left behind in the 2002 surgery.
In 2013 the trial court granted summary judgment in favor of all the defendants and dismissed the appellants’ action. The court found that the claims were barred by the terms of the release they had executed in relation to the settlement of the mass tort litigation. The appellants raised several issues on appeal.
The appellants argued that the trial court inappropriately relied on Buttermore to enforce the release against them because there was no causal connection between the hormone replacement therapy and the appellant’s breast cancer. They also argued there was no specific event to release and that they did not intend to release the appellees when they executed the release. The Superior Court found these claims to be meritless. The Court reasoned that the plain language of the release must be given its full effect. It is not relevant that the authority cited by the appellant relies on incidents where the releases cite a particular event. The release signed by the appellants does not specifically require a causal link between ingestion of hormone replacement drugs and possible later claims. The application of the release was not limited to injuries sustained as a result of ingestion of the hormone replacement drugs, it was more general, and applied to “the facts, events, and incidents that gave rise to or related in any way to this Civil Action.” The Court determined that this language clearly includes the medical malpractice action alleged to have occurred during appellant-wife’s surgery. If appellant-wife had not developed breast cancer she would not have had reason to join the mass tort litigation, therefore, the breast cancer clearly falls within the language of the release.
The appellants also argued that they never intended to release the appellees and that it would not make sense for them to release a party they had just filed suit against. The Court noted that Pennsylvania uses a two-prong test to construe the effect of a release. First the court must look at the effect of a release using the ordinary meaning of its language, and second, interpret the release as covering only such matters to fairly have been with within contemplation of the parties when the release was given. The trial court accurately applied the first component and considered the ordinary meaning of the release’s language, but did not consider the second prong related to the contemplation of the parties. Even though the trial court did not consider the contemplation of the parties the Court reasoned that because the appellee-doctor’s alleged negligence had already occurred at the time the release was executed, the alleged malpractice was within the appellants’ contemplation at the time the release was executed. Therefore, the second prong was satisfied.
Ultimately, the Court found that the release executed by appellants in relation to the mass tort litigation barred any claims against appellee-doctor for medical malpractice, despite the fact that a surgical sponge was left inside her for eight years.
