by Mark Bauman | May 24, 2023 | Legal News, Medical Malpractice
An evenly split Pennsylvania Supreme Court recently upheld the Superior Court’s 2011 finding that the Pennsylvania Rules of Civil Procedure prohibited an orthopedic group from supplying correspondence between a plaintiff’s attorney and the physician who treated the plaintiff and then was later retained as an expert witness. The six Supreme Court justices who participated in the decision cited tension between the attorney work-product privilege scope and expert witness disclosures; however, they were divided as to whether the procedural rules supported a clearly defined—or “bright-line”—rule barring discovery of such communications. As a result, the Superior Court’s decision stands.
The underlying case, Barrick v. Holy Spirit Hospital of the Sisters of the Christian Charity, et al., involved a plaintiff who allegedly suffered a spinal cord injury when a chair in the hospital’s cafeteria collapsed beneath him. The plaintiff sought treatment from an orthopedic surgeon who he later hired as his trial expert. During the course of discovery, the co-defendant management company subpoenaed the surgeon’s office for the plaintiff’s medical records. The office informed the management company that it would produce the records but would withhold information unrelated to the plaintiffs’ treatment. The management company filed a motion to compel the office to produce the entire file. In response, the office argued that the withheld materials were subject to protection under Pa.R.C.P. 4003.3 as trial preparation material. The trial court judge reviewed the material privately in chambers (known as in camera review) and subsequently allowed its release to the defendant.
Plaintiff appealed the decision to the Superior Court. Initially, a three-judge panel agreed with the trial court judgment. Plaintiff sought an en banc reargument and, on November 23, 2011, the Superior Court reversed the panel’s decision. Newly appointed Supreme Court Justice Correale Stevens had sat on the en banc panel and thus recused himself when the case was brought before the Supreme Court in August 2013.
Justice Max Baer authored an opinion joined by Justices Debra Todd and Seamus McCafferey in support of the Superior Court’s decision. Justice Baer wrote that Pennsylvania Rules of Civil Procedure 4003.3 and 4003.5 “attempt to balance the competing policies of promoting the truth-determining process through liberal discovery but also protect attorney work product from discovery to encourage efficient and effective client representation.” As such, “it is preferable to err on the side of protecting the attorney’s work-product by providing a bright-line rule barring discovery of attorney-expert communication.” A bright-line rule is also supported by a proposed amendment from the Court’s Procedural Rules Committee to Rule 4003.5. Justice Baer highlighted this proposal for its stance that Pennsylvania practice does not typically encompass seeking these communications to begin with. Further, the information sought could be procured through interrogatories and, if appropriate, upon cause shown to the trial courts. Expert witnesses may also be cross-examined about their opinions.
Concerning the in camera process to weed out discoverable substantive facts, Justice Baer wrote that failing to establish a bright-line rule would lead to unnecessary delay in the discovery process. “Moreover, the in camera review process could potentially result in the erroneous disclose of attorney-expert witness correspondence, which will not only invade protected core work product but, in a worst case scenario, would also constitute prejudicial error necessitating an appellate court’s grant of a new trial with all the inefficiencies, burdens, and costs attendant thereto.”
Justice Thomas Saylor, writing for the dissent, disagreed and wrote that, “if a communication contains a mixture of such work product and other material, both sets of policy objectives are served if that portion of the document consisting of core work-product is protected, while the remainder is subject to discovery.” He held that the Pennsylvania Rules of Civil Procedure allow for broad discovery and “simply do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert.”
by Mark Bauman | May 24, 2023 | Legal News, Medical Malpractice
New York Presbyterian Hospital and Columbia University recently agreed to pay a combined total of $4.8 million for their failure to secure thousands of patients’ electronic protected health information (“ePHI”) held on a shared network. This fine is the largest ever Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) settlement to date.
Although two separate entities, New York Presbyterian and Columbia University operate under a joint arrangement whereby Columbia faculty serve as attending physicians under the banner of “New York Presbyterian Hospital/Columbia University Medical Center.” The two institutions also share a data network and firewall that both entities maintain. The U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) investigated the matter and determined the breach occurred when a Columbia physician attempted to deactivate a personally owned computer server on the shared network, which contained patient ePHI. In doing so, the ePHI became accessible through the internet, even through search engines.
The OCR investigation began when the entities received a complaint in September 2010 from an individual who found the ePHI of his deceased partner, who had been a patient at New York Presbyterian, on the internet. The exposed ePHI of nearly 7,000 patients included their status, vital signs, medications, and laboratory results. The two institutions submitted a joint breach report on September 27, 2010 detailing the disclosure and notified the affected individuals personally, as well as media outlets. In a joint statement, New York Presbyterian and Columbia University provided that there was no evidence of any inappropriate use of the disclosed information.
In addition to the breach, the OCR determined that New York Presbyterian and Columbia University both lacked sufficient software and security safeguards to prevent such a breach from occurring. Further, neither entity had performed a thorough risk analysis to identify all the systems that have access to ePHI. Thus, they had never developed an adequate risk management plan to address potential confidentiality breaches. New York Presbyterian also had insufficient policies for authorizing access to its databases and failed to comply with its own policies on information access management.
Due to the breach and these deficiencies, New York Presbyterian agreed to pay $3,300,000 in fines and Columbia University agreed to pay $1,500,000. Both entities will conduct a risk analysis, revise their risk management plans and policies, and provide the OCR with updates as to their progress as part of their settlement.
Acting Deputy Director of Health Information Privacy for OCR, Christina Heide, advised that entities who share joint compliance arrangements also “share the burden of addressing the risks to protected health information.” She further provided that this case should warn healthcare institutions about how crucial their data security is when managing information systems.
by Mark Bauman | May 23, 2023 | Legal News, Medical Malpractice
In reviewing its ruling in Matharu v. Muir, 29 A.3d 375 (2011), the Pennsylvania Superior Court unanimously held that physicians owe a duty of care to their patients’ unborn children. The en banc panel distinguished this finding from the 2012 Seebold v. Prison Health Services case in which it held that physicians do not have a third-party duty of care to warn corrections officers that the inmates they watch have communicable diseases.
The Supreme Court vacated the Superior Court’s 2011 ruling in Matharu last year and asked it to review its analysis in light of the fact it declined to extend a third-party duty to the physicians in Seebold. In response, Judge Christine L. Donohue authored a lengthy opinion that delineated the relationships between defendant doctors and third-party non-patients in Seebold and between defendant physicians and readily foreseeable future children in Matharu.
In the underlying case, a woman learned she had Rh-negative blood during her first pregnancy. Her husband had Rh-positive blood, meaning a child they conceived could have Rh-positive blood as well. The fetus’ Rh-positive blood could enter the mother’s bloodstream, which could trigger a reaction known as isoimmunization in which the mother’s body rejects the fetus. To prevent that from happening, her obstetricians injected her with RhoGAM.
The plaintiff-mother came under the care of the defendant-physicians during her second pregnancy in 1998. These physicians did not administer RhoGAM and she became isoimmunized during her third trimester. While pregnant in 2005, the mother and infant encountered complications that required an emergency Cesarean section. The child died two days after birth. As a result, the parents sued the defendants for failing to administer RhoGAM during the second pregnancy, thus creating a danger for future children.
The physicians argued that the parents could not establish that they owed the infant a duty of care. The Superior Court held otherwise and stated that the defendants knew that administering RhoGAM protects future, unborn children. Accordingly, the plaintiff-parents’ future children fell within a class whose life depended on the treatment rendered by the defendants.
In reaffirming the Superior Court’s 2011 ruling, Judge Donohue held that the harm occurred during the plaintiff-mother’s patient-physician relationship as a contrast to the relationship the defendant physicians had to corrections officers in Seebold. Thus, Judge Donohue explained, the Superior Court did not create a new duty of care in Marathu but rather relied on the well-accepted standard articulated in the Restatement (Second) of Torts. Section 324A provides that a person who renders care to another that is necessary for protecting a third person is subjected to liability to the third person for harm that arises from failing to exercise reasonable care. In applying that rule to Marathu, the deceased infant fell into this category as a future third person harmed by the defendant-physicians’ failure to administer the medication needed to prevent harm to the plaintiff-mother’s future, unborn children.
by Mark Bauman | May 22, 2023 | Legal News, Medical Malpractice
As previously reported on obrlaw.com, on May 23, 2012, the Supreme Court of Pennsylvania granted petitions for allowance of appeal filed on behalf of a defendant physician and her practice group, to address the Superior Court’s analysis of the “error in judgment” defense in the underlying case of Passarello v. Grumbine, M.D., et al., 29 A.3d 1158 (Pa. Super. 2011).
On February 7th, 2014, a divided Pennsylvania Supreme Court prohibited the “error in judgment” jury instruction from medical malpractice cases as it creates a risk of clouding jurors’ understanding of the applicable standard of care. Previously, this defense supported the belief that physicians should not be liable for errors of judgment when their care met the standard of care. The Pennsylvania Superior and Supreme Court have both found that this defense injects a subjective view into what should be an objective inquiry into whether a defendant physician was negligent.
The case underlying the Supreme Court holding stems from the death of a two-month-old infant in 2001. The child’s parents sued their pediatrician, who had seen the infant multiple times after his birth and diagnosed him with gastroesophageal reflux. The parents eventually brought their son to the emergency room where he died of an acute heart infection.
During trial, plaintiffs’ counsel failed to object to the error in judgment jury instruction and the jury found for the defense. As a result, the plaintiffs appealed to the Superior Court, which granted a new trial. The physician defendant and her practice petitioned to the Supreme Court to review the Superior Court’s analysis of the error of judgment defense, as well as the retroactive application of its decision in Pringle v. Rapaport, 980 A.2d 159 (Pa. Super. 2009). The Pringle decision had denounced the defense in medical malpractice actions based on its potential for confusion. The Supreme Court granted their petition in 2012.
The Supreme Court’s four-justice majority opinion found that appellants failed to demonstrate that the defense was necessary when others were available. For example, the “two schools of thought” defense remains as an option to illustrate a physician’s decision-making. The Court further noted that its standard civil jury instruction committee had declined to include the error in judgment defense as a proposed instruction because of its potential to confuse jurors’ understanding of how to weigh the evidence. Finally, the court also found that the Superior Court’s reliance on Pringle was proper and that there was no reason to overturn its conclusion that the error in judgment defense was ill-suited for medical malpractice claims.
Justice Edward G. Saylor authored a dissenting and concurring opinion against applying Pringle retroactively to the instant matter. He felt it should only be applied proactively. Chief Justice Ronald D. Castile and Justice J. Michael Eakin also wrote dissents. Chief Justice Castille wrote that there were times when the error in judgment instruction could be properly used in cases where the defendant had more than one viable treatment option and his decision to pursue one over the other fell within the standard of care, but nonetheless resulted in an injury or death.
by Mark Bauman | May 21, 2023 | Legal News, Medical Malpractice
The Superior Court recently remanded a medical malpractice case back to the Clarion County Court of Common Pleas after ruling that the jury erroneously found a clerk’s admitted filing error was not negligent.
In writing on behalf of the unanimous three-judge panel, Judge Anne E. Lazurus explained that, because the file clerk’s employers admitted that she misfiled an ultrasound report and that mistake constituted a breach of the standard of care, the defense verdict bore no rational relationship to the evidence.
The events underlying the original action began when the minor-plaintiff’s mother presented for a diagnostic ultrasound during her third trimester of pregnancy. The ultrasound showed a large cyst on the fetus’ right kidney. Before the report made its way to the defendant obstetricians’ office, the mother went into labor and delivered a baby boy. Once the ultrasound report arrived at the office, a file clerk placed it in the wrong pile of papers.
About ten days later, the parents brought their baby to the hospital because the baby was lethargic and vomiting. An abdominal ultrasound revealed the kidney cyst, and he was transferred to the Children’s Hospital of Pittsburgh for an emergency surgery to correct an obstructed urethra. The parents initiated a medical malpractice suit against the radiologist, the hospital, and the obstetricians and their practice. Amongst their several charges of negligence and vicarious liability, the plaintiffs contended that the obstetricians failed to maintain proper procedures for obtaining radiology reports. The jury found in favor of the obstetricians. The plaintiffs appealed.
In the opinion, Judge Lazurus agreed with the plaintiffs that the obstetricians’ admission that their staff member was negligent required that the defense decision be set aside. During their depositions and cross-examination, the physicians testified that the misplaced ultrasound report delayed their timely review of the results and constituted a breach in the standard of care. Even without an expert to opine as to the communication policies in place at the obstetricians’ practice, Judge Lazurus held that the facts mandated a finding of negligence. In doing so, she cited two Superior Court cases that found that experts are not needed to prove negligence when lack of skill or care is obvious to laypeople. As a result, the Court ordered that only the obstetrician defendants and their practice should be brought before a jury again to determine causation, liability and damages.
by Mark Bauman | May 20, 2023 | Legal News, Medical Malpractice
In an opinion issued on November 12, 2013, a three-judge panel for the Pennsylvania Superior Court held that repeated references to a patient’s consent to the surgeries at issue in a medical malpractice trial were both irrelevant and unduly prejudicial. Given the extent of these violations, the Court held that a new trial was appropriate.
The underlying case of Brady v. Urbas, M.D., et al. involved a plaintiff who brought suit against her podiatrist alleging injuries related to several surgeries performed on her by her podiatrist. The complaint set forth claims sounding in negligence and loss of consortium, the latter of which was brought on behalf of her husband.
Prior to the trial, a motion in limine was filed on behalf of the plaintiff, seeking to preclude all evidence related to the plaintiff’s consent regarding the risks of the procedures at issue. In the motion, counsel for the plaintiff argued that the issue of informed consent was not a defense to negligence and was irrelevant to the issue of whether the conduct of the defendant breached the standard of care. Moreover, counsel asserted that evidence of consent would confuse or mislead the jury, thereby resulting in unfair prejudice. The trial court denied the motion and throughout the ensuing trial, numerous references were made to the plaintiff’s consent to the risks associated with the procedures at issue, including a copy of the consent form which was sent back with the jury during deliberation. A verdict was subsequently returned in favor of the defendant. Counsel for the plaintiff then filed post trial motions for a new trial, which were denied.
Thereafter, an appeal was filed with the Superior Court on behalf of the plaintiff, alleging that the trial court had abused its discretion by allowing evidence of the consent-related material. Noting that the claim at issue was one sounding in medical negligence, and taking into account the elements required to prove this claim, the Superior Court held that evidence of informed consent had no relevance in a claim for medical negligence. Even if the evidence did hold some marginal relevance, the Court noted that such evidence could have deceived the jury into believing that the plaintiff’s injuries “simply were a risk of the surgeries and that she accepted such risks, regardless of whether [the physician’s] negligence caused the risks to occur.” Therefore, it was the opinion of the Court that the plaintiff’s knowledge of the risks associated with her surgeries, along with her consent to the same, were impermissible, and that the case was to be remanded for a new trial.
