by Mark Bauman | May 19, 2023 | Legal News, Medical Malpractice
On the morning of October 23, 2013, Senate Bill 379, also known as the “Benevolent Gesture” Bill, was signed into law by Pennsylvania Governor Tom Corbett, after unanimous approval in both the State Senate and House of Representatives.
The Benevolent Gesture Law prevents physicians’ empathetic gestures from being used as evidence in medical malpractice lawsuits. Notably, it does not prevent the use of any statements by physicians indicating negligence or fault.
In addition to gestures directed toward patients, the Benevolent Gesture Law excludes from evidence any gestures made to a patient’s representative (such as a legal guardian, attorney, or power of attorney), as well as those directed toward the relative of a patient. According to the Law, a patient’s “relative” includes his or her spouse, parent, stepparent, grandparent, child, stepchild, grandchild, brother, sister, half-brother or half-sister, spouse’s parent, or any other person with a “family-type” relationship with a patient.
by Mark Bauman | May 18, 2023 | Legal News, Medical Malpractice
An opinion from the Allegheny County Court of Common Pleas helped further shape the Peer Review Protection Act (“the Act”) analysis by focusing on hospitals’ efforts to improve the care they provide in ways that may not involve a traditional committee.
In the underlying matter, the plaintiffs alleged that the patient sustained a deep tissue injury during a hospital admission. After receiving a copy of the incident report, a registered nurse created a chronology of the patient’s treatment based on his medical records and the discussions she had with the physicians involved. Then, with the help of another nurse, she created a re-education plan. The plaintiffs sought both the chronology and the reeducation plan. The defendants, however, contended they were protected because they were created in order to improve care. Judge R. Stanton Wettick, Jr. agreed.
Judge Wettick began with addressing the Act’s purpose of protecting candid evaluations of health care providers, which requires confidentiality to allow for a comprehensive, honest assessment. Documents that contain information that can be found from original sources, such as medical records, are not given the same protections. Original sources are documents prepared solely in connection with the recording events of a patient’s treatment.
Here, however, the original source exception did not apply because the registered nurse testified that it was assumed that she would review any event on her unit, regardless of whether a supervisor directed her to do so. Judge Wettick noted that each document, “was generated for the purpose of evaluating the conduct of the medical staff and, if necessary, re-educating the staff regarding future procedures.” The fact the documents contained some information from original sources did not mean they were discoverable. Moreover, although the Act does not define the term “review organization,” Judge Wettick pointed to the Superior Court’s interchangeable use of the terms “committee” and “individual.” Accordingly, an individual may constitute a review committee on her own. Therefore, Judge Wettick found that both documents fell within the Act’s confidentiality provision based on the nurses’ desire to self-assess and re-educate.
by Mark Bauman | May 17, 2023 | Legal News, Medical Malpractice
In an order issued July 25, 2013, a Philadelphia County Court of Common Pleas judge dismissed a loss of consortium claim raised in a medical malpractice case by a same-sex couple.
The underlying case of Wolf v. Associates of Podiatric Medicine and Surgery was based on damages sustained after a metal object was left in a patient’s foot after surgery. The patient subsequently filed suit with her female partner, who set forth a claim for loss of consortium as a co-plaintiff.
Defense counsel filed preliminary objections, stating that under Pennsylvania law, a loss of consortium claim may only be brought by an individual who is married to the injured plaintiff. According to the defendants, this has been a strict rule throughout Pennsylvania precedent, as courts have traditionally dismissed claims arising out of “nonmarital cohabitation.” Since Pennsylvania law does not currently recognize marriage between same-sex couples, the defendants argued that the co-plaintiffs were not actually married, and that the loss of consortium claim was therefore invalid. While the plaintiffs argued that the consortium plaintiff, much like a married spouse, shared many of the household responsibilities such as child-rearing, payment of expenses, and assisting and comforting her partner, the court concurred with the defendants’ analysis and dismissed the loss of consortium claim.
by Mark Bauman | May 16, 2023 | Legal News, Medical Malpractice
A Court of Common Pleas judge in Monroe County granted a hospital’s protective order in part, holding that Plaintiffs may inquire about statements made by a medical quality officer to a patient concerning inconclusive results from peer-review proceedings. Plaintiffs, however, are prohibited from questioning the officer about any peer-review materials and discussions. Judge Arthur L. Zulick further held that discussing peer-review conclusions with patients does not waive the confidentiality afforded by the Peer Review Protection Act (“the Act”) to review committees.
The underlying case involved a surgery that resulted in the patient losing his left kidney. Following the hospital’s internal investigation, its chief medical quality officer met with the plaintiffs to discuss the review committee’s opinion as to what transpired during the patient’s operation. Once the suit began, Plaintiffs noticed the officer’s deposition, and the hospital responded with a motion for protective order in which it argued that the plaintiffs should be prevented from asking about the hospital’s internal review proceedings. Plaintiffs in turn contended that the chief medical quality officer’s meeting with the plaintiffs waived the Act’s confidentiality provision and thus rendered the review materials and discussions discoverable. Judge Zulick found otherwise.
Judge Zulick relied on the Superior Court’s ruling in Dodson v. DeLeo, 872 A.2d 1237 (Pa. Super. Ct. 2005) in making his ruling. In that case, the Superior Court overturned a trial court’s decision that had held that a defendant physician’s credentialing reports were not protected by the Act because that information could be found elsewhere in the patient’s medical records. In finding that the reports were indeed within the Act’s scope of protection, the Superior Court stated that “[holding] otherwise would have a chilling effect on the peer review process and would clearly run afoul of the purpose of the statute.” Id. at 1244.
As the Dodson court described, the Peer Review Protection Act was promulgated in 1974 to “facilitate comprehensive, honest, and potentially critical evaluations of medical professionals by their peers.” Id. at 1242. The Act further reflects the legislature’s determination that, “because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities.” Id. (quoting Young v. The W. Pa. Hosp., 722 A.2d 153 (Pa. Super. Ct. 1987)). As such, the Act states in relevant part that “proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider.” 63 P.S. § 425.4.
In the matter before Judge Zulick, he found that the facts before him paralleled those in Dodson. Accordingly, he held that allowing discovery of the hospital’s entire peer-review materials would undermine the Act’s intentions of safeguarding health care professionals’ ability to police themselves and conduct root cause analyses, morbidity and mortality meetings, and other confidential investigations in order to promote patient safety. Notwithstanding that finding, the plaintiffs were free to question the chief medical quality officer about his statements to them concerning the review’s determination.
by Mark Bauman | May 15, 2023 | Legal News, Medical Malpractice
In an opinion filed June 11, 2013, a three judge panel of the Commonwealth Court of Pennsylvania affirmed the State Board of Medicine’s imposition of civil penalties upon a physician for failure to maintain medical records as required by the Medical Practice Act of 1985.
In the underlying case, a physician contracted with a commercial company for the purpose of reviewing online prescription requests. Under the terms of the contract, from 2009 to 2011, the physician filled the requests based on online questionnaires completed by customers of the company. The questionnaires set forth information such as the reason for the request and the patient’s medical history. Additionally, the company also provided the physician with access to an online database that contained copies of the patients’ medical records.
During the course of his contract, the physician conducted his reviews solely from the online documents and did not print or retain in his own personal office any of the patients’ medical records, questionnaires, or files.
In April 2011, the State Board of Medicine issued an order to show cause alleging that the physician had engaged in unprofessional conduct by failing to maintain medical records relating to the patients for whom he filled prescriptions. Under the relevant provisions of the Medical Practice Act of 1985, a physician is required to “maintain medical records for patients which . . . reflect the evaluation and treatment of the patient.” 63 P.S. 422.1-422.51(a). Because the physician did not personally keep his own medical records with regard to his patients, the Board alleged that he violated the Act and in turn, imposed a $2,500 civil penalty. The physician was also required to complete ten hours of continuing education in the area of medical recordkeeping.
The physician subsequently appealed to the Commonwealth Court, stating that the Board misinterpreted the portion of the Act which addressed the maintenance of patient medical records.
On review, the court affirmed the Board’s order, holding that the pertinent section of the Act could reasonably be interpreted to require the physician to have “possession” of his patient’s medical records. While the physician argued that the Board’s interpretation of the Act ignored the realities of modern medical practice “where the employers and not the physicians maintain patient medical records,” the court noted that such circumstances were already contemplated by the Act, as part a provision excusing this requirement where the records “are retained by a health care facility.”
by Mark Bauman | May 14, 2023 | Legal News, Medical Malpractice
Following a hearing last month, the Pennsylvania Senate has passed the Benevolent Gesture Medical Professional Liability Act. Under the Act, statements and acts of contrition by healthcare providers, if made prior to the initiation of medical malpractice litigation, will be inadmissible in subsequent legal proceedings.
Formerly known as Senate Bill 379, the Act had been previously tabled in the Senate through the end of the 2012 legislative session after being passed by the Pennsylvania House of Representatives in 2011. In its original form, the Act prohibited the admission of not only benevolent gestures by healthcare providers, but also admissions of fault or negligence. While sixteen other states have already passed laws deeming such statements to be inadmissible, the bill came under fire in the Senate, as critics argued that it would have prohibited an apology by a physician who had “been on an all-night bender and who revealed that his or her mental state might have contributed to a medical error.” The Act was therefore modified to exclude admissions of fault or negligence, therefore making them potentially admissible in medical malpractice proceedings.
With a new version in place, the bill will now return to the House of Representatives for approval. Hearings are slated to be conducted sometime in the Fall of 2013.
