by Mark Bauman | May 1, 2023 | Legal News, Medical Malpractice
On April 25, 2012, the United States District Court for the Eastern District of Pennsylvania issued an opinion in Mertzig v. Booth, et al., ruling that patient plaintiff would not be allowed to present expert testimony to bolster a medical malpractice claim under res ipsa loquitur, given that she had previously certified that such testimony was unnecessary to prove her claim.
In the underlying case, plaintiff underwent a knee replacement surgery performed by defendant physician on May 29, 2007. Following surgery, the prosthetic components began to loosen, and she was informed that the prosthetic knee had actually been infected when it was initially placed into her body.
After filing suit against defendant, plaintiff filed certificates of merit under Pa.R.C.P. 1042.3(a)(3), certifying that expert testimony was not required to prove her claims against defendant. However, plaintiff subsequently produced expert reports in support of a theory of res ipsa loquitur. In response, defendant filed motions for summary judgment, contending that such testimony was barred pursuant to plaintiff’s previous certification under Rule 1042.3(a). Acknowledging that expert testimony was required to pursue her claims, plaintiff then argued that such certifications did not apply, given that res ipsa loquitur had been invoked.
On review, the court noted that according to the Note to Rule 1042.3(a), certifications that expert testimony is not required may not be revoked, except in the case of “exceptional circumstances.” Observing that plaintiff had failed to cite any case law stating that expert testimony may be used to establish res ipsa loquitur after such a certification had been filed, the court deferred to the guidance of the Note, and concluded that the discovery that expert testimony was required to support plaintiff’s claims did not qualify as “exceptional circumstance.”
Holding that plaintiff would be bound to her certification under Rule 1042.3(a)(3), the court further explained that under the elements of res ipsa loquitur, expert testimony must be presented in medically complex cases, in order to effectively eliminate alternate causal factors, such as, for example, the conduct of third persons. Notably, the expert reports submitted by plaintiff confirmed that the issues of causation were complex and not within the comprehension of laypersons. However, because plaintiff had certified that expert testimony was unnecessary, she was precluded under Rule 1042.3(a)(3) from relying on such testimony.
After analysis of the expert reports, the court concluded that the opinions therein failed to sufficiently eliminate other causes of plaintiff’s injury. Therefore, because plaintiff was ultimately unable to prove her case without or without the expert testimony at issue, the court granted the defendant’s motion for summary judgment.
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 29, 2023 | Legal News, Silicone Breast Implant Litigation
(1) Background:
In the early 1990s, numerous lawsuits were commenced in Pennsylvania against silicone breast implant manufacturers, implanting physicians and hospitals alleging that silicone breast implants caused a host of injuries including systemic disease. The Pennsylvania Supreme Court set up a Coordinating Court to manage the silicone breast implant cases. The Chairperson is the Honorable R. Stanton Wettick, Jr. from Allegheny County.
O’Brien & Ryan, L.L.P. was appointed by the Supreme Court to act as liaison counsel on behalf of all Pennsylvania Plastic Surgeons. The firm’s role involves active participation in the day-to-day management of the litigation. In addition to representing individual doctors, the firm’s liaison role allows it to represent, when necessary, all defendant plastic surgeons regarding issues that affect all of the defendant doctors on a global basis. In this representation, the firm has actively participated in the preparation of pleadings, motions and briefs as well as attending hearings and arguments. Furthermore, as liaison counsel, the firm has worked closely with the Courts and liaison counsel for the plaintiffs, manufacturer and hospital defendants to develop the current trial programs throughout the state.
After a long stay of all silicone implant litigation, due in large part to the Dow Corning Bankruptcy, the the Coordinating Court released a handful of cases in 1998 to proceed to trial. The first case, Toledo v. Mitra, M.D., proceeded to trial on July 16, 2001 against the implanting plastic surgeon in which the plaintiff claimed that the doctor failed to obtain the patient’s informed consent prior to inserting silicone gel implants. Prior to trial, Judge Wettick issued an opinion precluding plaintiffs’ experts from testifying that silicone gel caused injury and/or persistent, chronic pain after removal of the implant. The issues were therefore limited to whether the doctor informed the patient of the risks of surgery. Plaintiffs took the position that the risks of the procedure included risks associated with the implants themselves and that the plaintiff should have been told about the alternative of saline implants. Damages were sought for pain, capsular contracture, lymphadenopathy, silicone granulomas, chest wall deformity, gel bleed/migration, hematoma, scarring and disfigurement. The trial, tried by our own Daniel F. Ryan, III, Esquire, resulted in a defense verdict.
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.
