by Mark Bauman | Apr 18, 2023 | Legal News, Medical Malpractice
In Vicari v. Spiegel, M.D., et al., 605 Pa. 381, 989 A.2d 1277 (2010), the Supreme Court of Pennsylvania held that a medical oncologist was qualified under the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. sec. 1303.512 (“the Act”), to render standard of care opinions against a board-certified otolaryngologist and a board-certified radiation oncologist with respect to the specific care alleged to have been negligent.
In Vicari, the plaintiff brought suit against a board-certified otolaryngologist and a board-certified radiation oncologist, asserting that they deviated from the applicable standard of care in treating the plaintiff’s decedent for tongue cancer. Specifically, the plaintiff maintained that the defendants breached the standard of care by failing to discuss the option of chemotherapy with the decedent and failing to refer the decedent to a medical oncologist for this purpose. The plaintiff contended that the defendants’ negligence caused the decedent’s tongue cancer to metastasize, which resulted in her death.
To support his claims against the defendants, the plaintiff presented the expert testimony of a board-certified medical oncologist who had served on several tumor boards, had treated head and neck cancer patients for more than thirty years, and had conducted clinical studies designed to test new cancer drugs and treatments for more than thirty years. However, the trial court struck the medical oncologist’s expert testimony on the grounds that he was incompetent under the Act to testify against the defendants regarding the applicable standard of care because he was not board-certified in the same field as either of the defendant physicians. Because the plaintiff could not produce any expert testimony against the defendants after the medical oncologist’s testimony was stricken, the trial court subsequently entered a compulsory nonsuit in the defendants’ favor. The plaintiff later filed a motion to remove the nonsuit, but the trial court denied the motion. The plaintiff then appealed the matter to the Superior Court of Pennsylvania.
The Superior Court reversed the trial court’s order which denied the plaintiff’s motion to remove the nonsuit after concluding that the medical oncology expert was indeed qualified to testify regarding whether the defendants breached the standard of care by failing to discuss the option of chemotherapy with the decedent and failing to refer the decedent to a medical oncologist. In reaching this conclusion, the Superior Court held that the trial court committed an error of law by misconstruing the Act’s expert qualification requirements. Accordingly, the Superior Court remanded this case to the trial court for a new trial. The defendants then filed petitions for allowance of appeal to the Supreme Court, which were granted.
The Supreme Court affirmed the Superior Court’s order and opinion after concluding that the plaintiff’s medical oncology expert was qualified under the Act to offer opinions regarding the standard of care for the specific care at issue. In reaching this decision, the Supreme Court acknowledged that the General Assembly intended the MCARE Act to create a more stringent standard for the admissibility of medical expert testimony in medical malpractice actions by imposing additional requirements than those that existed under common law. Specifically, the Supreme Court observed that the Act generally requires a plaintiff’s expert witness who is called to testify on the applicable standard of care to practice in the same subspecialty as the defendant physician or in a subspecialty with a substantially similar standard of care for the specific care at issue. The Supreme Court also noted that, if the defendant physician is board-certified, the Act typically requires a plaintiff’s expert to be certified by the same or a similar board before he can offer opinions regarding whether the defendant breached the standard of care. However, the Supreme Court then stressed that the Act allows trial courts to waive the same subspecialty and same board-certification requirements if the trial judge determines that an expert witness has sufficient training, experience and knowledge to testify regarding the applicable standard of care as a result of active involvement in the defendant physician’s subspecialty or a related field of medicine.
With these principles in mind, the Supreme Court examined the trial court’s reasons for striking the expert testimony of the plaintiff’s medical oncology expert and concluded that it did so based “on the misconception that the MCARE Act mandates that, if the defendant physician is board-certified, then the testifying expert must be board-certified by the same board.” The Supreme Court then reviewed the medical oncology expert’s professional qualifications and determined that he was clearly qualified to testify against defendants “as to the specific care at issue.” The Supreme Court noted that the medical oncology expert was not asked to testify regarding whether the otolaryngologist breached the standard of care in performing surgery on the decedent or whether the radiation oncologist breached the standard of care in administering radiation therapy to the patient. Rather, the medical oncology expert was asked to testify regarding whether the defendants breached the standard of care in failing to recommend chemotherapy to the decedent or to refer the patient to a medical oncologist. The Supreme Court concluded that the medical oncology expert was certainly qualified to testify on this issue in light of his significant experience on tumor boards, his thirty plus years of clinical practice in treating head and neck cancer patients, and his other teaching and clinical experience.
Moreover, the Supreme Court expressly held that a determination that an expert practices in a field of medicine that is sufficiently related to the defendant physician’s field to allow the expert to offer standard of care testimony against the defendant cannot be established in a broad and general sense that will apply to all scenarios and claims. Rather, according to the Court, the relatedness of one field of medicine to another, under the MCARE Act, can only be considered as to “the specific care at issue.” The Court explained that “[t]wo fields of medicine may be ‘related’ with respect to certain specific issues of care, but unrelated with respect to other specific issues of care.” Therefore, the Court held that a determination of whether a medical expert is qualified to testify on the issue of standard of care against a defendant physician who practices in a different field of medicine must be made on a case by case basis. Consequently, the Supreme Court affirmed the Superior Court’s order and opinion which reversed the entry of nonsuit in the defendants’ favor and remanded the matter to the lower court for a new trial.
by Mark Bauman | Apr 18, 2023 | Legal Malpractice, Legal News
In Saffer v. Willoughby, 143 N.J. 256 (1996), the Supreme Court of New Jersey said that a negligent attorney in a legal malpractice action is responsible for the legal expenses and attorneys’ fees incurred by a wronged client in prosecuting the legal malpractice action against the negligent attorney. This case made New Jersey the only state to permit such fee switching in legal malpractice cases.
Eight years after Saffer, attorneys are still arguing over how magnanimous the justices meant to be when drafting their opinion in Saffer. A new appeal could provide this response. An attorney who won a $118,000 settlement for a legal malpractice client is asking the Appellate Division to order the negligent attorney to pay his hourly fees totaling $105,000, not just the $38,000 fee due under the contingency agreement. As a fallback, if the appeals court only provides him with the contingency fee, this attorney wants an enhancement similar to bonuses courts have awarded in employment discrimination cases to plaintiffs’ lawyers willing to tackle hard cases that advance societal goals. The attorney for the negligent attorney is cross appealing in an attempt to get the courts to repeal the fee shifting doctrine of Saffer.
Over the years, lower courts have expressed the view that some of the rules governing fee shifting in legal malpractice cases don’t appear to be logical, but those tribunals have said, in effect, that those rules have been set forth by the Supreme Court and we’re stuck with them. A Constitutional argument has also been raised on behalf of negligent attorneys. It has been argued that fee shifting violates the 14th Amendment’s Equal Protection clause because it singles out negligent lawyers as opposed to other professions. Attorneys hope that the New Jersey Supreme Court will revisit this issue and clarify the Saffer opinion.
by Mark Bauman | Apr 17, 2023 | Legal News, Medical Malpractice
In McLane v. Valley Medical Facilities, Inc., et al., Judge R. Stanton Wettick, Jr. denied plaintiffs’ motion to compel defendant cytotechnologists to testify regarding their present review of slides which they reviewed in 2003-2005.
Plaintiff-wife was diagnosed with cervical cancer in early 2006. Plaintiff alleges that defendants improperly interpreted pap smears in 2003, 2004, 2005.
At her deposition, cytotechnologist, Terry Bathory testified as to how she would screen and interpret slides and that she had in fact interpreted plaintiffs slide in 2004. Plaintiffs’ attorney then sought to have Bathory sit at a microscope and view the area of the slide that she had screened in 2004 and answer questions regarding it. Plaintiffs sought to question her regarding her customary practice in 2004 and whether having seen this particular grouping of cells would she find it suspicious enough to send it along to the pathologist. The defense objected. Plaintiffs filed this motion to compel.
The Judge held, “I am not requiring this witness to review a portion of the 2004 slide selected by plaintiffs’ counsel and answer questions, based on her review of this portion of the slide as to whether she now believes that in 2004 she erred in not providing for a further review of the slide. Such testimony is irrelevant and prejudicial and will needlessly prolong depositions of professionals in professional negligence actions.”
The Judge went on to explain that the actions taken in the 2004 viewing of this slide are undisputed. The issue now is whether the care and skill exercised by the witness in reviewing plaintiff s PAP smear fell outside the acceptable professional standards.
“A statement of the witness as to what steps she would have taken following a thorough review of a specific area of a slide selected by a third party, when she now knows the outcome, is not only irrelevant to the issue of whether the witness breached the standard of care but is also very prejudicial.” The controlling issue for the liability phase of the trial will be whether the cytotechnologists acted within the appropriate standard of care when reviewing a slide of an apparently healthy woman. “This will be the issue that the experts for both parties will address. This is the testimony upon which the jury should be basing its decision.”
“The witness may be questioned about all decisions that he or she made at the time he or she was furnishing services. The witness can be asked about what this witness did and did not do and why this witness did not take other actions. However, the witness who will not be offering expert testimony cannot be asked to make an after the fact evaluation of his or her work.”
by Mark Bauman | Apr 17, 2023 | Legal Malpractice, Legal News
The Pennsylvania Superior Court, in a matter of first impression, has held that the negligence of a client may be raised as an affirmative defense in a legal malpractice action that is based upon negligence. Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004).
The Gorskis were real estate developers who sued their lawyer in relation to services provided in a significant real estate transaction. It was alleged that the attorney was negligent in drafting a land sale agreement and in the litigation that subsequently arose when the Gorskis sought rescission of the agreement. The Gorskis also sued for breach of contract alleging that the attorney breach his contractual duty to adequately represent them. At trial, the jury found that the lawyer was negligent. The jury did not find that the lawyer had breached any contractual obligation and found that the Gorskis were contributorily negligent in relation to the creation of the land sale deal with the buyer. While contributory negligence will be a complete bar to a plaintiff’s recovery, the trial court entered judgment notwithstanding the verdict in favor of Plaintiff. Cross appeals were filed.
The Superior Court, after analyzing cases from other states, agreed with many other jurisdictions that in a legal malpractice action based on negligence, the negligence of a client, if proven at trial, may be considered by a jury in awarding damages. The Superior Court next considered whether a finding of contributory negligence would operate as a complete bar to recovery. Finding that the comparative negligence principles do not apply to cases other than those for bodily injury or injury to property, it held in accordance with prior precedent that contributory negligence of a client may be a complete bar to recovery. However, it also held that a client cannot be deemed contributorily negligent for failing to anticipate or guard against his or her attorney’s negligence in the performance of legal services within the scope of the attorney’s representation of the client. It also stated that a client can be contributorily negligent where the client has withheld or misrepresented information that is essential to the attorney’s representation of the client.
In this case, the Superior Court found that the Gorskis specifically relied on their lawyer to review the contract and to ensure that the contract legally accomplished what the Gorskis sought. Further, the lawyer gave the Gorskis legal advice on the legal meaning and operation of contractual language. Because the advice was erroneous, the Gorskis could not have been contributorily negligent for relying on it.
by Mark Bauman | Apr 16, 2023 | Legal News, Medical Malpractice
In Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 981 A.2d 145 (2009), the Pennsylvania Supreme Court recently had the opportunity to consider the effect of factual admissions on the grant of summary judgment in a medical malpractice action.
The plaintiff in Stimmler gave birth at Chestnut Hill Hospital in 1965. Following delivery, complications arose which required her to undergo a procedure which involved deep-needle catheterization. Over the next 35 years, the plaintiff continued to experience a number of venous maladies until an echocardiogram in 1999 revealed a coiled catheter in her heart measuring 12 to 18 inches with a chronic appearance. Suit was filed against the Hospital and various doctors alleging that the catheter was left in her body following the original 1965 procedure.
During the course of discovery, the defendants served the plaintiff with requests for admission under the Pennsylvania Rules of Civil Procedure. The plaintiff failed to respond to the admissions in the time provided under the rules, thereby deeming the request admitted, and otherwise failed to seek withdrawal of the admissions. Among other things, the requests admitted that the plaintiff had undergone catheterizations during 16 subsequent hospitalizations and that plaintiff had no information that the catheter in her body was from the 1965 procedure.
The defendants subsequently moved for summary judgment which was granted by the trial court and upheld by the Superior Court. On appeal, the Supreme Court reversed, holding that the record provided sufficient evidence for a jury to conclude that the catheter was left in the plaintiff’s body during the 1965 procedure.
The Court placed great weight on the reports provided by the plaintiff’s two experts, stating that these expert opinions contained the requisite degree of specificity for the plaintiff to establish a prima facie case of negligence. Specifically, the plaintiff’s experts relied on the length and condition of the fragment in the plaintiff’s body in concluding that it “most likely” was left there during the 1965 hospitalization. The Court stated that the admissions did not challenge these expert conclusions.
The Court did suggest that admissions in “appropriate circumstances” may support the grant of summary judgment. However, the admissions in this case merely confirmed what was contained in the plaintiff’s medical records. The Court opined, “the lower courts erred by using the oranges of the ‘deemed admissions’ to render null the apples of Appellant’s expert witness reports on the issue of the identity of the catheter found in Appellant’s body.”
Based on the record of the case as a whole, and the requirements for summary judgment – namely freedom from doubt on any genuine issue of material fact – the Court reversed and remanded the case for further proceedings.
by Mark Bauman | Apr 15, 2023 | Legal News, Medical Malpractice
The number of medical malpractice suits filed in the Commonwealth of Pennsylvania dipped slightly in 2008. This decrease may be attributable to two reforms instituted in 2003. These measures included a requirement that a medical malpractice case be filed in the county where the alleged malpractice arose and a rule requiring the filing of a certificate of merit. The certificate of merit rule requires that in any case where malpractice is alleged, a qualified physician must state that there is a reasonable probability that the defendant deviated from the accepted standard of medical care. These two reforms were passed to prevent “forum-shopping” for plaintiff friendly venues and to limit the filing of frivolous lawsuits.
There were 1,602 medical malpractice filings statewide in 2008, down from 1,641 in 2007 according to the Administrative Office of Pennsylvania Courts. Interestingly, in 2002, one year prior to the institution of the certificate of merit requirement, 2,904 medical malpractice suits were commenced. The number of filings in Philadelphia fell from 1,365 in 2002 to 553 in 2008.
