by Mark Bauman | Apr 14, 2023 | Legal News, Medical Malpractice
On January 4, 2008, the Superior Court of Pennsylvania reinforced the liberal standard for qualification of an expert witness. In Novitski v. Rusak, on appeal from the Court of Common Pleas of Luzerne County, the Superior Court affirmed the decision of the trial court to admit expert testimony regarding loss of future earning capacity in a motor vehicle accident case. The defendant driver appealed, arguing the trial court should have granted a new trial, molded the verdict, or granted remittitur on the basis the court erred in admitting expert testimony regarding loss of future earning capacity since there was no proper foundation for the testimony.
The testimony at issue concerned qualified experts in vocational rehabilitation and economic losses. Appellant contends the economic expert improperly based his opinion on the rehabilitation expert’s opinion. After careful review, the Superior Court concluded there was competent and concise medical testimony that plaintiff’s accident related injuries impacted on his ability to work, and therefore, the economic expert’s testimony on this subject was properly admitted.
It is well established in this Commonwealth that the standard for qualification of an expert witness is a liberal one. The test to be applied when qualifying an expert witness is whether the witness had any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine. It is also well established that a witness may be qualified to render an expert opinion based on training and experience. Formal education on the subject matter of the testimony is not required, nor is it necessary that an expert be a licensed medical practitioner to testify with respect to organic matters. It is not a necessary prerequisite that the expert be possessed of all of the knowledge in a given field, only that he possess more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence, or experience.
Zak v. Prudential Property & Casualty Ins. Co., 713 A.2d 681, 689 (Pa.Super.1998). The court found that the economic expert’s testimony was clearly within his area of expertise and did not require a physician to state the degree to which plaintiff’s capability to work was limited.
by Mark Bauman | Apr 13, 2023 | Legal News, Medical Malpractice
On September 7, 2007, in a unanimous opinion regarding MacNutt v. Temple University Hospital, 2007 Pa. Super. 279, 932 A.2d 980 (Pa. Super. 2007), lead by Judge Gantman, the Pennsylvania Superior Court reviewed the trial court’s refusal to allow the plaintiffs/appellants to proceed at trial on a theory of res ipsa loquitur.* In reviewing that refusal, the Pennsylvania Superior Court thoroughly examined and summarized the relevant existing law.
After applying three elements of res ipsa loquitur as discussed in the Restatement (Second) of Torts § 328D(1)** to the particular facts of the case, the Pennsylvania Superior Court denied plaintiffs/appellants’ appeal. In particular, the court found that because the nature of the injury was itself in dispute, the injury could not have occurred without negligence. The court further found that a factual dispute exists where other possible causes exists for the injury, thereby eliminating the possibility that the case is a res ipsa loquitur one.
*The doctrine of res ipsa loquitur is a rule of circumstantial evidence which allows plaintiffs, without direct evidence of the elements of negligence, to present their case to the jury based on an inference of negligence.
**The three elements of res ipsa loquitur as outlined in the Restatement (Second) of Torts §328D are: (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) the other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
by Mark Bauman | Apr 12, 2023 | Legal News, Medical Malpractice
In Issac v. Jameson Memorial Hospital, 932 A.2d 924, 2007 Pa. Super. 250 (Pa. Super. 2007), the PA Superior Court was asked to decide whether Medicaid regulations (42 CFR §441.253 and 42 CFR §441.257 ), impose an additional legal standard in actions for informed consent. On August 22, 2007, the PA Superior Court affirmed the lower court’s decision that Medicaid regulations relate primarily to “a procedure for payment for medical services” and do not impose any additional responsibilities on physicians in obtaining an individuals informed consent than what PA case law requires. In further support of it’s decision, the court expressed it’s concern, reverse inequality would result if the Medicaid regulations were adopted because Medicaid patients would be treated differently than non-Medicaid patients.
by Mark Bauman | Apr 11, 2023 | Legal News, Medical Malpractice
On August 15, 2007, the PA Superior Court, in the case of Bowmaster v. Gerald Clair and Centre Community Hospital, held that the beneficiary of medical expenses paid by DPW for the care and treatment of a minor child is the parents of the minor child as it is the parents that have an obligation of support until the child reaches majority.
As such, in personal injury cases involving a minor, DPW is not entitled to recover any portion of the funds paid prior to the minor child reaching majority, if the parents, or by intervention of DPW, do not seek recover of such expenses.
by Mark Bauman | Apr 9, 2023 | Legal News, Medical Malpractice
The Pennsylvania Commission on the MCare Fund submitted its final report November 16, 2006. The Commission, created by statute on December 22, 2005, “for the purpose of reviewing and making recommendations regarding appropriate and effective methods to address any future unfunded liabilities of the MCare Fund.” 40 P.S. §5103.1(b), began meeting April 12, 2006. In their report, the Commission identified two continuing problems confronting the MCare Fund: the rising costs of insurance for healthcare providers and unfunded liabilities.
The MCare Fund, created by Act 13 in 2002, replaced the Medical Professional Liability Catastrophe Loss Fund (“CAT Fund”). Coverage requirements for healthcare providers have varied since 1976 when the CAT Fund was created. Under current Act 13 requirements, hospitals are required to have minimum total coverage of $1 million per incident and $4 million in aggregate coverage per year. The first $500,000 per incident and $2.5 million of the annual aggregate for hospitals are the primary layer, and the coverage above the primary layer is the MCare layer. Non-hospital providers are required to have minimum total coverage of $1 million per incident and $3 million in aggregate per year; the first $500,000 per incident and $1.5 million of the annual aggregate for non-hospitals are the primary layer, and coverage above the primary layer is the MCare layer. Providers are responsible for a portion of this amount by maintaining primary coverage, either through private insurance or by self-insuring. Either way, a significant cost is added to the operational budget(s) of Pennsylvania healthcare providers.
In response to these rising costs, Act 44 established the Health Care Provider Retention Program. Commonly called the “Abatement Program,” and the first of its kind in the nation, Act 44 authorizes abatements to help defray the rising costs of malpractice insurance. Funding for the Abatement Program is achieved through a tax on cigarettes and contribution from the Auto CAT Fund. The Abatement Program currently has $830 million at its disposal. This sum is expected to grow to $1 billion by the end of 2007. Health care providers participating in the Abatement Program receive an abatement in exchange for the promise to continue practicing in Pennsylvania for two years.
The Commission determined that its task was to suggest policy to enable continuation of the Abatement Program and address the payment of Unfunded Liabilities, currently estimated to be $2.33 billion. To complete this task, PricewaterhouseCoopers created more than 150 hypothetical financial scenarios. These scenarios were based on actual data provide by healthcare providers (related to claims and costs). The following policy recommendations were based on the most economically feasible scenarios:
- Continue the Abatement Program until the MCare Fund is phased out. Following the phase-out the commission predicts that the absence of MCare assessments will reduce provider costs.
- Continue funding the Abatement Program through public sources (i.e. the cigarette tax and contribution from the Auto CAT fund).
- Continue to use funds already available to the Abatement Program and phase-out the Abatement Program in conjunction with the projected elimination of the MCare coverage layer.
- Any excess money from public sources should be used to decrease the cost of provider insurance through the year 2025.
- Money from public sources should be used to limit the yearly percentage increase of coverage costs.
- Any surplus money remaining from public sources should be used to support programs which promote healthcare in the Commonwealth.
- Promote quality to decrease the number of claims made and thereby decrease costs. Borrow money as necessary.
- Arrange for reserves to pay any claims remaining against the MCare Fund after 2025.
The Commission’s report is available by clicking here: Report
by Mark Bauman | Apr 8, 2023 | Legal News, Medical Malpractice
A recently-enacted statute, which was signed into law by Governor Rendell, states that before a prevailing party or beneficiary in a law suit can receive the proceeds from any settlement or award, that party must provide to his or her attorney a sworn statement that includes the prevailing party or beneficiary’s full name, mailing address, date of birth, and social security number. This party must also provide a statement from the Pennsylvania Child Support Enforcement website, which indicates whether he or she owes any child support payments, and if so, the amount in arrears. The attorney shall then forward the statement and lien report from the website at the time of the delivery of the release. If overdue child support does exist, that amount shall act as a lien against the net proceeds of any monetary award. This law takes effect on September 5, 2006. See 23 Pa.C.S. §4308.1. “Collection of Overdue Support From Monetary Awards.”
