by Mark Bauman | Jun 20, 2023 | Legal News, Nursing Home Litigation
In a case of first impression, Philadelphia County Court of Common Pleas Judge Mark I. Bernstein held that a survivorship action, brought in conjunction with a wrongful death claim, must be sent to arbitration pursuant to the federal preemption doctrine.
The underlying case of Lipshutz v. St. Monica Manor involved an elderly woman who was hospitalized following a stroke. Given the cognitive injuries she sustained, she was subsequently transferred to the defendant nursing home. At that time, the plaintiff, the resident’s only living daughter and attorney-in-fact, executed an admission agreement which contained a mandatory arbitration clause. Under the terms of the arbitration clause, any survivorship action brought on behalf of the resident had to be handled out of court in an arbitration setting. Thereafter, the resident died in the nursing home, and her daughter filed suit in the Philadelphia County Court of Common Pleas, setting forth claims sounding in wrongful death and survival. Counsel for the nursing home then moved to bifurcate the claims and move the survival action into arbitration, pursuant to the plaintiff’s arbitration agreement.
Notwithstanding the fact that the Pennsylvania Rules of Civil Procedure require claims for wrongful death and survival to be litigated together, Judge Bernstein held that in the presence of the arbitration agreement, Pennsylvania state law was preempted by the Federal Arbitration Act. As such, he noted that “[w]ere this court to order both the wrongful death claim and survival actions to remain in court, the decedent’s arbitration agreement, valid through her daughter’s signature, would be nullified. Such nullification is pre-empted by the FAA and recent United States Supreme Court interpretations.” According to Judge Bernstein, such interpretations included the recent case of Marmet Health Care Center v. Brown, 132 S. Ct. 1201 (2012), wherein the United States Supreme Court held that nursing home arbitration agreements were entitled to the same protection and enforcement as any other contract, and that no exception may be made for wrongful death or survival claims arising from care rendered in these facilities.
While the Federal Arbitration Act required the plaintiff’s survival action to be removed to arbitration, Judge Bernstein noted that the plaintiff could still pursue her right in court, as well as the rights of other beneficiaries, under a claim for wrongful death.
by Mark Bauman | Jun 20, 2023 | Legal News, Medical Malpractice
The Philadelphia County Court of Common Pleas recently issued an opinion in support of its order transferring a medical malpractice case to Berks County, holding that sending test results “does not rise to the level of rendering healthcare services” that would make Philadelphia County the proper venue for this case.
In Wentzel v. Cammarano, III, DO, et al.,[1] the plaintiff-mother alleged that she received prenatal care at Reading Hospital, and an ultrasound taken there led to an emergency caesarian section delivery at Reading Hospital. The baby continued having respiratory problems after birth, however, and Reading Hospital sent the baby’s echocardiogram test results to St. Christopher’s Hospital for Children in Philadelphia for interpretation. The complaint alleged that the echocardiogram tests showed pulmonary hypertension and heart valve insufficiency, conditions that would require immediate attention. The plaintiffs alleged that St. Christopher’s, and the interpreting physician there, delayed in sending the results of the test back to Reading Hospital, causing further delay of treatment.
Additionally, the plaintiffs alleged that the infant suffered a broken rib at either Reading Hospital or St. Christopher’s. The complaint, however, did not allege a claim for medical professional liability regarding the infant’s care received at St. Christopher’s during the infant’s admission, nor did the complaint allege that the echocardiogram was misread.
Accordingly, Judge Arnold New found that the allegation against St. Christopher’s regarding the broken rib was speculative. Judge New noted that the complaint alleged that St. Christopher’s negligence occurred prior to the infant’s admission there, and that any allegations of professional negligence were stated for the first time in plaintiffs’ response to preliminary objections. As such, the complaint’s only allegations against St. Christopher’s amounted to transmitting test results, which is not rendering healthcare services for purposes of establishing venue. The opinion cites to Cohen v. Furin, 946 A.2d 125, (Pa.Super. 2008) and Bilotti-Kerrick v. St. Luke’s Hospital, 873 A.2d 828 (Pa.Super. 2005), both of which held that a doctor’s telephone call was insufficient to establish venue in the advising doctor’s county. Judge New found that transmitting test results was even further removed from these cases since the question was one of timing, not advice. Transmittal of test results was an administrative function rather than a provision of healthcare services. Accordingly, he entered an order transferring this matter to Berks County, where Reading Hospital is located.
The plaintiffs appealed this order, and Judge New issued the opinion in accordance with Pennsylvania Rule of Appellate Procedure 1925.
[1] Wentzel v. Cammarano, III, DO, et al., Philadelphia County Court of Common Pleas, No. 1508-4185, filed August 18, 2016.
by Mark Bauman | Jun 19, 2023 | Legal News, Nursing Home Litigation
In an opinion issued on November 21, 2012, the Pennsylvania Supreme Court held that a nursing home and affiliated entities are subject to potential direct liability for negligence, where the requisite resident-entity relationship exists to establish that the entity owes the resident a duty of care. Scampone v. Highland Park Care Center, LLC, No. 16 WAP 2011 (Pa. 2012)(Opinion by Castille, C.J.).
In the underlying case, plaintiff, Richard Scampone, as executor of the estate of Madeline Scampone, asserted claims of negligence under the Survival Act and of wrongful death alleging theories of corporate negligence and vicarious liability against defendants, Highland Park Care Center, LLC, a nursing home; and Grane Healthcare, the corporation providing management services to Highland Park, including periodic visits from nursing consultants, in-house training of nursing and administrative staff, assistance with regulatory compliance, and assistance in formulating policies and procedures. Testimony presented at trial established that during Ms. Scampone’s residency at Highland Park, there was limited personnel to accomplish all of the tasks required by her care plan which resulted in a failure of the staff to provide sufficient water and medication, track the daily activities and report changes in her condition, and to follow doctors’ directions. These failures caused dehydration and permitted a recurring urinary tract infection to progress, affecting Ms. Scampone’s heart and leading to an acute myocardial infarction and related death.
After the conclusion of plaintiff’s evidence at trial, the trial court granted a motion for compulsory nonsuit on the claim of corporate negligence against Grane Healthcare, but permitted the same claim against Highland Park to go to the jury. The jury returned a verdict in favor of the Scampone estate, finding Highland Park directly and vicariously liable for negligence. Following trial, both parties appealed to the Superior Court which affirmed in part, holding that the trial court properly allowed the claim of corporate negligence as to Highland Park. However, the Superior Court reversed the trial court’s improper nonsuit against Grane Healthcare. Thus, the Superior Court found that the plaintiffs should have been permitted to proceed with corporate negligence theories against both defendants and, therefore, remanded the case back to the trial court for a new trial. As a result, Grane Healthcare and Highland Park filed petitions for allowance of appeal to the Supreme Court. The Supreme Court affirmed, in full, the decision of the Superior Court.
In the opinion, the Court addressed the issues of categorical exemption from negligence liability of nursing homes and related entities, as well as claims regarding the specific duties of care of those entities. In so doing, the Court explained the difference between direct corporate liability and vicarious liability, noting that “a plaintiff may proceed against a defendant on theories of direct and vicarious liability, asserted either concomitantly or alternately. Liability for negligent injury is direct when the plaintiff seeks to hold the defendant responsible for harm the defendant caused by the breach of a duty owing directly to the plaintiff.” (citation omitted). On the other hand, under a theory of vicarious liability, a corporation “assumes the risk of its individual agents’ negligence.” (citations omitted). The Court then embarked on a detailed analysis of the history of corporate negligence in Pennsylvania, including its initial application to hospitals in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) and its subsequent “extended” application to HMOs and medical professional corporations in Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998) and Hyrcza v. West Penn Allegheny Health Sys., 978 A.2d 961 (Pa. Super 2009), respectively.
In its examination of Pennsylvania case law, the Supreme Court rejected the argument that Thompson and its progeny categorically exempt nursing homes and affiliated entities from corporate negligence liability simply because that prior decisional law was addressed in the particular context of hospitals, HMOs and medical professional corporations. Rather, the Court noted that categorical exemptions exist only pursuant to legislative mandate, a privilege not bestowed upon nursing homes or similar entities.
The Court further rejected the former analysis employed in Thompson and its progeny, which focused on the question of “whether the entity providing medical care had assumed the role of a comprehensive health center responsible for arranging and coordinating the total healthcare of its patients.” (citations omitted). Instead, the Court instructed that the proper inquiry requires a broader, case-by-case analysis of whether the corporate defendant owes a duty of care to the plaintiff pursuant to the following five factors set forth in the post-Thompson case of Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000): (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeabilty of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Thus, while the distinctions between a hospital and a nursing home may be relevant to a trial court’s ultimate determination of whether a duty exists, there no longer exists any viable argument for categorical exemption of an entity from potential liability for corporate negligence.
by Mark Bauman | Jun 19, 2023 | Legal News, Medical Malpractice
In Page v. Moses Taylor Hospital, et al.,[1] the Lackawanna County Court of Common Pleas denied defendants’ motion seeking to permanently seal plaintiffs’ settlement petition as well as all related filings and orders, finding that the defendants did not satisfy their burden of showing that their interest in sealing the settlement terms outweighs the presumption in favor of open access to judicial records.
This matter arose from the plaintiff-mother’s eclamptic seizure when her twins were 33.4 weeks gestation, after which the plaintiff-mother developed placental abruption that allegedly caused the twins to be stillborn. The plaintiff-mother also suffered hypovolemic shock, tachycardia and massive hemorrhaging, which required her to undergo an emergency hysterectomy and removal of her fallopian tubes and ovaries.
During the course of the case, the plaintiffs submitted an expert report regarding the pain and suffering of the twin fetuses. Defendants filed a motion in limine to preclude evidence of fetal pain and suffering, which was overruled.[2] Defendants also filed pre-trial motions regarding plaintiff-mother’s claim for negligent infliction of emotional distress and bereavement damages, both of which were also denied.
Thereafter, the parties reached a settlement agreement after the jury was selected. Plaintiffs filed a petition for court approval of the settlement, its allocation, and its distribution. Defendants then filed a motion seeking to permanently seal plaintiffs’ settlement petition and attached exhibits, as well as any subsequent related filings and orders. In support of their motion, defendants argued that “no legitimate public interest would be impaired in the sealing of the settlement terms, and no countervailing consideration should override the parties’ interests in confidentiality… [S]ealing of the terms of the settlement agreement would promote fairness and efficiency, in that it would encourage amicable settlement…The disclosure of the terms of the instant settlement agreement risks unnecessary and inappropriate influence on other cases involving defendants associated with the defendants in this matter.”
The court, however, was unpersuaded. In his opinion, Judge Terrence R. Nealon applied the common law approach to analyze the defendants’ request to seal the judicial records. Citing several Pennsylvania Superior Court cases,[3] the opinion notes that there is a presumption in favor of public access to court records. The court performs a balancing test of the factors in favor of access and the factors against it, and the moving party has the burden of showing that his or her interest in secrecy outweighs the presumption for open access. The opinion noted that, “while the general interest in encouraging settlement based upon a particularized need for confidentiality is a factor to be considered, it is outweighed by the public’s right of access if the settlement agreement involves information important to public health and safety or matters of legitimate public concern.”
Judge Nealon was unpersuaded by the defendants’ arguments that sealing the records would promote amicable settlements and would prevent influence on other malpractice cases involving the defendants. The opinion emphasizes that medical negligence claims, malpractice insurance premiums, and their affect on health care access are subject to public debate and legislation. Additionally, the opinion considered the newsworthiness of this case. It had already been the subject of media coverage in several instances, including the pre-trial motions regarding evidence of fetal pain and suffering and the plaintiff-mother’s claim for negligent infliction of emotional distress. The court found that the defendants did not satisfy their burden of showing how the disclosure of the terms of settlement would cause increased harm to the defendants so as to outweigh the public interest, particularly since the negligence allegations against the defendants had already been disseminated in the press.
Though the court denied the defendants’ motion to seal the petition for settlement and related filings, it temporarily sealed the petition and order in the event that the defendants sought an appeal of the order. The seal will be lifted if no timely appeal is filed.
[1] 2016 Pa. Ct. Comm. Pl. (unpublished opinion) (August 18, 2016).
[2] http://www.obrlaw.com/medical-malpractice.php?Court-Permits-Expert-Testimony-Regarding-Fetal-Pain-Suffering-Claims-89.
[3] Com. v. McKown, 79 A.3d 678 (Pa. Super. 2013); In re J. B., 39 A.3d 421, 434 (Pa. Super. 2012); Zdrok v. Zdrok, 829 A.2d 697, 699 (Pa. Super. 2003); Storms ex rel. Storms v. O’Malley, 779 A.2d 548, 568 (Pa. Super. 2001), app. denied, 570 Pa. 688, 808 A.2d 573 (2002).
by Mark Bauman | Jun 19, 2023 | Medical Malpractice
In Page v. Moses Taylor Hospital, et al.,[1] the Lackawanna County Court of Common Pleas denied defendants’ motion in limine to preclude plaintiffs’ claim for pain and suffering of fetuses or, in the alternative a motion for a Frye hearing. The case involved a medical malpractice action surrounding the stillbirth of twins at 33.4 weeks gestational age. Plaintiffs alleged that the defendants negligently failed to diagnosis and treat preecelampsia, and as a result plaintiff-mother suffered an eclamptic seizure causing her to develop placental abruption that resulted in the demise of the twin fetuses. The plaintiff-mother suffered hypovolemic shock, tachycardia and massive hemorrhaging requiring her to undergo an emergency hysterectomy and left salpingo-ophorectomy.
The plaintiff-mother asserted a cause of action under the Wrongful Death Act, 42 Pa.C.S. § 8301, and the Survival Act, 42 Pa.C.S. § 8302. Plaintiffs produced an expert report from a board-certified specialist in neonatal and perinatal medicine who opined that a “fetus at 33 weeks gestational age [is] able to experience pain and suffering from the effects of asphyxia, i.e., abnormal gas exchanges, as would an older infant, child or adult as well as from the effects of short-term starvation.” Id. at 3. He further opined that the pain suffered by the twins before their death was implicitly severe and significant. Id.
The defendants filed a motion in limine to preclude plaintiffs’ claim for pain and suffering of fetuses based on Frye v. United States,[2] and Pa.R.C.P. 207.1. The defendants alleged that plaintiffs’ expert opinions related to pain and suffering of in-utero fetuses due to death by asphyxiation are not supported by and documented by scientific authority other than his own subjective belief. Page v. Moses Taylor Hospital, at 4.
The Court discussed Amadio v. Levin,[3] where the Supreme Court expressly extended to a dead child the right to institute a survival and wrongful death action for injuries suffered in utero. The fetus must be viable at the time of the fatal harm in order to assert a claim under the Wrongful Death and Survival Acts. Page v. Moses Taylor Hospital, at 9. The Supreme Court of the United States and the Superior Court of Pennsylvania have held that viability occurs at 23-24 weeks gestation. Id. at 14.
Furthermore, plaintiffs’ expert cited an article from The New England Journal of Medicine which reviewed and cited more than two-hundred studies and publications addressing pain perception of neonates as well as other related topics. Defendants’ experts failed to submit any contrary medical literature to support their Frye motion and only offered their own conflicting expert opinion. The Court found that there was scientific support for the conclusion that “viable fetuses at 33 weeks gestation have the cortical, subcortical and neurochemical capacity for conscious perception of pain.” Id. at 15.
Ultimately, the Court found that plaintiffs’ expert opinion was supported by scientific authority, and therefore, did not require a Frye hearing. The motion in limine to preclude plaintiffs’ expert testimony was denied and the Court determined that it was an issue for the jury to determine the weight accorded to plaintiffs’ expert opinion.
[1] Page v. Moses Taylor Hospital, et al., 2016 Pa. Ct. Comm. Pl. (unpublished opinion) (May 6, 2016).
[2] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
[3] Amadio v. Levin, 509 Pa. 199, 208, 501 A.2d 1085, 1089 (1985).
by Mark Bauman | Jun 18, 2023 | Legal News, Nursing Home Litigation
Recent legislation in the U.S. House of Representatives proposes banning mandatory pre-dispute arbitration clauses in nursing home agreements. The proposed Arbitration Fairness Act of 2011 would eliminate the requirement that all claims against the nursing home facility and its employees be brought in front of an arbitrator, instead allowing the individual to choose how they want to proceed after a dispute arises. The intent of the legislation is to ensure that nursing home residents are not unfairly deprived of their constitutional rights by requiring them to give up their “day in court” prior to a claim arising. The next step in enacting the Arbitration Fairness Act of 2011 is approval by the U.S. Senate. If enacted into law, arbitration must be agreed to by both parties to a nursing home action after the dispute arises, or the case will proceed through the court system.
See S. 987 (112th): Arbitration Fairness Act of 2011.
