by Mark Bauman | Jun 15, 2023 | Legal News, Medical Malpractice
In Shinal v. Toms, 2015 Pa. Super. 178 (Aug. 25, 2015), The Pennsylvania Superior Court affirmed the trial court’s decision not to strike four prospective jurors for cause based on their relationship with defendant medical facilities because plaintiff-appellants failed to demonstrate prejudice. The Superior Court further held that the jury may consider communication with defendant physician’s staff in determining existence of informed consent.
Plaintiff-appellants’ claims involved the surgical removal of a benign brain tumor from plaintiff patient. Plaintiff patient and her husband sued defendant physician; defendant medical center; and defendant clinic alleging a lack of informed consent for the procedure. Defendant physician asserted that he provided both aggressive and less aggressive approaches for treating the tumor, but that in his opinion more aggressive surgery was more beneficial in the long-term.
As the matter proceeded to trial, the parties were unable to empanel a jury because too many of the prospective jurors were either employed or insured by some of the medical facility defendants. In a second round of jury selection, the trial court permitted the parties to question the prospective jurors regarding their relationship with the medical facility defendants. Four jurors identified a relationship with the medical facility defendants but stated that they could render a fair and impartial verdict. Specifically, some stated that the medical facility defendants were so large that they would unlikely be affected by a single judgment or that medical malpractice insurance likely covered the claims.
At the conclusion of the trial, the court granted the medical facilities defendants’ Motion for Partial Summary Judgment and dismissed plaintiffs’ claims against them because the only theory on which plaintiffs predicated liability was lack of informed consent, which was the sole duty of defendant physician. The jury subsequently returned a verdict in favor of defendant physician and against plaintiffs. Plaintiff-Appellants appealed asserting that the trial court should have presumed prejudice and stricken the four jurors at issue for cause; erred in its jury instruction regarding informed consent; and improperly admitted the signed informed consent form.
The Superior Court held that plaintiff-appellants provided no evidence to support their claim of prejudice with regard to the prospective jurors and that any relationship was attenuated and largely contradicted by the jurors themselves. The Superior Court declined to follow the plurality decision in Cordes v. Assocs of Internal Med., 87 A.3d. 829 (Pa.Super. 2014), in holding none of the challenged prospective jurors had a close relationship with participants in the litigation on which prejudice must be assumed.
On a separate issue, the Superior Court held that the trial court properly permitted the jury to consider information given by appellee-physician’s staff in determining the informed consent issue. Although the MCARE Act was enacted after the precedents established in Foflygen v. Allegheny Gen. Hosp., 723 A.2d 705 (Pa.Super. 1999) and Bulman v. Myers, 321 Pa.Super. 261 (Pa.Super 1983), the MCARE Act did not preempt the principals set forth therein. Moreover, the Superior Court held the purposes of MCARE are better served by the encouragement of the dissemination of information regarding prospective surgery, which implicitly includes communication with physician staff.
Plaintiff-appellants’ also challenged the trial court’s denial of their motion to preclude reference to the informed consent form plaintiff patient signed. However, the Superior Court affirmed the trial court’s decision to permit reference to the signed informed consent form because Plaintiff-appellants offered no legal justification to preclude the form.
by Mark Bauman | Jun 14, 2023 | Legal News, Nursing Home Litigation
Below is a brief discussion of one of the primary legal issues being addressed in nursing home litigation in Pennsylvania: negligence per se.
Negligence Per Se
In an effort to improve the quality of care provided to residents of nursing homes, Congress enacted the Nursing Home Reform Act as part of the Omnibus Budget Reconciliation Act of 1987. OBRA and the NHRA redefined the regulations set forth by the federal government for state participation in the Medicare and Medicaid program. In order for a state to receive federal reimbursement under Medicare/Medicaid, the federal regulations require the state to establish an approved plan for medical assistance in accordance with the federal guidelines. To accomplish this, each state must promulgate its own statute and regulations for its long-term care facilities.
As a participant in the Medicare/Medicaid programs, Pennsylvania has complied with these federal statutes and regulations by enacting the Pennsylvania Health Care Facilities Act. The Act provided the Pennsylvania Department of Health with the power and duty to promulgate rules and regulations of long-term care facilities (i.e., nursing homes, personal care homes, assisted living facilities). The Department of Health utilized this power and promulgated licensing regulations for long-term care facilities. Thus, long-term care facilities must be in accordance with both the Health Care Facilities Act and the regulations regarding licensure.
Plaintiffs are alleging claims under the legal doctrine of negligence per se based on violations of the federal and Pennsylvania statutes and regulations. Essentially the doctrine of negligence per se adopts the statute or regulation as the standard of care, so that a violation of such statute or regulation establishes a breach of the standard of care. Thus, if a long-term care facility is found to be in violation of any of the aforementioned statutes or regulations, plaintiffs are claiming that the long-term care facility breached the standard of care as a matter of law.
The determination by courts of whether or not violations of the federal and Pennsylvania statutes constitute negligence per se is very unsettled in Pennsylvania. With the drastic increase in nursing home litigation, it will not be long before this issue is ultimately submitted to the Supreme Court of Pennsylvania for a final decision.
by Mark Bauman | Jun 14, 2023 | Legal News, Medical Malpractice
A unanimous three-judge panel of the Pennsylvania Superior Court reversed and remanded a Lancaster County Court of Common Pleas decision, holding that Plaintiffs-Appellants presented a prima facie case that their infant child’s risk of harm was increased by six treating physicians who failed to report suspected abuse, despite the fact that the Child Protective Services Law (“CPSL”) lacks an explicit civil remedy. The Pennsylvania Superior Court held that regardless of whether the legislature intended the right to a private action under the CPSL, it certainly did not intend to preclude civil redress for violations so severe that they would otherwise amount to criminal conduct.
In K.H., ex rel. H.S. v. Kumar (2015 PA Super 177), defendant physicians participated in the examination and treatment of the child on various occasions and failed to identify or report his injuries as signs of child abuse. The infant was eventually discovered in his crib unresponsive due to cranial hemorrhaging after being shaken by his father. His father was subsequently convicted of felony child abuse. The infant sustained permanent brain damage, seizures, physical and neurodevelopmental deficits, and other physical injuries.
One defendant physician expressed concern of child abuse after discovering rib fractures but concluded that the injury was likely related to the child’s premature birth. Another defendant physician allegedly accused the child’s parents of abuse, but later denied making any accusations. A third defendant physician noted a rash or bruise suspicious of abuse, but after speaking with the primary treating physician cancelled further tests.
The child’s mother and stepfather brought negligence claims against the primary treating physician and his medical offices for failing to recognize, treat, and report child abuse pursuant to the CPSL. The CPSL does not expressly provide a right to a private action, nor does it immunize those who fail in their reporting obligations. Plaintiffs presented evidence from two pediatricians who opined that pediatricians must recognize, diagnose, and report signs of abuse. Upon Defendants’ Motion for Summary Judgment, the trial court dismissed all claims on the basis that the CPSL lacked an express provision providing for a medical malpractice claim for failure to report child abuse.
In overturning the trial court’s decision, the Superior Court held that the trial court applied too rigid of a standard in finding that Plaintiffs’ evidence of causation warranted dismissal and that it would be untenable to suggest that Plaintiffs-Appellants failed to adduce sufficient evidence to create a genuine issue of material fact that the physicians breached the standard of care. The Superior Court held that Plaintiffs-Appellants’ claims should be treated as asserting common-law claims without reference to the CPSL, specifically medical malpractice. The validity of claims in the case should be determined by a jury based on the applicable standard of care established by the physician-patient relationship.
by Mark Bauman | Jun 13, 2023 | Legal News, Nursing Home Litigation
Nursing home litigation in New Jersey is a relatively novel area of the law. The New Jersey Nursing Home Resident’s Rights Statute (N.J.S.A. 30:13-1, et seq.) was enacted in 1976, however there are only a handful of cases interpreting this Statute. This Statue allows the recovery of punitive damages and also allows a prevailing plaintiff in a Nursing Home negligence action to recover reasonable attorney’s fees and costs of suit. We are seeing most, if not all plaintiff’s attorneys including allegations of violations of this Statute in their Complaints because of the potential recovery of punitive damages and reasonable attorney’s fees and costs. We expect that in the coming months and years more Nursing Home negligence cases will go to trial and will provide a better understanding of the impact of The New Jersey Nursing Home Resident’s Rights Statute (N.J.S.A. 30:13-1, et seq.).
by Mark Bauman | Jun 13, 2023 | Legal News, Medical Malpractice
The Superior Court of Pennsylvania recently affirmed a Montgomery County Court of Common Pleas’ decision granting summary judgment in favor of appellees regarding whether or not the appellants’ execution of a release barred them from subsequently suing for medical malpractice. The Superior Court relying on Buttermore v. Aliquippa Hospital found that it did.
Several years prior to the filing of the present action, the appellants participated in a mass tort litigation related to appellant-wife’s use of hormone replacement therapy. The mass tort litigation took place in 2004. Appellant-wife took hormone replacement drugs from 1990 to 1998; she was subsequently diagnosed with cancer in 2002, by appellee-doctor. The appellants filed the medical negligence action at issue in 2011. In 2002 appellee-doctor performed a partial mastectomy with axillary dissection and sentinel node identification on appellant-wife. Following this procedure, appellant-wife experienced pain and discomfort for eight years, but continued under the care of appellee-doctor. In 2010 appellee-doctor located and removed a surgical sponge that was left behind in the 2002 surgery.
In 2013 the trial court granted summary judgment in favor of all the defendants and dismissed the appellants’ action. The court found that the claims were barred by the terms of the release they had executed in relation to the settlement of the mass tort litigation. The appellants raised several issues on appeal.
The appellants argued that the trial court inappropriately relied on Buttermore to enforce the release against them because there was no causal connection between the hormone replacement therapy and the appellant’s breast cancer. They also argued there was no specific event to release and that they did not intend to release the appellees when they executed the release. The Superior Court found these claims to be meritless. The Court reasoned that the plain language of the release must be given its full effect. It is not relevant that the authority cited by the appellant relies on incidents where the releases cite a particular event. The release signed by the appellants does not specifically require a causal link between ingestion of hormone replacement drugs and possible later claims. The application of the release was not limited to injuries sustained as a result of ingestion of the hormone replacement drugs, it was more general, and applied to “the facts, events, and incidents that gave rise to or related in any way to this Civil Action.” The Court determined that this language clearly includes the medical malpractice action alleged to have occurred during appellant-wife’s surgery. If appellant-wife had not developed breast cancer she would not have had reason to join the mass tort litigation, therefore, the breast cancer clearly falls within the language of the release.
The appellants also argued that they never intended to release the appellees and that it would not make sense for them to release a party they had just filed suit against. The Court noted that Pennsylvania uses a two-prong test to construe the effect of a release. First the court must look at the effect of a release using the ordinary meaning of its language, and second, interpret the release as covering only such matters to fairly have been with within contemplation of the parties when the release was given. The trial court accurately applied the first component and considered the ordinary meaning of the release’s language, but did not consider the second prong related to the contemplation of the parties. Even though the trial court did not consider the contemplation of the parties the Court reasoned that because the appellee-doctor’s alleged negligence had already occurred at the time the release was executed, the alleged malpractice was within the appellants’ contemplation at the time the release was executed. Therefore, the second prong was satisfied.
Ultimately, the Court found that the release executed by appellants in relation to the mass tort litigation barred any claims against appellee-doctor for medical malpractice, despite the fact that a surgical sponge was left inside her for eight years.
by Mark Bauman | Jun 12, 2023 | Legal News, Nursing Home Litigation
At first glance, lawsuits against nursing homes and other long-term care facilities are virtually indistinguishable from traditional medical malpractice cases. Expert testimony is used to support an allegation that the care and treatment of healthcare professionals fell below the applicable standard of care, causing harm to the resident. However, beneath the surface are myriad issues which distinguish this emerging area of practice.
Unlike medical malpractice actions, where the issues usually focus on individual events, such as a surgery, doctor’s visit, or the failure to order a test, nursing home litigation often focuses on systemic care provided over an extended period of time. Nursing homes are interdisciplinary healthcare centers where numerous individuals come together to provide care and treatment to residents in accordance with physicians’ orders. For example, a nursing home suit involving the development and progression of a pressure ulcer might focus on the actions of the registered nurses who developed the resident’s care plan, the licensed practical nurses who provided wound treatments, the certified nurse’s assistants who turned and repositioned the resident, and the dieticians who oversaw the hydration and nutrition of the resident. Individual or collective lapses by these individuals could give rise to liability for the overall facility.
Another unique aspect of nursing homes are the state and federal regulations which prescribe – both broadly and specifically – the care to be given to residents. These regulations provide a host of challenges to nursing homes facing civil litigation. State agencies have the authority to inspect nursing homes in an effort to identify violations of these regulations. Plaintiffs’ counsel, in turn, frequently use a resident care violation found by the state as a starting point for litigation. It remains an open question whether the results of these inspections are admissible at trial. In some states, including New Jersey, residents have been given the statutory right to privately enforce nursing home regulations through a distinct cause of action. In other states, plaintiffs’ counsel attempt to use the regulations to either establish the applicable standard of care or as evidence of negligence or even negligence per se.
Given some notable successes by plaintiffs’ counsel across the country, along with an aging population, it seems likely that the number of nursing home actions will continue to rise. While experience with medical malpractice litigation is instructive, courts and litigants need to be aware that nursing homes are unique organizations, which present novel issues of procedure and evidence.
