by Mark Bauman | Jun 12, 2023 | Legal News, Medical Malpractice
A three judge panel upheld a Lackawanna County Court of Common Pleas ruling that the Pennsylvania Peer Review Protection Act’s (“PRPA”) privilege provision only applies to peer reviews initiated by a professional health care provider. A medical peer review initiated by an insurance company for the purposes of deciding whether to maintain a business relationship with the doctors being reviewed is not privileged.
The case at hand, Venosh v. Henzes, 1498 MDA 2013 (Pa. Super. Ct. July 11, 2014), involved a medical malpractice action against the plaintiff’s orthopedic surgeon. Plaintiff alleged the defendant-doctor negligently injured her arteries and nerves during the surgery. During the course of discovery, plaintiff served a discovery request asking for the production of any incident or event reports “which in any way reference facts surrounding the medical care of [plaintiff].” Two reports were acknowledged, but defendant-doctor objected to the extent the request sought information that may be protected by the PRPA. The reports at issue were reports initiated by Blue Cross with the purpose of determining whether or not it wanted to continue to cover defendant-doctor’s services.
Plaintiff presented a discovery motion to the Special Trial Master, and the Master issued an order granting the motion and directing defendant-doctor to produce the event reports within twenty days. Defendant-doctor appealed. Defendant-doctor contended that the event reports were immune from discovery pursuant to section 311 of the Medical Care Availability and Reduction of Error Act (“MCARE”) and section 299b-22 of the Patient Safety Quality Improvement Act of 2005 (“PSQIA”). Defendant-doctor argued the reports were prepared exclusively for the use of Patient Safety Improvement and Management Committee and were not shared with any other person or agency. Additionally, defendant-doctor asked the Court to consider whether the incident reports were protected from discovery by the PRPA.
The appellate court determined that the purpose of the PRPA was to protect peer reviews of one medical professional by another with the intention that it is a means of allowing the medical profession to “self police” the quality of its care. Since Blue Cross was not a member of the medical profession it could not be involved in “self policing.” The appellate court cited the Superior Court’s rulings in Yocabet v. UPMC Presbyterian, and McClellan v. Health Maintenance Organization, which defined peer review as a review that is initiated by a health care provider.
The PRPA grants qualified immunity for health care providers participating in a peer review process and establishes an evidentiary privilege applicable to peer review proceedings. When a review is initiated by a non health care provider, such as an insurance company, without prompting from the health care provider, it falls outside the parameters of the PRPA. For the foregoing reasons, the appellate court upheld the lower court’s ruling and required the defendant-doctor to produce the reports.
by Mark Bauman | Jun 11, 2023 | Legal News, Medical Malpractice
A three judge panel overturned an Allegheny County Court of Common Pleas ruling that the minutes of a board meeting conducted following a tainted kidney transplant were discoverable. The panel remanded the decision for in camera review for the trial court to determine whether or not the content of the minutes were subject to the peer review privilege and/or attorney-client privilege.
The case at hand, Yocabet v. UPMC Presbyterian, 2015 WL 3533851 (Pa. Super. Ct. January, 27, 2014), involved the plaintiff receiving a kidney transplant from a donor who was positive for hepatitis C, and the defendant hospital’s failure to detect this condition during the donor review process. The plaintiff subsequently contracted hepatitis C. The report at issue involves the minutes of a board meeting following the filing of the law suit as well as the investigation by the Pennsylvania Department of Health on behalf of the Centers for Medicare and Medicaid services to determine the adequacy of the defendant hospital’s transplant program.
The defendant hospital was asked to produce board meeting minutes of a meeting that took place following the investigation of the hospital’s transplant program. The plaintiff specifically requested board minutes related to the incident as well as interrogatories specifically addressing admissions by members of the defendant hospital’s meeting attendees. The defendant hospital asserted the peer review privilege, because the transplant was specifically addressed at the meeting, as well as the attorney-client privilege, because one or more attorneys were present at the meeting for the hospital to obtain legal advice.
The trial court ordered the defendant hospital to produce the information requested related to the board meeting, without first reviewing the material to determine if either privilege applied. The trial court concluded that the attorney-client privilege was inapplicable because it was not possible to assert privilege when the meeting was not held in private. Whether or not the peer review act applied was not specifically addressed.
The appellate court concluded that the “attorney-client privilege can apply to a meeting of the governing board of an organization with its executive vice president and that the information potentially applies to the information requested in these interrogatories.” In addition, the court found that the board of directors of a health care provider can conduct peer review.
The appellate court rejected the trial court’s notion that in order for a corporate entity to obtain legal advice it needs to be done privately with only one of the high ranking officials. The court went on to describe that a corporation is a legal fiction, which can “speak” through its officers, directors, or agents. Therefore, a corporation can assert the attorney-client privilege. Due to the nature of the meeting, and the defendant properly invoking both the peer review privilege and the attorney-client privilege, the appellate court found that the trial court improperly required disclosure of the requested material. As a result, the case was remanded back to the trial court for an in camera review to determine whether or not either privilege applied. Additionally, the court required the defendant hospital to create a privilege log and identify any document that must be reviewed in camera on the basis of privilege. It is unclear at this point whether or not the hospital board minute meetings will be privileged, but the court is clear that if the privilege is properly asserted the material must be reviewed in camera.
by Mark Bauman | Jun 10, 2023 | Legal News, Medical Malpractice
The Allegheny County Court of Common Pleas has held that an incident report completed by a charge nurse is not barred from discovery under the MCARE Act. The court’s decision is among other recent trial court decisions regarding the growing body of case law that has yet to be addressed by the appellate courts.
In Lesterick v. Singh, No. GD-13-016483, 2015 WL 3615167 (Pa. Ct. Com. Pl. May 4, 2015), the report at issue described an event where the only on-call obstetrician in the hospital left the hospital just prior to an emergency cesarean section being called. According to plaintiffs, the only on-call physician left the hospital to eat dinner at a restaurant causing an emergency cesarean section to be delayed and ultimately performed by a resident with no supervision. The charge nurse working at the time testified at her deposition that she was in the operating room with the obstetrical team ready to perform the cesarean section but left to look for the on-call physician. She saw him walking towards the operating room in street clothes, which were not allowed in the operating room. She further testified that she had never heard of the only on-call obstetrician leaving the hospital or a resident performing an emergency cesarean section.
That evening, the charge nurse prepared an incident report describing the events surrounding the delivery. Plaintiffs sought discovery of the report and defendants vigorously contested its production. Defendants argued that the incident report was protected from discovery under Section 308(a) of the MCARE Act. However, plaintiffs alleged that the report was not prepared under Section 308(a), which applies only to health care workers who reasonably believe that a serious event or incident has occurred, and who prepare a report according to the health care facility’s patient safety plan.
In making its decision, the trial court pointed to the charge nurse’s deposition testimony and noted that she did not testify that she prepared the report because she believed a serious incident occurred. The court noted that the hospital did not appear to have a patient safety plan, and therefore, the report could not have been prepared in accordance with a patient safety plan. Further, Section 308(b) of the MCARE Act requires that patients be notified after a serious incident occurs, and the plaintiffs were never notified of any of the events that were included in the incident report. Lastly, the court found that in order for the report to be protected under Section 311 of the MCARE Act, it would have to have been considered by the patient safety committee, and there was no evidence of that in the case.
The facts surrounding the incident report also appeared to be an integral part of the court’s decision. The court found that the behavior as described in the report was so extreme that it was “unlikely that the sole motivation of the charge nurse for creating the report would have been compliance with the requirements of the MCARE Act.” Without citing any appellate case law, the judge held that the report was discoverable because it was not completed as a result of a patient safety committee meeting or strictly for compliance with the MCARE Act. While it has yet to be determined how the appellate courts will handle the issue of the discoverability of incident reports in the future, the decision in this case is in line with the recent trend of other Pennsylvania trial courts.
by Mark Bauman | Jun 9, 2023 | Legal News, Medical Malpractice
The Pennsylvania Superior Court recently overruled a trial court decision to sustain preliminary objections, and allowed a plaintiff to proceed with vicarious liability and corporate negligence claims against a Philadelphia hospital. In doing so, the three-judge panel reiterated the sufficient level of specificity required when alleging negligence of unidentified agents.
The case at issue involved a man who fell from his hospital bed after undergoing surgery and dislodged his catheter. As a result, the patient underwent a second surgery to reinsert the catheter, during which his bladder was injured. When closing, a surgeon left gauze inside the patient’s abdomen. The patient died of septic shock less than one month later. The patient’s estate sued the two physicians who were eventually dismissed as well as the hospital for the allegedly negligent action that resulted in the patient’s death and asserted claims of medical negligence, vicarious negligence, and corporate negligence.
In its complaint, the estate did not identify the surgeons, nurses, or other hospital employees in its vicarious liability count. The hospital therefore filed preliminary objections as to unnamed agents, claiming that the plaintiff failed to name its allegedly liable staff with specificity to form an agency relationship. The hospital also later filed a motion in limine to preclude plaintiff’s corporate negligence claim for failure to plead the claim with sufficient specificity. The Philadelphia Court of Common Pleas sustained the preliminary objections and granted the motion in limine, and the estate moved for an appeal.
Judge Christine L. Donohue authored the Superior Court opinion that overturned the trial court’s decision. In the opinion, Judge Donohue looked to the recent Sokolsky v. Eidelman decision in which the Superior Court stated that failing to name specific employees did not preclude a plaintiff’s claim against an employer so long as those employees acted negligently during the course and within the scope of their employment. Judge Donohue explained that the identities of the allegedly offending employees either were known by the hospital or could be ascertained during discovery. Further, when the estate’s references to the unnamed individuals were read in context with the allegations, Judge Donohue found that the allegations were sufficiently specific.
Judge Donohue also found the estate’s claim for corporate negligence was sufficient because the estate had plead enough facts to support a finding that the hospital violated its duty to retain competent medical personnel. Although again no particular names were provided in the complaint, Judge Donohue stated that the allegations described of a physician stitching a piece of gauze inside a patient would likely allow a fact finder to decide whether the physician lacked the requisite skill and that therefore the hospital breached its duty to the patient by hiring an incompetent physician. Additionally, she cited the lower court’s trial opinion that stated that merely the fact that the patient’s catheter became dislodged could be indicative of the hospital’s failure to maintain adequate medical equipment. As the estate alleged that the hospital had actual and constructive knowledge of the physician’s skill and the equipment being used, Judge Donohue found that the estate sufficiently plead a cause of action for corporate negligence.
by Mark Bauman | Jun 8, 2023 | Legal News, Medical Malpractice
The Pennsylvania Supreme Court recently declined to follow the Superior Court’s November 2013 prescription for a blanket prohibition of evidence of informed consent in medical malpractice cases. In doing so, however, the Supreme Court affirmed the long held finding that a patient’s consent to a medical procedure is immaterial as to the question of negligence and affirmed the Superior Court’s grant for a new trial in Brady v. Urbas, D.P.M.
As reported previously, the original case began when a woman sued her podiatrist in 2010 for injuries related to a series of foot surgeries that she claimed were negligently performed. Prior to trial, the plaintiff filed a motion in limine to preclude the defendant podiatrist from introducing any evidence of the informed consent forms the patient signed, arguing that informed consent was not a defense to negligence and was irrelevant as to whether the podiatrist breached the standard of care. The motion was denied. Consequently, the podiatrist’s counsel referred to the consent form during trial. The jury returned a defense verdict and the plaintiff filed an appeal.
Then, on November 12, 2013, the Pennsylvania Superior Court held that the trial court abused its discretion by allowing references to the patient’s consent and granted a new trial. In doing so, the Superior Court adopted a complete ban on evidence of informed consent on the basis that such evidence may lead a jury to conflate the two separate concepts of accepting the risks of surgery and negligence occurring during a surgery. On July 26, 2014, the Supreme Court granted the podiatrist’s petition.
The podiatrist argued before the Supreme Court that the consent-related conversations he held with the plaintiff helped define the standard of care and the expected outcomes. The podiatrist also criticized the Superior Court’s adoption of a per se rule and its failure to balance the consent discussion’s relevance under Rule 403 of the Pennsylvania Rules of Evidence.
In writing for the majority, Chief Justice Thomas G. Saylor stated that evidence of informed consent might be relevant if the standard of care requires a physician to discuss the risks of a procedure with a patient, as well as to establish that standard. Chief Justice Saylor also reiterated that the evidentiary standard for evidence is low as evidence is relevant if it has “any tendency to make a fact more or less probable than it would be would be without the evidence.” Accordingly, the Supreme Court declined to endorse the Superior Court’s blanket prohibition of such evidence to the extent such a ban would be construed to mean that all aspects of informed consent were always irrelevant in medical malpractice cases.
Despite that holding, however, Justice Saylor noted previous findings that a patient’s consent to a procedure does not equate to the probability that a physician was negligent when either considering whether the patient was an appropriate candidate or during the surgery itself. “Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care. The patient’s actual, affirmative consent, therefore, is irrelevant to the question of defense.” Further, the Supreme Court found that, in cases were a plaintiff does not allege failure to obtain informed consent, evidence that the patient consented to a medical procedure is irrelevant. Thus, while avoiding a blanket prohibition, the Supreme Court held that informed consent is generally irrelevant in medical malpractice cases except in narrow instances.
The Supreme Court also discussed the danger created when a jury wrongfully believes that a patient’s consent to a procedure equated to consenting to any injuries that may result from that procedure. Specifically with this case, the Supreme Court noted the possibility that the jury may have improperly interpreted the plaintiff’s trial testimony about signing the consent forms. The defense included multiple references to the consent during summation, and shortly after the jury returned a verdict in favor of the podiatrist. The Supreme Court therefore cautioned that the jury’s verdict mistakenly interpreted the evidence of the plaintiff’s consent.
by Mark Bauman | Jun 7, 2023 | Legal News, Medical Malpractice
On March 5, 2015, the Pennsylvania Superior Court reversed the Philadelphia Court of Common Pleas’ grant of summary judgment in a case involving a surgical tube left in a man’s chest after surgery and that remained in the man until he died. Following his death, the patient’s executor sued the surgeon and the hospital where the surgery occurred.
The case stemmed from a coronary artery bypass surgery performed in July 2004 during which the defendant surgeon failed to remove the entire chest tube before closing the patient. The plaintiff, the patient’s executor, alleged that the chest tube created a fibrotic reaction in the left pleural space in his lungs, as well as other symptoms, lung damage, anxiety, and depression. Most importantly for the viability of the claim, plaintiff alleged that the patient did not learn that the retained chest pain caused any complications until 2012. In 2009, however, the patient underwent a CT scan that revealed the retained chest tube. That same year, one of the patient’s physicians advised the patient that removing the chest tube at that point would likely cause more harm than good.
Based on this timeline, the defendants filed a motion for summary judgment and maintained that the patient’s knowledge of the retained chest tube in 2009 trigged the two-year period for him to file a suit and that he was precluded from doing so after 2011. Instead, the plaintiff sued the hospital and the surgeon in 2012. The plaintiff argued that, although the patient was aware of the retained tube in 2009, his physicians did not advise him of any risks that its presence created or any harm it had caused him. Rather, the patient did not learn of the link between the retained tube and his deteriorating health until he developed a pleural effusion. Accordingly, because there was a “genuine issue of material fact” as to when the patient discovered an actual injury, the plaintiff argued that summary judgment was inappropriate. The trial court granted the motion and the patient’s estate appealed.
On appeal, the three-judge Superior Court panel reviewed Pennsylvania’s current interpretation of the statute of limitations and the discovery rule. The trial court had found that the presence of the tube itself was an actionable injury that triggered the two-year timeframe during which the patient could sue his surgeon and the hospital. The Superior Court, in analyzing a similar case, found otherwise “as the mere existence of a foreign object retained in a person’s body does not amount of a medical malpractice cause of action.” Instead, the triggering issue is whether the patient suffered a compensable injury due to a retained object because a plaintiff must prove both a breach of the standard of care as well as that the breach caused the plaintiff harm.
The Superior Court also reviewed the discovery rule, which serves to toll the statute of limitations for a patient who does not ascertain whether he or she had been injured until a certain amount of time elapses. The running of the clock does not start at the time the injury occurs but rather it begins ticking when the patient discovers or should have discovered the harm. Here, while the patient learned that the chest tube remained inside of him in 2009, his physician informed him that there was no infection and that the retained tube did not seem to cause him a problem. According to the medical records and deposition testimony, the patient did not learn that he had suffered any harm until sometime between 2011 and 2012, during a subsequent physician visit as documented by an undated office note.
Based on these findings and discrepancies, the panel held that a jury should decide when the patient knew he had been harmed to determine whether the statute of limitations precluded his lawsuit. The Superior Court reversed the trial court’s grant of summary judgment and remanded the case for further proceedings.
