by Mark Bauman | Jun 6, 2023 | Legal News, Medical Malpractice
The Supreme Court of Pennsylvania recently heard arguments on whether a hospital can be held vicariously liable for a resident physician who undertakes care of a patient without a prior physician-patient relationship, and whether a nurse employed by the hospital can offer expert testimony regarding causation at the time of trial.
A medical malpractice action was brought against a Philadelphia hospital as well as several physicians and nurses after a patient presented with shortness of breath, rapid breathing and wheezing. The patient was admitted to the intensive care unit and intubated. He remained in critical condition, and a feeding tube and tracheostomy were placed several days later by a resident. Thereafter, bleeding was discovered at the site of the procedure, and a bronchoscopy, repeat intubation and placement of a chest tube were performed. The patient ultimately died days later.
The executor of the decedent’s estate brought a claim for vicarious liability based on ostensible agency. The doctrine of ostensible agency provides that a hospital is liable when (1) a patient looks to the hospital rather than the individual physician for care; and (2) the hospital holds out the physician as its employee. At the close of plaintiff’s case, defendants moved for nonsuit on the vicarious liability claim, which was granted. In ruling on the motion for nonsuit, the trial court noted that plaintiff provided no evidence about the organizational structure of the hospital, the way the physician presented herself to the patient or whether a reasonable patient would believe she was an agent of the hospital.
In a related claim, the plaintiff argued that a nurse employed by the hospital should be permitted to offer expert testimony regarding another nurse’s actions. A motion in limine filed on behalf of defendants to preclude the nurse’s testimony was granted by the trial court.
The Superior Court found that the trial judge properly granted the motion for nonsuit against all defendants on the vicarious liability claim. The court found that the plaintiff failed to carry his burden as to the relationship between the physician he alleged was negligent and the hospital.
During oral arguments before the Supreme Court, plaintiff argued that there was evidence to establish that a resident physician within the hospital, who had no prior treatment relationship with the patient, was paged to the patient’s room. Plaintiff argued that this evidence was sufficient to show that the patient would have thought that the resident was an agent of the hospital. Defendants argued that the circumstances surrounding the resident’s involvement were unclear. They denied allegations of agency and stated that the resident was not an employee of the hospital. Justice Debra Todd noted a distinction between a medical resident in the hospital who responds to a patient issue and a doctor brought in by the patient who has staff privileges in the hospital.
Regarding the issue of expert testimony, plaintiff argued that the MCARE Act has no applicability to claims against nonphysician health care providers, i.e. a nurse. However, defendants argued that the testimony was properly precluded as the nurse was not qualified to give an expert opinion regarding the cause of death. The justices pointed out that plaintiff had multiple theories of liability, which could be detrimental to securing a plaintiff’s verdict; however, the plaintiff was willing to accept the risk.
Green v. Pennsylvania Hosp., et al., 96 A.3d 1095 (Pa. Super. Ct. 2014) (aff’d in part, rev’d in part by Green v. Pennsylvania Hosp., et al., 2015 WL 5155730 (Pa. 2015))
by Mark Bauman | Jun 5, 2023 | Legal News, Medical Malpractice
A split Pennsylvania Superior Court recently granted a new trial for a minor based on testimony elicited by defense counsel at trial regarding federal and state benefits that the minor-plaintiff received for her birth injuries. Although plaintiff’s counsel objected to such testimony at trial, the jury never received curative instructions as to how to evaluate the testimony. The Superior Court found that this prejudiced the plaintiff and warranted a new trial.
The case stemmed from the care rendered to plaintiff’s birth mother at the defendant hospital. Her mother presented to the emergency room on January 18, 2011 with complaints of a headache, contractions, and blurry vision and she reported that she used cocaine and smoked cigarettes. The mother had a small placenta as well as a history of sickle cell disease and physical trauma. The emergency physicians instructed her to return in two days, which she did on the evening of January 20, 2011. At that time, she suffered placental abruption and underwent an emergency Cesarean section delivery. The minor-plaintiff was born with severe birth defects. Her legal guardian then sued the hospital on her behalf for failure to diagnose her mother with preeclampsia, which led to the plaintiff’s injuries.
Before trial, the plaintiff dismissed additional defendants and the parties stipulated that those defendants were agents of the defendant hospital, leaving the hospital as the sole defendant on the verdict sheet. Despite that agreement, two sets of defense counsel—one for the hospital and one for its parent corporation—presented closing statements and questioned the plaintiff’s witnesses. On November 12, 2013, the jury returned a verdict for the hospital. In response, the plaintiff moved for a judgment notwithstanding the verdict or, alternatively, a new trial. The plaintiff’s motions were denied, which led to her appeal.
The plaintiff presented three questions on appeal: First, whether counsel for the parent corporation improperly informed the jury that the plaintiff’s injuries were adequately cared for through government benefits. Second, whether the court erred by not granting plaintiff a new trial when two sets of counsel were permitted to question witnesses and present closing arguments despite a stipulation that there was only one defendant. Finally, whether the court abused its discretion by permitting a dismissed physician defendant to testify as an expert witness when he was not identified as an expert witness and his opinions were undisclosed before trial. The majority found that the plaintiff was indeed entitled to a new trial because she had been prejudiced both by the testimony related to the government benefits and the fact that the testimony had been elicited by counsel for the hospital’s parent corporation, who was not a party. The majority found no issue with the physician’s testimony, as he did not proffer expert opinions.
The first issue centered on Pennsylvania’s “collateral source” rule. This rule provides that evidence of payments or compensation from a collateral source, such as insurance, shall not diminish the damages from a defendant’s wrongful conduct and evidence as to additional sources are generally inadmissible. The rule intends to avoid a situation where a plaintiff is prevented from full recovery because she has coverage from other sources. Although a plaintiff may have coverage through the government or her own insurance, the wrongdoer should not benefit from these resources by not having to compensate a harmed plaintiff. Rather, Pennsylvania finds it preferable for a plaintiff to benefit from a windfall rather than a liable defendant avoiding full responsibility for its wrongful act.
Here, the trial court record revealed that counsel for the hospital’s parent corporation questioned the plaintiff’s expert life care planner on cross-examination whether she believed that Medicaid covered the cost of the minor’s medications. Counsel then questioned the expert as to the effect of the Patient Protection and Affordable Care Act (“ACA”) on the minor’s future care costs. Plaintiffs’ counsel objected to both lines of questioning as violating the collateral source rule. The trial judge permitted the testimony; however, the jury later did not receive a curative instruction as to how it should evaluate the objectionable testimony. During his closing statements, defense counsel stated that everything that the minor required in terms of medical care, schools, and communication, she already received. In writing for the majority, Judge David N. Wecht found that the overall effect of the closing suggested that the minor’s medical costs were covered by Medicaid and the ACA, and that she therefore did not require additional compensation. The Superior Court ruled this was a “patent violation” of the collateral source rule and had improperly influenced the jury’s determination.
The Superior Court’s finding on the second issue hinged on the first. The plaintiff argued that the defendant hospital’s parent corporation should not have been allowed to have its own counsel question witnesses and close as it was not a party and its interests mirrored those of the hospital. The trial court disagreed when evaluating the plaintiff’s post-trial motions as plaintiff did not point out specific instances of prejudice. The Superior Court disagreed as the “superfluous” counsel had violated the collateral source rule, which prejudiced the plaintiff. Accordingly, there was a specific example of prejudice. Moreover, the Superior Court noted that the Pennsylvania Rules of Civil Procedure allow trial judges to limit the number of defense counsel and closings, and not doing so here was an abuse of the court’s discretion. The Superior Court therefore found that the plaintiff was entitled to a new trial based on these two issues.
Judge Eugene B. Strassburger, III authored a concurring and dissenting opinion. Although he agreed that the physician’s testimony did not constitute expert testimony, he disagreed that there were violations of the collateral source rule as the testimony would only affect the amount of damages awarded, and the jury never reached that determination because they ruled in favor for the defendant. Accordingly, no prejudice resulted. Because the second defense counsel did not prejudice the plaintiffs, Judge Strassburger also disagreed that having two defense attorneys was a reversible error.
by Mark Bauman | Jun 4, 2023 | Legal News, Medical Malpractice
The New Jersey Supreme Court recently heard arguments as to whether a physician must disclose his medical malpractice coverage for a procedure to be performed on his patient. The Court also heard arguments that, in the event that a physician did not have coverage, could the medical facility be liable for damages related to a negligently performed surgery.
Plaintiff, a long-time sufferer of back and right leg pain, sued an anesthesiologist for performing a lumbar fusion on him when the anesthesiologist’s insurance policy did not cover fusions. Under New Jersey law, doctors must carry medical liability coverage of at least $1 million per occurrence per policy year. To the extent that insurance may not be available, a physician must also have a $500,000 letter of credit. Here, the defendant anesthesiologist supplied the medical facility with the letter of credit, but his insurance did not cover lumbar fusions. Currently, when obtaining informed consent, a physician is not required to disclose his insurance coverage.
Following the lumbar fusion, the plaintiff developed increasing left leg pain to the point where he could not lift his left foot and sustained several falls. The plaintiff sued the anesthesiologist for malpractice, as well as for deceit, misrepresentation, and outrageous conduct for failing to disclose that he was not insured to perform spine surgery. In fact, the anesthesiologist’s policy contained an explicit exclusion for spinal surgery and his attempt at securing insurance for lumbar surgery had failed. The plaintiff argued that, because of the lack of insurance, he did not give informed consent to the procedure and thus the anesthesiologist’s surgery amounted to battery. The plaintiff further alleged that the surgical center wrongfully facilitated the surgery despite the anesthesiologist’s inadequate coverage.
The trial judge dismissed the coverage-related claims against the anesthesiologist and the surgical center because the plaintiff could not produce an expert to testify that the center breached the standard of care by allowing the anesthesiologist to perform the surgery without coverage. The court ultimately found for the plaintiff, awarding him $500,000 in compensatory damages, his wife $250,000 in consortium damages, and medical expenses plus interest. The Appellate Division affirmed the award but noted that the New Jersey coverage statute does not contemplate a cause of action for a noncompliant physician. Rather, the Board of Medical Examiners has the right to pursue disciplinary actions. Both the trial and appellate courts ruled that the plaintiff could not sue for deceit and battery.
Plaintiff appealed the ruling as to his coverage claims and his attorney asserted to the Supreme Court that a ruling in his client’s favor was necessary “to deter conduct which leaves patients unprotected from gross negligence or unscrupulous practitioners.” While arguments for the plaintiff centered on a plaintiff’s ability to recover for medical malpractice, the anesthesiologist’s lawyer advised that a physician could protect himself through bankruptcy if he does not have the assets to satisfy an award. Further, he argued that the current New Jersey law provided no duty to disclose whether a procedure was insured and that requiring surgeons to inform all patients of the extent of their coverage would have a chilling effect on the physician-patient relationship.
As for the surgical center, plaintiff argued that the center knew that the anesthesiologist was not fully insured and should thus be held accountable for the physician’s negligence. The New Jersey Association for Justice presented as an amicus and its attorney argued that surgical centers should be held to the same standard as hospitals when it comes to ensuring its practitioners comply with the coverage laws.
by Mark Bauman | Jun 3, 2023 | Legal News, Medical Malpractice
The New Jersey Supreme Court recently reversed a finding that an internal memorandum conducted following a roundtable review of an infant’s anoxic injury was discoverable and concluded that New Jersey’s 2004 Patient Safety Act rendered the document privileged. In light of legislation further defining the processes that healthcare facilities must follow in order to receive the Act’s absolute privilege, however, such privilege will not attach for self-critical analyses that occur after 2008 and do not comport with the legislation’s procedures.
The case at the trial level involved the delivery of a baby in a breech position. A defendant physician elected to pursue vaginal delivery, which plaintiffs alleged constituted a breach of the standard of care. At birth, the baby had an Apgars score of 2 and she was intubated. Plaintiffs claim that their daughter’s intubation tube was not functioning properly and allege that a pediatrician failed to properly resuscitate the baby. As a result, the baby suffered permanent brain damage.
Following these events, the hospital reviewed the care and several administrators documented their findings in a memorandum entitled “Director of Patient Safety Post-Incident Analysis.” The document included findings from a roundtable discussion that included several hospital administrators. Of those people, only the Director of Patient Safety was a member of the hospital’s Patient Safety Committee. The roundtable determined that the baby’s brain damage occurred because of medical complications and not any mismanagement and, therefore, the hospital did not need to report the incident. Plaintiffs moved to compel the memorandum and, after an in camera review, the trial court ruled that it was privileged under the Patient Safety Act. Plaintiffs filed for leave to appeal and brought the issue before the appellate court.
At the appellate level, the plaintiffs’ motion was remanded for further inquiry and the defendant hospital reframed its argument, basing it on the Patient Safety Act. The Act mandates healthcare facilities to establish a patient safety plan to improve the health and safety of its patients. Its intended purpose is to allow healthcare providers to report their observations and concerns freely and candidly without fear that their findings will result in repercussions during litigation. The New Jersey legislature promulgated additional regulations in 2008—after the events at issue—concerning the Act’s implementation and created additional requirements for a patient safety committee, including quarterly meetings with recorded minutes. The patient safety committee would also be charged with assembling an appropriate team to conduct root cause analyses of adverse events. Following the legislature’s enactment of these requirements, healthcare facilities must follow the outlined procedures in order to claim privilege for self-critical analyses.
At the appellate level, plaintiffs argued that the document at issue was discoverable because the hospital administrators failed to comport with the Patient Safety Act’s regulations. The appellate panel agreed and ruled that the memorandum was subject to discovery. Defendants’ sought leave to appeal to seek review of the appellate decision. The New Jersey Hospital Association and the New Jersey Association for Justice filed amicus briefs in support of the defendants and plaintiffs respectively.
The Supreme Court held 4 to 3 that the case did not take place “in the setting of the detailed regulatory scheme that now exists” following the 2008 legislation and accordingly it did not matter that the defendant hospital did not follow the policies the legislation mandated. Therefore, the Court held that the memorandum’s discovery had to be analyzed within the context of only the Patient Safety Act and its decision pivoted on whether the document was created in a “process of self-critical analysis conducted as part of a patient safety plan.” The majority of the Court determined that the analysis met the purposes of the Patient Safety Act because it attaches privilege to information generated by healthcare facilities that is part of the investigative process that may or may not lead to the reporting of adverse events to regulators.
The three dissenting justices agreed not to retroactively apply the 2008 legislation, however, they found that the hospital administrators who authored the memorandum were not a patient safety committee and accordingly their findings were not entitled to the Patient Safety Act’s absolute privilege. They held that the privilege only applied when a hospital follows the 2004 statute’s procedures, which includes implementing a patient safety plan with teams specializing in various medical disciplines to appropriately evaluate adverse events and near misses. In this case, the dissenting justices found that the roundtable investigation conducted by the hospital administrators did not constitute a review committee.
by Mark Bauman | Jun 2, 2023 | Legal News, Medical Malpractice
Last month, Lackawanna County Court of Common Pleas Judge Terrence R. Nealon granted a plaintiff’s discovery appeal in her medical malpractice case and ruled that the Peer Review Protection Act (“PRPA”) did not shield quality-of-care reviews conducted by hospital plan corporation First Priority Health IPA-HMO, a subsidiary of co-defendant Blue Cross of Northeastern Pennsylvania. Judge Nealon’s interpretation of the PRPA may now be reviewed by the Pennsylvania Superior Court, as he recently stayed his order compelling production of the quality-of-care reviews upon the motion of Blue Cross and First Priority.
In his opinion granting the stay of his August 2014 order, Judge Nealon conceded that the Pennsylvania Supreme Court case on which he based his decision—McClellan v. Health Maintenance Organization of PA—was a plurality opinion and therefore has no precedential value, as Blue Cross and First Priority argued. Accordingly, Judge Nealon stated in his most recent order that there was no appellate review of the issue whether the PRPA encompasses peer reviews conducted by hospital plan corporations. With no appellate review, Judge Nealon found that the moving defendants possessed the requisite substantial ground for difference of opinion necessary for an appeal to the Superior Court.
Despite the imminent appeal, Judge Nealon anticipated that the case is at least nine months away from trial in Lackawanna County and the issue should be decided to avoid irreparable harm that may result from prematurely exposing the reviews before their discoverable nature was defined.
by Mark Bauman | Jun 1, 2023 | Legal News, Medical Malpractice
Last month, the Pennsylvania Supreme Court granted allocatur to a case questioning whether a jury should be allowed to consider a vicarious liability claim based on a theory of ostensible agency where a physician provides emergency treatment at the behest of a hospital to a patient who was not previously her own patient. Additionally, the justices will decide whether the Medical Care Availability and Reduction of Error (“MCARE”) Act prevents nurse experts from offering causation testimony
In the case, Green v. Pennsylvania Hospital, plaintiff’s decedent presented to the emergency department with complaints of shortness of breath, rapid breathing, and wheezing, and he was admitted to the ICU. The patient also had several underlying medical conditions, including circulatory failure, respiratory failure, and an infection. After medication failed to alleviate his symptoms, the patient was intubated and he remained in critical condition. Several days later, the patient was placed on a feeding tube and received a tracheostomy. The tracheostomy site began to bleed and an emergency team was called to address the issue by performing a bronchoscopy, repeat intubation, and placing chest tubes for subcutaneous emphysema. Despite their efforts, the patient arrested and died. The executor of the patient’s estate sued the hospital and several nurses and physicians who treated the patient, alleging that their combined efforts led to the patient’s death. The executor did not sue an ear, nose, and throat (“ENT”) physician who responded to the emergency and who had privileges at the hospital, but who was not a hospital employee.
At trial, plaintiff attempted to show that the non-party ENT physician was negligent and that the hospital was vicariously liable for her actions because she was an ostensible agent of the hospital. Ostensible agency is found when a person who may not necessarily be an agent or employee would reasonably be believed to be an employee of the hospital. To prove ostensible agency under the MCARE Act, a plaintiff must demonstrate that a reasonably prudent person in the patient’s position would be justified in believing that the care in question was rendered by the hospital. If so, the hospital would be vicariously liable for that physician’s negligent actions. Here, the trial court found that the plaintiff failed to meet his burden because he did not elicit any testimony regarding the organizational structure of the hospital or the way that the ENT physician presented herself to the decedent, who was unconscious at the time. Instead, the trial testimony merely demonstrated that the plaintiff and the decedent’s brother could not recall who treated the patient and that they only saw “shadows of people.” Accordingly, the trial court entered nonsuit against the ENT physician.
The trial court also entered nonsuit against one of the nurse defendants because the plaintiff’s nursing expert had been precluded based on the MCARE Act’s requirements for expert testimony. Although plaintiff attempted to stretch a footnote caveat found in the 2012 case Freed v. Geisinger Medical Center regarding trial court discretion to allow nonphysician experts to provide medical causation testimony, the trial court ruled that the MCARE Act required an expert with a medical license to opine as to the medical causation of an alleged harm. Thus, the nurse was precluded from offering causation testimony as to the decedent’s cause of death.
On appeal, a split Superior Court authored an opinion in January of this year upholding the trial court’s findings. In writing for the majority, Senior Judge William H. Platt stated that, “Ultimately, viewing the evidence and all reasonable inferences arising from it in the light most favorable to appellant, a jury could not reasonably conclude that the elements of the cause of action had been established where appellant failed to adduce any evidence” suggesting that the ENT physician worked for the hospital when she was not a hospital employee. President Judge Susan Peikes Gantman, however, dissented as she believed that this question should be decided by a jury. She explained that, when looking at the facts in a light favoring the appellant, the record demonstrated that the ENT physician worked as part of an emergency response team set into action by the hospital. A jury would therefore be properly equipped to decide whether a reasonably prudent person would believe that the ENT physician, as past of the emergency team, acted on behalf of the hospital.
As for the discretion to permit the nurse’s causation testimony, Judge Platt stated that the plaintiff misconstrued the MCARE Act’s requirements and that permitting a nurse to testify about causation—even as it applied to the nurse defendants only—where the indivisible treatment was provided by a team would have created an “anomalous result.” Judge Gantman concurred with this conclusion. Now, the plaintiff will have his theories heard by the Pennsylvania Supreme Court to further define these issues for future lawsuits.
