In an issue of first impression, the Lackawanna County trial court recently declined to extend the Peer Review Protection Act to quality-of-care reviews conducted by health insurance companies, regardless of who the company hired to conduct the peer review.
In Venosh v. Henzes, M.D., et al., the plaintiff sued an orthopedic surgeon for injuries related to a total knee replacement surgery. The plaintiff was insured by First Priority Health IPA-HMO, a subsidiary of Blue Cross Northeastern Pennsylvania. Blue Cross performs quality-of-care reviews to investigate treatment rendered to its insureds by healthcare professionals and facilities. The reviews, which are typically conducted by nurse analysts, can be done at the request of insureds, healthcare providers, and facilities, or the insurance company itself.
During discovery, the plaintiff learned that the surgeon provided a statement to Blue Cross regarding the treatment she received; however, the surgeon’s attorney maintained that the statement was protected by the Peer Review Protection Act (“PRPA”). Plaintiff subpoenaed Blue Cross for the statement but encountered a similar position that the review was privileged peer review material. Blue Cross additionally filed a Motion to Quash, which a special trial master initially denied, but the decision was reversed and the master granted the motion.
During arguments, plaintiff argued that First Priority conducted the review, not the parent company, and thus the PRPA did not apply. She further contended that the review’s main purpose was for the insurer’s business as opposed to improving the quality of medical care, which is at the heart of the PRPA. Blue Cross asserted that it conducted the review and that it is not an IPA-HMO, but rather a hospital plan corporation. It further disputed that, if its reviews were discoverable, insurance companies will be reluctant to conduct quality-of-care reviews, which in turn could effect the quality of medical care in Pennsylvania.
Judge Terrence R. Nealon examined the PRPA language and held that, because Blue Cross is neither a healthcare practitioner nor operates a healthcare facility, its quality-of-care reviews are not privileged. Whether the reviews were conducted by Blue Cross or First Priority did not matter. Judge Nealon cited the 1996 Pennsylvania Supreme Court decision in McClellan v. Health Maintenance Organization of PA, which also examined these reviews conducted by HMOs and ruled that they were discoverable. He further held that the peer review privilege could be extended “to health insurance companies or hospital plan corporations only by legislative amendment.”
Judge Nealon’s decision was also not affected by Blue Cross’ retention of a third-party orthopedic surgeon to evaluate the defendant surgeon’s conduct and that the third-party surgeon’s report that was shared with the plaintiff’s providers. Hiring a third-party physician did not transform Blue Cross into a provider for the purposes of the PRPA. Rather, Judge Nealon stated that, “while it is laudable that Blue Cross conducts peer reviews of the quality and efficiency of the treatment that health care professional and facilities provide to its subscribers, only those peer reviews which are undertaken by a ‘professional health care provider’ are immune from discovery under the act.”
This decision was not the only blow to the defendants’ peer review arguments in the Venosh matter. Prior to plaintiff’s discovery appeal, the defendant hospital also argued that its event reports were privileged under the PRPA, but Judge Nealon disagreed. In writing an opinion to the hospital’s discovery appeal, Judge Nealon found that the reports were discoverable because the hospital’s reporting policy and the language contained in the event report forms indicated that the reports were not intended to be part of a quality assurance assessment and were not generated for peer review committees. The Superior Court upheld Judge Nealon’s decision in July 2014.
The Carbon County Court of Common Pleas recently denied a motion for a new trial, finding that the trial court did not err in allowing the names of defendants who settled prior to trial to remain on the verdict sheet. In doing so, the court described the way in which juries may allocate liability amongst all parties involved in a lawsuit to determine which parties were wrongdoers—or “tortfeasors”—and thus liable for the plaintiff’s damages.
Plaintiff originally sued a local hospital, a primary care physician, and physicians who subsequently treated her husband for a stroke before he died of a pulmonary embolism. In her complaint, the plaintiff alleged that the physicians negligently treated her husband and that the hospital was vicariously liable for their actions. Two of the physicians settled shortly before trial, leaving three physicians and the hospital to fight the plaintiff’s claims in court.
Because of the pretrial settlement, plaintiff moved to discontinue her suit against the settling defendants and to exclude all evidence that they were defendants. She further moved to preclude the remaining defendants the opportunity to cross-examine her expert witnesses at trial regarding their findings as to the settling defendants. The court denied her requests. At the end of the two-week trial, the jury found in favor of the remaining defendants except for the hospital, which was granted a compulsory nonsuit. Plaintiff moved for a new trial, arguing that the court erred by allowing the settling defendants’ names to remain on the jury sheet and allowing the defendants to cross-examine her medical experts as to the full scope of their opinion.
In denying plaintiff’s request, Judge Roger N. Nanovic addressed both issues. First, he explained that the remaining defendants were “entitled to have the settling defendants remain as parties in [the] action in order to establish their status as joint tortfeasors and, if found to be joint tortfeasors, to have the jury apportion or allocate liability among them” so the damages that the nonsettling defendants must pay would be proportionate to their share of the total liability to the plaintiff. If liability were apportioned to the settling defendants, then the remaining defendants’ liability, if any, would be reduced by the amount equal to the settling defendants’ liability. Accordingly, Judge Nanovic ruled that including the settling defendants’ names on the verdict sheet was “necessary for the jury to evaluate the respective fault of all tortfeasors alleged to have been negligent.”
Judge Nanovic also held that the remaining defendants were entitled to cross-examine plaintiff’s medical experts as to their opinions expressed in their reports, which included criticisms of the settling doctors. Likewise, the jury was entitled to weigh that information while assessing how to apportion liability on all physicians originally sued. In this case, Judge Nanovic noted, “the plaintiff’s expert testimony offered as to the nonsettling defendants ‘cast an equally damning light on the performance of every physician who had a hand in treating decedent.’” Therefore, he ruled, excluding the medical experts’ opinions regarding the settling defendants would wrongly create the impression that the remaining defendants were solely responsible for the death of the plaintiff’s husband.
The Pennsylvania Superior Court recently held that leaving a sponge in a patient speaks for itself and does not require an expert witness to prove negligence or causation in a medical malpractice trial.
In Fessenden v. Robert Packer Hospital, the patient underwent a surgical procedure on his esophagus and stomach, at which time a laparotomy sponge was left in his abdomen. The patient began experiencing intermittent lower abdominal pain over the next four years. Four years after the surgery, the patient returned to the emergency room with severe pain. At that time, a CT scan revealed the presence of a sponge. The patient underwent surgery to remove the sponge, an adjacent abdominal abscess, his gallbladder, and a portion of the small intestine. He then underwent another procedure which required hospitalization for a few weeks.
Leading up to trial, Plaintiffs argued that expert testimony was not necessary and they would rely on res ipsa loquitur to establish the sponge was the cause of the patient’s injuries and the defendants were negligent in failing to remove the sponge. The defendants moved for summary judgment, arguing that res ipsa loquitur was inappropriate because the plaintiffs could not prove that his injuries were caused by the sponge when four years had gone by and he had other health problems. The trial court granted summary judgment in favor of the defendants, finding the plaintiffs did not provide any evidence that their damages were caused by the sponge.
Plaintiffs appealed the ruling and the Superior Court found in their favor. Judge David Wecht ruled that the doctrine of res ipsa loquitur applied in a narrow category of medical malpractice cases that do not require expert testimony to prove an accident would not happen absent negligence. In his opinion, Judge Wecht noted the doctrine of res ipsa loquitur applies where (1) the event is of a kind that ordinarily does not occur in the absence of negligence; (2) the other responsible causes, including the conduct of the plaintiff, are sufficiently eliminated by evidence; and (3) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
Judge Wecht stated that as a matter of general knowledge, “the evidence is sufficient to conclude that, in the absence of negligence, laparotomy sponges are not left behind after abdominal surgery.” The Superior Court held there was no reason why the four-year gap and the patient’s other health issues would preclude the plaintiffs from relying on res ipsa loquitur to establish a prima facie case of negligence.
The court also rejected the defendants’ argument that this case was not clearly the type of case that courts envisioned to be submitted to a jury without expert testimony. Judge Wecht stated that, “although factually analogous cases appear to be uncommon in Pennsylvania, our courts long have cited the proverbial ‘sponge left behind’ case as a prototypical application of res ipsa loquitur.”
Following the Pennsylvania Superior Court’s November 2013 decision in Brady v. Urbas, the Supreme Court recently granted allocator to decide whether the Superior Court properly ruled that evidence of informed consent was impermissible to defend a medical malpractice case.
In Brady, a plaintiff sued her podiatrist for injuries related to several surgeries that the podiatrist performed. Her husband additionally sued for loss of consortium. Prior to trial, the plaintiffs filed a motion in limine to preclude the defendant from introducing any evidence regarding the informed consent forms the patient had signed, arguing that informed consent was not a defense to negligence and was irrelevant as to the issue of whether the defendant breached the standard of care. Their motion was denied. Consequently, the defendant’s counsel made numerous references to the informed consent form during trial and a copy of the form was sent back with the jury for deliberation. The jury returned a defense verdict. Plaintiff subsequently filed an appeal to the Superior Court.
On November 12, 2013, the Pennsylvania Superior Court held that the trial court abused its discretion by allowing repeated references to the patient’s consent, thus warranting a new trial. In doing so, the Superior Court adopted a complete ban on introducing evidence of informed consent on the basis that introducing such evidence may lead a jury to conflate the two separate concepts of accepting the risks of surgery and negligence occurring during the surgery.
The Pennsylvania Supreme Court will now decide whether such a blanket prohibition of evidence of informed consent is appropriate as opposed to allowing the trial court the discretion to rule on such evidentiary matters on a case-by-case basis.
The recent split Pennsylvania Supreme Court decision that created a definitive barrier to the discovery of attorney-expert communications is now officially part of the Pennsylvania Rules of Civil Procedure. The Court approved an amendment to Rule 4003.5 of the Pennsylvania Rules of Civil Procedure to promulgate the bright-line protection that shields from discovery any form of communication between lawyers and their retained experts. Such communications include draft expert reports and communications between other parties’ attorneys and the expert relating to such drafts. There is an exception, however, that permits discovery of these materials in “circumstances that would warrant the disclosure of privileged communications under Pennsylvania law.”
In writing his opinion for Barrick v. Holy Spirit Hospital, Justice Max Baer noted that the Civil Procedural Rules Committee had proposed a similar amendment to the rule that would extend the attorney work-product privilege to encompass attorney-expert communications. Just as the Barrick decision itself created controversy amongst the justices, the procedural rule amended was not unanimous. Justice Thomas Saylor, who wrote a dissent in Barrick, objected to the amendment, stating Justice Baer’s decision failed to account for attorney contributions to, and possible manipulations of, expert opinions.
Pennsylvania Rule of Civil Procedure 4003.5 goes into effect on August 9, 2014, and can be read here.
The Administrative Office of Pennsylvania Courts (“AOPC”) recently released statistics that illustrate the effects of the procedural changes implemented by the Pennsylvania Supreme Court in 2003 that required cases to be brought in the venue where the action arose and that each lawsuit be certified by a medical professional. After the tort reform changes were put into effect, medical malpractice cases dropped 41% across the state. They rose slightly in 2004, but then began a steady annual decline until last year. Specifically, 2013 saw a small statewide increase of 1,546 total medical malpractice filings from 1,510 filings in 2012. This number represents a -43.4% change from the 2000-2002 average of 2,733 that AOPC used as a base number.
Although Philadelphia still has the greatest number of filings, 2013 brought 7 less cases than the year before—from 389 filings in 2012 to 382 in 2013. The 7-case drop represents only a 1.8% difference; however, it marks Philadelphia County’s second lowest year for filings since 2003. This is a -68.3% change from the benchmark years of 2000-20002 when Philadelphia averaged over 1,200 cases each year.
2013 MedMal Filings – PA*
While 2013 saw a small increase in medical malpractice filings, it also saw a drop in plaintiff verdicts. Pennsylvania saw 110 cases return jury verdicts in 2013, and of those cases, 85 of the verdicts were for the defense, representing 77.3% of all medical malpractice verdicts. Montgomery County bested that average with 81.3% of its medical malpractice verdicts finding for the defense. Philadelphia County split nearly evenly in 2013 with 55% of its juries favoring the defense. In Allegheny County, where 2013 filings were up almost 5%, all of its cases that went to a jury came back for the defense. Bucks and Chester Counties also had 100% of its medical malpractice jury cases return defense verdicts. Plaintiffs faired better in Delaware County and Berks Counties where they had 33.3% of the verdicts in their favor. However, the one plaintiff verdict in Berks County was between $1 million and $5 million and both plaintiff awards in Delaware were less than $1 million.
Statewide, there were only 2 verdicts greater than $10 million in 2013; one award in Lehigh County and the other in Philadelphia County. There were no awards greater than $5 million but less than $10 million whereas the year before there were 7 such verdicts and 3 verdicts greater than $10 million.
