by Mark Bauman | May 24, 2023 | Health Care Law, Legal News
The PA Superior Court has held that a hospital waived the attorney-client and work-product privilege by forwarding correspondence written by their counsel regarding the naming of the doctor accused of performing medically-unnecessary stents, to a public relations firm the hospital hired to manage the public announcement concerning the overuse of stents.
In BouSamra v. Excela Health, 2017 PA Super 66 (Pa. Super. Ct. Mar. 13, 2017), the hospital hired an outside peer review organization to evaluate the stent utilization by physicians at the hospital. The organization’s report revealed that appellee doctor had performed unnecessary stent implants and the doctor subsequently heard about the report and resigned before his staff privileges were suspended. A second outside peer review corporation, hired by the hospital concluded that the doctor had overestimated arterial blockage and inappropriately treated mild narrowing with stents. The hospital then publicly announced the results and informed the affected patients.
The doctor sued alleging that the two peer review proceedings were pretextual and conducted in bad faith and assisted intentional interference with an existing and potential contractual relationship with defamation. During the discovery phase, appellee doctor sought production of documents related to planning and reasoning on the disclosure to the media of the peer review reports and naming the doctor. The hospital objected on attorney-client privilege and work-product doctrine grounds.
The doctor learned that a principal of the public relations firm hired by the hospital had received a letter written by outside counsel for the hospital concerning the public naming of the doctor. The doctor filed a motion to compel and the discovery master held that the attorney-client privilege applied. The doctor subsequently filed exceptions to the master’s ruling and the trial court held that the hospital had waived the attorney-client privilege by disseminating the letter to a third party – the public relations firm. The hospital appealed.
The hospital’s reliance on United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) failed because the hospital could not show that the public relations firm was hired to aid in rendering legal advice on whether the doctor could be named or not. The hospital also failed to show that the public relations firm was an agent of the attorney and gave legal advice. The work product privilege was also waived by disclosing the correspondence to a third party, the public relations firm.
by Mark Bauman | May 24, 2023 | Legal News, Medical Malpractice
An evenly split Pennsylvania Supreme Court recently upheld the Superior Court’s 2011 finding that the Pennsylvania Rules of Civil Procedure prohibited an orthopedic group from supplying correspondence between a plaintiff’s attorney and the physician who treated the plaintiff and then was later retained as an expert witness. The six Supreme Court justices who participated in the decision cited tension between the attorney work-product privilege scope and expert witness disclosures; however, they were divided as to whether the procedural rules supported a clearly defined—or “bright-line”—rule barring discovery of such communications. As a result, the Superior Court’s decision stands.
The underlying case, Barrick v. Holy Spirit Hospital of the Sisters of the Christian Charity, et al., involved a plaintiff who allegedly suffered a spinal cord injury when a chair in the hospital’s cafeteria collapsed beneath him. The plaintiff sought treatment from an orthopedic surgeon who he later hired as his trial expert. During the course of discovery, the co-defendant management company subpoenaed the surgeon’s office for the plaintiff’s medical records. The office informed the management company that it would produce the records but would withhold information unrelated to the plaintiffs’ treatment. The management company filed a motion to compel the office to produce the entire file. In response, the office argued that the withheld materials were subject to protection under Pa.R.C.P. 4003.3 as trial preparation material. The trial court judge reviewed the material privately in chambers (known as in camera review) and subsequently allowed its release to the defendant.
Plaintiff appealed the decision to the Superior Court. Initially, a three-judge panel agreed with the trial court judgment. Plaintiff sought an en banc reargument and, on November 23, 2011, the Superior Court reversed the panel’s decision. Newly appointed Supreme Court Justice Correale Stevens had sat on the en banc panel and thus recused himself when the case was brought before the Supreme Court in August 2013.
Justice Max Baer authored an opinion joined by Justices Debra Todd and Seamus McCafferey in support of the Superior Court’s decision. Justice Baer wrote that Pennsylvania Rules of Civil Procedure 4003.3 and 4003.5 “attempt to balance the competing policies of promoting the truth-determining process through liberal discovery but also protect attorney work product from discovery to encourage efficient and effective client representation.” As such, “it is preferable to err on the side of protecting the attorney’s work-product by providing a bright-line rule barring discovery of attorney-expert communication.” A bright-line rule is also supported by a proposed amendment from the Court’s Procedural Rules Committee to Rule 4003.5. Justice Baer highlighted this proposal for its stance that Pennsylvania practice does not typically encompass seeking these communications to begin with. Further, the information sought could be procured through interrogatories and, if appropriate, upon cause shown to the trial courts. Expert witnesses may also be cross-examined about their opinions.
Concerning the in camera process to weed out discoverable substantive facts, Justice Baer wrote that failing to establish a bright-line rule would lead to unnecessary delay in the discovery process. “Moreover, the in camera review process could potentially result in the erroneous disclose of attorney-expert witness correspondence, which will not only invade protected core work product but, in a worst case scenario, would also constitute prejudicial error necessitating an appellate court’s grant of a new trial with all the inefficiencies, burdens, and costs attendant thereto.”
Justice Thomas Saylor, writing for the dissent, disagreed and wrote that, “if a communication contains a mixture of such work product and other material, both sets of policy objectives are served if that portion of the document consisting of core work-product is protected, while the remainder is subject to discovery.” He held that the Pennsylvania Rules of Civil Procedure allow for broad discovery and “simply do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert.”
by Mark Bauman | May 24, 2023 | Legal News, Medical Malpractice
New York Presbyterian Hospital and Columbia University recently agreed to pay a combined total of $4.8 million for their failure to secure thousands of patients’ electronic protected health information (“ePHI”) held on a shared network. This fine is the largest ever Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) settlement to date.
Although two separate entities, New York Presbyterian and Columbia University operate under a joint arrangement whereby Columbia faculty serve as attending physicians under the banner of “New York Presbyterian Hospital/Columbia University Medical Center.” The two institutions also share a data network and firewall that both entities maintain. The U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) investigated the matter and determined the breach occurred when a Columbia physician attempted to deactivate a personally owned computer server on the shared network, which contained patient ePHI. In doing so, the ePHI became accessible through the internet, even through search engines.
The OCR investigation began when the entities received a complaint in September 2010 from an individual who found the ePHI of his deceased partner, who had been a patient at New York Presbyterian, on the internet. The exposed ePHI of nearly 7,000 patients included their status, vital signs, medications, and laboratory results. The two institutions submitted a joint breach report on September 27, 2010 detailing the disclosure and notified the affected individuals personally, as well as media outlets. In a joint statement, New York Presbyterian and Columbia University provided that there was no evidence of any inappropriate use of the disclosed information.
In addition to the breach, the OCR determined that New York Presbyterian and Columbia University both lacked sufficient software and security safeguards to prevent such a breach from occurring. Further, neither entity had performed a thorough risk analysis to identify all the systems that have access to ePHI. Thus, they had never developed an adequate risk management plan to address potential confidentiality breaches. New York Presbyterian also had insufficient policies for authorizing access to its databases and failed to comply with its own policies on information access management.
Due to the breach and these deficiencies, New York Presbyterian agreed to pay $3,300,000 in fines and Columbia University agreed to pay $1,500,000. Both entities will conduct a risk analysis, revise their risk management plans and policies, and provide the OCR with updates as to their progress as part of their settlement.
Acting Deputy Director of Health Information Privacy for OCR, Christina Heide, advised that entities who share joint compliance arrangements also “share the burden of addressing the risks to protected health information.” She further provided that this case should warn healthcare institutions about how crucial their data security is when managing information systems.
by Mark Bauman | May 23, 2023 | Legal News, Medical Malpractice
In reviewing its ruling in Matharu v. Muir, 29 A.3d 375 (2011), the Pennsylvania Superior Court unanimously held that physicians owe a duty of care to their patients’ unborn children. The en banc panel distinguished this finding from the 2012 Seebold v. Prison Health Services case in which it held that physicians do not have a third-party duty of care to warn corrections officers that the inmates they watch have communicable diseases.
The Supreme Court vacated the Superior Court’s 2011 ruling in Matharu last year and asked it to review its analysis in light of the fact it declined to extend a third-party duty to the physicians in Seebold. In response, Judge Christine L. Donohue authored a lengthy opinion that delineated the relationships between defendant doctors and third-party non-patients in Seebold and between defendant physicians and readily foreseeable future children in Matharu.
In the underlying case, a woman learned she had Rh-negative blood during her first pregnancy. Her husband had Rh-positive blood, meaning a child they conceived could have Rh-positive blood as well. The fetus’ Rh-positive blood could enter the mother’s bloodstream, which could trigger a reaction known as isoimmunization in which the mother’s body rejects the fetus. To prevent that from happening, her obstetricians injected her with RhoGAM.
The plaintiff-mother came under the care of the defendant-physicians during her second pregnancy in 1998. These physicians did not administer RhoGAM and she became isoimmunized during her third trimester. While pregnant in 2005, the mother and infant encountered complications that required an emergency Cesarean section. The child died two days after birth. As a result, the parents sued the defendants for failing to administer RhoGAM during the second pregnancy, thus creating a danger for future children.
The physicians argued that the parents could not establish that they owed the infant a duty of care. The Superior Court held otherwise and stated that the defendants knew that administering RhoGAM protects future, unborn children. Accordingly, the plaintiff-parents’ future children fell within a class whose life depended on the treatment rendered by the defendants.
In reaffirming the Superior Court’s 2011 ruling, Judge Donohue held that the harm occurred during the plaintiff-mother’s patient-physician relationship as a contrast to the relationship the defendant physicians had to corrections officers in Seebold. Thus, Judge Donohue explained, the Superior Court did not create a new duty of care in Marathu but rather relied on the well-accepted standard articulated in the Restatement (Second) of Torts. Section 324A provides that a person who renders care to another that is necessary for protecting a third person is subjected to liability to the third person for harm that arises from failing to exercise reasonable care. In applying that rule to Marathu, the deceased infant fell into this category as a future third person harmed by the defendant-physicians’ failure to administer the medication needed to prevent harm to the plaintiff-mother’s future, unborn children.
by Mark Bauman | May 23, 2023 | Health Care Law, Legal News
Overturning the trial court’s dismissal of the plaintiff’s lawsuit on preliminary objections, the Superior Court recently held that while a hospital was entitled to the limited immunity protections afforded it by the Mental Health Procedures Act (MHPA), the complaint had pled sufficient facts that, if true, could be found by a jury to constitute gross negligence.
In Martin v. Holy Spirit Hospital, 2017 Pa.Super. 11 (on appeal from Cumberland County Court of Common Pleas), the decedent had attempted suicide and was pulled from a second-story window by police. She was taken to the emergency room at Holy Spirit Hospital. There, the nursing staff recorded the decedent’s history of a suicide attempt and active suicidal thoughts, including a notation of “CRISIS; SUICIDAL.” The plaintiff alleged that a mental health protocol was initiated, and the decedent’s street clothes were removed and replaced with a hospital gown and slippers.
The plaintiff alleged that after about ninety minutes, the decedent still had not been seen or evaluated by a physician, and she was left unattended. She then walked past one nurses’ station and one billing desk, opened two sets of exit doors in the emergency room, then passed another nurses’ station and exited to the outside through sliding glass doors, all while gripping her head and wearing a hospital gown and slippers. Soon thereafter, the police responded to an accident on US 15, where the decedent was pronounced dead as a result of a motor vehicle collision. Her death was ruled a suicide by the county coroner.
Pennsylvania’s Department of Health conducted an investigation as a result of these events and found that this had been the ninth elopement of a mental health crisis patient from the emergency room without any crisis intervention evaluation in three and one-half months.
Plaintiff filed suit, and Holy Spirit Hospital filed preliminary objections on the basis of demurrer, alleging that it was entitled to immunity from this lawsuit in accordance with the MHPA, 50 P.S. §§ 7101-7503. The MHPA provides limited immunity to facilities providing mental health treatment absent willful misconduct or gross negligence. The trial court sustained Holy Spirit Hospital’s preliminary objections and dismissed the lawsuit, finding that the allegations did not amount to gross negligence so as to overcome the immunity provision of the MHPA.
The plaintiff appealed on two bases: (1) that the MHPA did not apply because the decedent had not seen a physician and thus was not being treated so as to trigger the MHPA; or (2) the facts as pled were sufficient to show gross negligence under the MHPA.
First, the Superior Court found that the MHPA was triggered by the facts alleged because the decedent was seen by trained nursing staff and some medical care had been provided. The complaint alleged that the nurses had taken the decedent’s history and given her a bed, hospital gown and slippers, and orange juice. The Court distinguished this case from Fogg v. Paoli Mem’l Hosp., 686 A.2d 1355 (Pa.Super. 1996), in which it had held a decedent had not received treatment for purposes of the MHPA. In that case, the decedent had waited in the emergency room and then proceeded down a hallway unescorted. He then ran towards a window, crashing through it and landing on a concrete driveway two stories below. In Fogg, the decedent had not seen any healthcare professionals; in this case, the Court reasoned, the decedent was seen and evaluated by nursing staff.
Because the Court found that Holy Spirit properly invoked the MHPA, it reviewed the alleged facts to determine whether gross negligence was adequately pled to permit further discovery. The Court noted that gross negligence is defined as “flagrant, grossly deviating from the ordinary standard of care.”[1] The Court also noted that whether the facts amount to gross negligence is a question for the jury. A court may take the issue from the jury only when the case is entirely free from doubt, and no reasonable jury could find that the acts or omissions constituted gross negligence.
The Court then quoted nearly thirty paragraphs from the plaintiff’s third amended complaint, which described how the decedent walked past a nurses’ station, past the ER discharge and billing desk, through two sets of unlocked exit doors to the emergency room lobby, past another nurses’ station, and then through sliding glass doors to the outside, all while gripping her head and wearing a hospital gown and slippers. The plaintiff also alleged that the hospital had notice of a problem with mental health crisis patients eloping, according the Department of Health’s investigation, and failed to take any action to protect future patients.
The Court held that these alleged facts were sufficient for a reasonable jury to find the hospital was grossly negligent. The Court noted that the plaintiff alleged that the hospital failed to take adequate precautions, failed to follow its own protocols, failed to monitor the decedent, failed to evaluate the patient for ninety minutes, and that this was the ninth mental health crisis patient in three and one-half months to elope from the emergency room. These facts, upon further development, could be found by a jury to constitute gross negligence.[2] Therefore, the trial court’s order of dismissal was reversed and the case was remanded for further proceedings.
[1] Citing Albright v. Abington Memorial Hosp., 548 Pa. 268 (1997).
[2] The Court cited to its similar holding in Bloom v. Dubois Regional Medical Center, 409 Pa.Super. 83 (1991) (reversing dismissal of case on preliminary objections based on immunity pursuant to MHPA, finding pleading alleged sufficient facts that if developed, may permit jury to find hospital’s acts constituted gross negligence).
by Mark Bauman | May 22, 2023 | Legal News, Medical Malpractice
As previously reported on obrlaw.com, on May 23, 2012, the Supreme Court of Pennsylvania granted petitions for allowance of appeal filed on behalf of a defendant physician and her practice group, to address the Superior Court’s analysis of the “error in judgment” defense in the underlying case of Passarello v. Grumbine, M.D., et al., 29 A.3d 1158 (Pa. Super. 2011).
On February 7th, 2014, a divided Pennsylvania Supreme Court prohibited the “error in judgment” jury instruction from medical malpractice cases as it creates a risk of clouding jurors’ understanding of the applicable standard of care. Previously, this defense supported the belief that physicians should not be liable for errors of judgment when their care met the standard of care. The Pennsylvania Superior and Supreme Court have both found that this defense injects a subjective view into what should be an objective inquiry into whether a defendant physician was negligent.
The case underlying the Supreme Court holding stems from the death of a two-month-old infant in 2001. The child’s parents sued their pediatrician, who had seen the infant multiple times after his birth and diagnosed him with gastroesophageal reflux. The parents eventually brought their son to the emergency room where he died of an acute heart infection.
During trial, plaintiffs’ counsel failed to object to the error in judgment jury instruction and the jury found for the defense. As a result, the plaintiffs appealed to the Superior Court, which granted a new trial. The physician defendant and her practice petitioned to the Supreme Court to review the Superior Court’s analysis of the error of judgment defense, as well as the retroactive application of its decision in Pringle v. Rapaport, 980 A.2d 159 (Pa. Super. 2009). The Pringle decision had denounced the defense in medical malpractice actions based on its potential for confusion. The Supreme Court granted their petition in 2012.
The Supreme Court’s four-justice majority opinion found that appellants failed to demonstrate that the defense was necessary when others were available. For example, the “two schools of thought” defense remains as an option to illustrate a physician’s decision-making. The Court further noted that its standard civil jury instruction committee had declined to include the error in judgment defense as a proposed instruction because of its potential to confuse jurors’ understanding of how to weigh the evidence. Finally, the court also found that the Superior Court’s reliance on Pringle was proper and that there was no reason to overturn its conclusion that the error in judgment defense was ill-suited for medical malpractice claims.
Justice Edward G. Saylor authored a dissenting and concurring opinion against applying Pringle retroactively to the instant matter. He felt it should only be applied proactively. Chief Justice Ronald D. Castile and Justice J. Michael Eakin also wrote dissents. Chief Justice Castille wrote that there were times when the error in judgment instruction could be properly used in cases where the defendant had more than one viable treatment option and his decision to pursue one over the other fell within the standard of care, but nonetheless resulted in an injury or death.
