Legal news
Supreme Court of Pennsylvania Changes Venue Rules in Medical Malpractice Actions
Since 2003, Pennsylvania Rule of Civil Procedure 1006 required plaintiffs in medical malpractice actions to only file a claim in the county in which the cause of action arose, or in instances where multiple healthcare providers are defendants, any county where venue...
Pennsylvania Superior Court Vacates A Grant Of Summary Judgment Related To MCARE’s Equitable Tolling Of The Statute Of Limitations
In an opinion authored by the Honorable J. McLaughlin, the Superior Court of Pennsylvania recently vacated an entry of summary judgment based on The Medical Care Availability and Reduction of Error Act’s (“MCARE”) equitable tolling of the statute of limitations...
Pennsylvania Superior Court Remands Medical Malpractice Matter For New Trial Due To Excessive Damages And Addresses Waiver Issues
In a non-precedential opinion authored by the Honorable Mary P. Murray, the Superior Court of Pennsylvania recently remanded a medical malpractice matter for a new trial on the issue of damages based on a finding that the verdict may have been excessive....
Pennsylvania Supreme Court Finds Seven-Year Limit to Bring Forth Medical Malpractice Claims Unconstitutional
In Pennsylvania, regardless of when a medical injury was discovered, plaintiffs had only seven years from the actual causation of injury to bring forth a medical malpractice claim. The so-called limit to the discovery rule no longer applies. On October 31, 2019 the...
PA Supreme Court Holds Plaintiff Less Accountable Under Discovery Rule
On October 17, 2018, the Pennsylvania Supreme Court overturned a Superior Court ruling involving an exception to the Pennsylvania statute of limitations for medical malpractice actions. The discovery rule allows a patient to bring a claim after the statute has passed,...
PA Supreme Court Holds Peer Review Privilege Does Not Extend to Physician Practice Groups
In an opinion authored by Justice Christine Donohue, the Supreme Court of Pennsylvania recently restricted the application of the Peer Review Protection Act (PRPA). On March 27, 2018, the Court declined to extend the privilege to reviews conducted by an employee of a...
Medical Expert Witnesses May Testify Outside the Scope of Their Specialty
In an opinion authored by Senior Judge William H. Platt, the Superior Court of Pennsylvania recently addressed whether expert witnesses, specifically medical experts, can testify to matters that are not directly within their specialty. In James v. Albert Einstein...
Supreme Court of Pennsylvania Addresses Juror Bias
In an opinion authored by Justice David N. Wecht, the Supreme Court of Pennsylvania recently addressed whether certain jurors should have been presumed prejudiced and dismissed based on their indirect relationship with the defendant’s employer, who was not a party to...
Supreme Court of Pennsylvania Holds Informed Consent Is Obtained Only through Information Directly from Physicians
In an opinion authored by Justice David N. Wecht, the Supreme Court of Pennsylvania recently held that physicians cannot rely on their staff or subordinates to disclose the information required to obtain informed consent from a patient; the information must come...
UPDATE – Disputes Over Nursing Home Arbitration Agreements Flourish in Pennsylvania
The state Supreme Court recently held that arbitration agreements that include a clause specifically designating the National Arbitration Forum as sole arbitrator are invalid. In Wert v. Manorcare of Carlisle PA, LLC,[1] Evonne Wert, on behalf of the...
Disputes Over Nursing Home Arbitration Agreements Flourish in Pennsylvania
In three recent Superior Court cases, binding arbitration agreements between nursing home facilities and their residents have been under scrutiny. In Bair v. Manor Care of Elizabethtown, PA, LLC,[1] M. Sylvia Bair commenced a wrongful death...
Defendants Cannot Use ACA to Calculate Future Life Care Costs
The Honorable Kim R. Gibson of the United States District Court for the Western District of Pennsylvania recently granted a plaintiffs’ motion in limine to preclude the defendant from submitting calculations of future life care costs that were based on...
Philadelphia Judge Holds Survival Action in Nursing Home case Must be Handled via Arbitration
In a case of first impression, Philadelphia County Court of Common Pleas Judge Mark I. Bernstein held that a survivorship action, brought in conjunction with a wrongful death claim, must be sent to arbitration pursuant to the federal preemption doctrine. The...
Venue Changed after Judge Rules Sending Test Results is not Treatment
The Philadelphia County Court of Common Pleas recently issued an opinion in support of its order transferring a medical malpractice case to Berks County, holding that sending test results "does not rise to the level of rendering healthcare services" that would make...
PA Supreme Court Holds Nursing Homes and Affiliated Entities Subject to Direct Corporate Negligence Claims
In an opinion issued on November 21, 2012, the Pennsylvania Supreme Court held that a nursing home and affiliated entities are subject to potential direct liability for negligence, where the requisite resident-entity relationship exists to establish that the entity...
Court Declines to Permanently Seal Settlement Petition in MedMal Action
In Page v. Moses Taylor Hospital, et al.,[1] the Lackawanna County Court of Common Pleas denied defendants’ motion seeking to permanently seal plaintiffs’ settlement petition as well as all related filings and orders, finding that the...
Court Permits Expert Testimony Regarding Fetal Pain & Suffering Claims
In Page v. Moses Taylor Hospital, et al.,[1] the Lackawanna County Court of Common Pleas denied defendants’ motion in limine to preclude plaintiffs’ claim for pain and suffering of fetuses or, in the alternative a motion for...
House of Representatives Weighs Proposal to Ban Mandatory Arbitration Clauses in Nursing Home Agreements
Recent legislation in the U.S. House of Representatives proposes banning mandatory pre-dispute arbitration clauses in nursing home agreements. The proposed Arbitration Fairness Act of 2011 would eliminate the requirement that all claims against the nursing home...
United States Third Circuit Court of Appeals Permits Residents of County-Operated Nursing Homes the Right to Bring Claims Under 42 U.S.C. § 1983
On June 30, 2009, in an opinion offered by the Honorable Richard Lowell Nygaard, the U.S. Third Circuit Court of Appeals permitted an action against a county operated nursing home to proceed under 42 U.S.C. § 1983 for violations of the Omnibus Budget Reconciliation...
PA Supreme Court Upholds Law Barring Wrongful Birth Lawsuits
The Pennsylvania Supreme Court recently upheld a law that bars wrongful birth lawsuits. In the underlying case, Sernovitz v. Dershaw, the plaintiffs filed suit against Mrs. Sernovitz’s treating physicians for failure to inform her of circumstances that...
Pennsylvania House of Representatives Approves Punitive Damages Cap in Nursing Home Cases
The Pennsylvania House of Representatives recently approved an amendment to the Medical Care Availability and Reduction of Error (MCARE) Act, which would limit the amount of punitive damages that could be awarded in lawsuits involving medical malpractice in nursing...
UPDATE – Superior Court Clarifies Ruling Regarding Third-Party Beneficiaries of Physician-Patient Relationship
The following is an update to an earlier posting, found HERE. In an unreported memorandum opinion, Judge J. Brian Johnson denied a defendant physician’s motion for summary judgment and found that the defendant physician owed a duty of care to a non-patient where...
Discovery Rule in New Jersey Does Not Toll Statute of Limitations Pending Review of the Medical Records
The New Jersey Supreme Court recently held that the discovery rule – which can delay the accrual date of a medical malpractice action until a party discovers or should have discovered an actionable claim – is not a license for plaintiff's attorneys to endlessly search...
Court Says Skilled Nursing Care Centers Not “Purely Public Charities”; Upholds Decision Revoking Tax Exempt Status
In the case of Menno Haven, Inc. v. The Franklin County Board of Assessment and Revision of Taxes, No. 1051 C.D. 2006 (Pa. Cmwlth. 2007) two skilled nursing care centers lost their tax exempt status because they did not function as purely public charities. Menno...
PA Superior Court Rules on Informed Consent and Jury Selection
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...
Issues in Nursing Home Litigation: Negligence Per Se
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...
Child Services Law Doesn’t Bar Med-Mal Suit in Child Abuse Case
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...
New Jersey 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...
Execution of Release Bars Subsequent Medical Malpractice Lawsuit
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...
Spotlight On: 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...
Peer Reviews Initiated by Insurers Not Privileged
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...
Hospital Board Minutes Privileged in MedMal Case
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...
Nurse’s Incident Report Not Barred from Discovery in Med-Mal Case
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...
PA Superior Court Allows Vicarious and Corporate Liability Claims to Proceed Despite Unnamed Agents
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...
UPDATE: Supreme Court Rejects Bright Line Ban of Informed Consent Evidence
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...
PA Superior Court Analyzes Discovery Rule & Permits Chest Tube Case to Proceed
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,...
PA Supreme Court Hears Debate on Ostensible Agency and MCARE Limits on Expert Testimony
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...
PA Superior Court Grants New Trial due to Violation of “Collateral Source” Rule
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...
NJ Supreme Court to Decide if Physicians Must Disclose Insurance Coverage to Patients
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...
NJ Supreme Court Reverses Superior Court Ruling, Finds in Favor of Patient Safety Act’s Privilege of Self-Critical Analysis
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...
UPDATE: Court Stays Order Compelling Production of Quality Reviews, Allowing Appellate Review of Peer Review Protection Act
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...
PA Supreme Court to Test Ostensible Agency & MCARE Requirements for Non-Physician Experts
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...
Health Insurance Quality Reviews Not Privileged Under Peer Review Protection Act
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...
Carbon County Court Illustrates Proper Apportionment of Fault Amongst Settled & Non-Settled Defendants
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...
Superior Court finds Expert Witness Unnecessary in Res Ipsa Loquitur Cases
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...
Supreme Court Grants Appeal for Case Involving Informed Consent as Evidence
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...
Procedural Rules Amended to Protect Attorney-Expert Communications
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...
One Decade After Certificate of Merit & Venue Rules Implemented, Medical Malpractice Filings Normalize
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...
Hospital Waives Attorney-Client Privilege by Forwarding Counsel Letter to Public Relations Firm
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...
Divided PA Supreme Court Affirms Shielding of Attorney/Expert Communications
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...
Disclosure of Electronic Protected Health Information Leads to Record HIPAA Fine
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...
Superior Court Clarifies Ruling Regarding Third-Party Beneficiaries of Physician-Patient Relationship
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...
PA Superior Court Reverses Dismissal of Patient Escape & Suicide Suit Against Hospital
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...
Supreme Court Definitively Bans “Error in Judgment” Defense in Medical Malpractice Cases
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...
Pennsylvania Superior Court Finds Statute Banning Wrongful Birth and Wrongful Life Actions Unconstitutional
In an opinion authored on November 14, 2012, a three-judge panel unanimously found that the statute banning wrongful birth and wrongful life actions in Pennsylvania (42 Pa.C.S.A. §8305) was enacted unconstitutionally. Generally, wrongful birth is...
Superior Court Remands Defense Verdict because Admission of Breach required Finding of Negligence
The Superior Court recently remanded a medical malpractice case back to the Clarion County Court of Common Pleas after ruling that the jury erroneously found a clerk’s admitted filing error was not negligent. In writing on behalf of the unanimous...
OIG Issues Favorable Opinion Regarding Payment of Per Diem Fees to Physicians in Emergency Department
On October 23, 2012, the U.S. Department of Health and Human Services, Office of Inspector General (OIG), issued a favorable Advisory Opinion (Opinion 12-15) regarding the payment of per diem fees by hospitals to physicians providing on-call coverage to unassigned...
Superior Court Orders New Trial after Evidence of Informed Consent was Improper in Medical Negligence Case
In an opinion issued on November 12, 2013, a three-judge panel for the Pennsylvania Superior Court held that repeated references to a patient’s consent to the surgeries at issue in a medical malpractice trial were both irrelevant and unduly prejudicial. Given...
Third Circuit Court of Appeals Holds That Medicaid Liens are Not Prohibited by Anti-Lien and Anti-Recovery Provisions of The Social Security Act
In Tristani v. Richman, the United States Court of Appeals for the Third Circuit held that Medicaid liens on judgments or settlements limited to medical costs are not prohibited by the anti-lien and anti-recovery provisions of the Social Security Act, 42 U.S.C. §...
“Benevolent Gesture” Bill is Signed into Law by Governor Corbett
On the morning of October 23, 2013, Senate Bill 379, also known as the “Benevolent Gesture” Bill, was signed into law by Pennsylvania Governor Tom Corbett, after unanimous approval in both the State Senate and House of Representatives. The Benevolent Gesture Law...
Spotlight On: The New Rules for Health Care Decisions and Advance Heath Care Directives for Incompetent Patients
Act 169 of 2006, which provides a framework for making healthcare decisions on behalf of incompetent adult patients through advance health directives, went into effect on January 29, 2007. The Act allows physicians to initiate, continue, withdraw or withhold medical...
“Original Source” Exception Overcome by Focus on Documents’ Purpose in Peer Review Protection Act Analysis
An opinion from the Allegheny County Court of Common Pleas helped further shape the Peer Review Protection Act ("the Act") analysis by focusing on hospitals' efforts to improve the care they provide in ways that may not involve a traditional committee. In the...
IRS Simplifies Determination of Whether A Health Care Worker is Employee or Independent Contractor
The standards by which the IRS determines whether a worker is classified as an "employee" or an "independent contractor" have been modified. Prior to the modification which was made early in 2006, the IRS used a complex "20 factor" test, which proved difficult to use....
Eastern District of PA Dismisses Liability & Warranty Claims for Medical Device, Predicating Decision on State Lower Court Opinions
In its recent decision, Terrell v. Davol, Inc., et al., the Eastern District of Pennsylvania dismissed both a strict liability claim based on a manufacturing defect and a claim alleging a breach of the implied warranty of merchantability for a medical...
Philadelphia Judge Strikes Loss of Consortium Claim Raised by Same-Sex Couple
In an order issued July 25, 2013, a Philadelphia County Court of Common Pleas judge dismissed a loss of consortium claim raised in a medical malpractice case by a same-sex couple. The underlying case of Wolf v. Associates of Podiatric Medicine and...
Judge Emphasizes Confidentiality Provision in Peer Review Protection Act
A Court of Common Pleas judge in Monroe County granted a hospital’s protective order in part, holding that Plaintiffs may inquire about statements made by a medical quality officer to a patient concerning inconclusive results from peer-review...
District Court Dismisses “Failure to Warn” Claim Against Pharmaceutical Company
The United States District Court for the Middle District of Pennsylvania recently dismissed a “failure to warn” case against a drug manufacturer, holding that the manufacturer was not required to provide physicians with detailed instructions about the monitoring of...
Court Denies Appeal Related to Failure to Maintain Medical Records
In an opinion filed June 11, 2013, a three judge panel of the Commonwealth Court of Pennsylvania affirmed the State Board of Medicine's imposition of civil penalties upon a physician for failure to maintain medical records as required by the Medical Practice Act of...
US Court of Appeals for the Second Circuit Rules FDA’s Ban on Off-Label Marketing of Drugs Violates First Amendment’s Guarantee of Free Speech
In US v. Caronia, 703 F. 3d 149 (2d Cir. 2012), a pharmaceutical sales representative, Alfred Caronia, appealed a judgment of the United States District Court for the Eastern District of New York, which convicted him of conspiracy to introduce a misbranded...
Modified Version of “Benevolent Gesture” Statute Passed by PA Senate
Following a hearing last month, the Pennsylvania Senate has passed the Benevolent Gesture Medical Professional Liability Act. Under the Act, statements and acts of contrition by healthcare providers, if made prior to the initiation of medical malpractice...
US District Court Holds that Strict Liability Not Applicable to Manufacturers of Prescription Medical Devices
In an opinion authored on May 17, 2012, by the Honorable Eduardo C. Robreno, Jr., the United States District Court for the Eastern District of Pennsylvania held that under Pennsylvania law, strict liability cannot be imposed on manufacturers of prescription medical...
Centers for Medicare & Medicaid Services to Publish Health Care Providers’ Financial Info in September 2014
In accordance with the recently launched "National Physician Payment Transparency Program," also referred to as the "Sunshine Act," the Centers for Medicare and Medicaid Services (CMS) will begin publishing online searchable information with regard to physician and...
US Supreme Court to Decide Failure to Warn Claims in Pharmaceutical Cases
The Supreme Court of the United States heard argument in several pharmaceutical cases involving the issue of failure to warn consumers about the risks of certain drugs. The petitioners are generic drug manufacturers. The respondents are individual plaintiffs asserting...
Review of Medicare Set-Aside Not Necessary to Enforce Settlement in NJ
In an opinion published May 16, 2013, the New Jersey Superior Court, Law Division, of Atlantic County held that a settlement reached in a personal injury case was enforceable; even though it's proposed Medicare Set-Aside had not been reviewed or approved by the Center...
Judge Says Attorney Fees Must be Based on Future Damages, Not Annuity
In an opinion issued May 6, 2013, Philadelphia County Judge Mark I. Bernstein upheld a $78.4 million verdict that was awarded in a medical malpractice case approximately one year ago. Among several issues raised on appeal, it was determined that the total amount...
Court Upholds Rule Regarding “Out-of-State” Physician Sued in Philadelphia
In an opinion filed April 10, 2013, the Honorable Rosalyn K. Robinson of the Philadelphia County Court of Common Pleas held that a pediatric cardiologist in New Jersey could be sued in Philadelphia, Pennsylvania, given that 1) the defendant...
Montco Bar Reconstitutes ADR Program to Address Longstanding Personal Injury Cases
At the request of the Montgomery County Court of Common Pleas, the Montgomery Bar Association has reconstituted the former Davenport Dispute Resolution Center into the new Alternative Dispute Resolution Program. Hearings will now be conducted at the newly...
Pathologist May Give Standard of Care Testimony Against Surgeon Under MCARE Act
In an opinion issued on February 25, 2013, a three judge panel for the Superior Court affirmed a ruling by the Court of Common Pleas of Northampton County permitting a plaintiff’s pathology expert to opine on the standard of care relevant to a general surgeon in a...
Pennsylvania’s “Benevolent Gesture” Legislation Meets Opposition in Senate
One year after obtaining approval in the Pennsylvania House of Representatives, Senate Bill 379, otherwise known as Pennsylvania’s “Benevolent Gesture” law, has been tabled by the Senate, subject to being called to a vote. Released from the House of...
Northumberland County Judge Holds Settlement Agreement Discoverable Pending Jury Determination of Liability
In an issue of first impression, Northumberland County Judge Charles H. Saylor has ruled that a physician being sued for malpractice may see the confidential settlement agreement between a plaintiff and a defendant hospital, if the physician is ultimately found liable...
Third Circuit Certifies to N.J. Supreme Court Questions Regarding Applicability of Affidavit of Merit Statute
In an opinion issued on August 16, 2012, the United States Court of Appeals for the Third Circuit certified two questions to the Supreme Court of New Jersey pertaining to the state's Affidavit of Merit Statute. Specifically, the court requested clarification on 1)...
Supreme Court Grants Appeal to Consider “Error in Judgment” Defense in Medical Malpractice Cases
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...
Supreme Court Holds that Praecipe for Writ of Summons Not Sufficient to Establish Notice of a “Claim” Under MCARE Section 517
In an opinion issued May 30, 2012, the Supreme Court of Pennsylvania held that in the absence of other notice or communication of a demand, the filing of a praecipe for a writ of summons does not suffice to establish a “claim” pursuant to Section 715 of the MCARE...
National & Local Breast Implant News
National On November 17, 2006, the FDA announced that it approved the marketing of silicone gel-filled breast implants made by Allergan Corp. (formerly Inamed Corp.) and Mentor Corp. The FDA stated that "The extensive body of scientific evidence provides reasonable...
Federal Court Bars Expert Testimony to Establish Res Ipsa Loquitur’
On April 25, 2012, the United States District Court for the Eastern District of Pennsylvania issued an opinion in Mertzig v. Booth, et al., ruling that patient plaintiff would not be allowed to present expert testimony to bolster a medical malpractice claim...
Federal Court Finds Valid Claim Against Physician Pursuant to Unfair Trade Practices Act and Consumer Protection Law
In an opinion issued on April 18, 2012, District Judge Arthur J. Schwab of the United States District Court of the Western District of Pennsylvania ruled that a plaintiff’s claim under Pennsylvania’s Unfair Trade Practices Act and Consumer Protection Law (UTPCPL) was...
Superior Court Holds that Separate Award for Counsel Fees Beyond Award Found by Jury Not Authorized by MCARE Act
In a three-judge panel’s decision filed on February 6, 2012, the Superior Court of Pennsylvania, in Sayler v. Skutches, M.D., et al., 2012 WL 361400 (Pa.Super.2012), held that the Medical Care Availability and Reduction of Error (MCARE) Act did not statutorily...
Background
(1) Background: In the early 1990s, numerous lawsuits were commenced in Pennsylvania against silicone breast implant manufacturers, implanting physicians and hospitals alleging that silicone breast implants caused a host of injuries including systemic disease. The...
Lehigh County Court Holds Certificates of Merit Properly Struck when Expert Failed to Meet Requirements of MCARE Section 512
In an order issued January 31, 2012, Judge Carol K. McGinley of the Lehigh County Court of Common Pleas ruled that a judgment of non pros issued against the plaintiff in the case of Freed v. St. Luke’s Hospital, et al., was proper, thereby denying plaintiff’s...
Fair Share Act is the New Law in Pennsylvania on Joint and Several Liability
On June 28, 2011, Governor Corbett signed into law SB 1131, commonly referred to as the Fair Share Act. The Fair Share Act pertains to joint and several liability of defendants in civil litigation matters, and in short, allows parties bearing only partial...
Pennsylvania Supreme Court Holds that MCARE Must Cover Shortfall of Physicians’ Primary Insurance
In an opinion filed on April 28, 2011, the Pennsylvania Supreme Court held that the MCARE Fund was obligated to cover a shortfall in a plaintiff’s award in a case involving multiple joint tortfeasors who were held jointly and severally liable. The underlying case at...
MCARE Not Liable For All Injuries Occurring in Hospitals
On January 4, 2011, the Commonwealth Court of Pennsylvania held in Polyclinic Medical Center v. Medical Care Availability and Reduction of Error Fund, that the Medical Care Availability and Reduction of Error Fund (MCARE) is not required to provide insurance...
Allegheny County Judge Vacates Jury’s Verdict in Med Mal Case “in the Interests of Justice”
A trial court judge in Allegheny County, Pennsylvania recently took the rare step of vacating a jury's verdict in favor of the defendant doctor following a medical malpractice trial. In her written opinion, Judge Judith L. A. Friedman stated that she granted the...
Superior Court Holds Statute of Limitations Bars Legal Malpractice Claim
A unanimous Pennsylvania Superior Court panel reversed a $3.28M legal malpractice verdict against an attorney where Plaintiff-Appelle failed to timely file his claims within the two-year statute of limitations. In the underlying matter in Lorenzo v. Milner v....
Commonwealth Court Rules that MCARE Fund has No Annual Limit for Extended Claims
In a three judge panel’s opinion filed on December 21, 2010, the Commonwealth Court in West Penn Allegheny Health System d/b/a Allegheny General Hospital v. Medical Care Availability and Reduction of Error Fund (MCARE) and Kiana Townes, by Tamara Blanchard,...
District Court Considers Whether Expert Testimony in Med Mal Action Should Be Precluded on Basis of Federal Rule
United States District Court Judge William H. Yohn, Jr. recently had the opportunity to consider whether expert testimony in a medical malpractice action should be precluded on the basis of Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow...
PA Superior Court finds Communication Between Attorney and Expert Witness is Not Discoverable Unless it Forms Basis of Expert’s Opinion
In Barrick v. Holy Spirit Hospital, Sodexho Management, Inc., et al., Carl Barrick was injured on the property of Defendant, Holy Spirit Hospital, when a chair he was sitting on in the hospital cafeteria collapsed on March 29, 2006. Barrick filed suit against...
Appellate Division of New Jersey Superior Court Reexamines Entire Controversy Doctrine in Legal Malpractice Case
In Sklodowsky v. Lushis, the Appellate Division of the Superior Court of New Jersey recently had the opportunity to reexamine the application of the entire controversy doctrine to legal malpractice actions. John F. Lushis, Jr., Esquire represented Paul G....
Superior Court Grants Petition for En Banc Re-Argument in Attorney Work-Product Privilege Matter
In a three-judge panel’s decision filed on September 16, 2010, the Superior Court in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, et al. affirmed the trial court’s order of October 16, 2009, which granted the discovery and production of...
Montgomery County Judge Finds No Conflict of Interest Regarding Defense of an Insured Between Insurance Company and its Hired Attorney
In the court’s opinion of August 6, 2010, Judge Kent H. Albright refused to recognize a conflict of interest existing between Defendant-insurance company and its appointed attorney when Defendant invoked a reservation-of-rights clause to potentially limit the coverage...
Supreme Court Reaffirms Earlier Ruling in Matter re: Nurse’s Competency To Provide Expert Opinion on Issue of Causation
The Pennsylvania Superior Court, in a 2006 ruling, held that a nurse was qualified to offer expert testimony in Freed v. Geisinger Medical Ctr, 607 Pa. 225, 5 A.3d 212 (2010). The Pennsylvania Supreme Court considered Freed in June of 2009 and the...
Venue In Legal Malpractice Case Found Appropriate In County In Which Law Firm Conducts 3% Of Its Business
A client who sues its lawyer for legal malpractice may sue in any county in which the law firm regularly conducts business regardless of whether it has an office in that venue. Zampana-Barry v. Donaghue, 246 EDA 2006 (March 8, 2007). A client sued his lawyer and...
Supreme Court of Pennsylvania Holds Medical Oncologist is Qualified to Render Standard of Care Opinions Against Otolaryngologist and Radiation Oncologist Under MCARE Act
In Vicari v. Spiegel, M.D., et al., 605 Pa. 381, 989 A.2d 1277 (2010), the Supreme Court of Pennsylvania held that a medical oncologist was qualified under the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. sec. 1303.512 (“the...
New Jersey Fee Shifting
In Saffer v. Willoughby, 143 N.J. 256 (1996), the Supreme Court of New Jersey said that a negligent attorney in a legal malpractice action is responsible for the legal expenses and attorneys’ fees incurred by a wronged client in prosecuting the legal malpractice...
Allegheny County Court of Common Pleas Limits Scope of “Hindsight” Testimony
In McLane v. Valley Medical Facilities, Inc., et al., Judge R. Stanton Wettick, Jr. denied plaintiffs' motion to compel defendant cytotechnologists to testify regarding their present review of slides which they reviewed in 2003-2005. Plaintiff-wife was diagnosed...
Negligence Of Client Is Affirmative Defense In Legal Malpractice Case
The Pennsylvania Superior Court, in a matter of first impression, has held that the negligence of a client may be raised as an affirmative defense in a legal malpractice action that is based upon negligence. Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002),...
PA Supreme Court Considers Effect of Factual Admissions on Grant of Summary Judgment in Med Mal Action
In Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 981 A.2d 145 (2009), the Pennsylvania Supreme Court recently had the opportunity to consider the effect of factual admissions on the grant of summary judgment in a medical malpractice action. The...
Fewer Medical Malpractice Filings in Pennsylvania a Result of 2003 Reforms
The number of medical malpractice suits filed in the Commonwealth of Pennsylvania dipped slightly in 2008. This decrease may be attributable to two reforms instituted in 2003. These measures included a requirement that a medical malpractice case be filed in the county...
Superior Court of Pennsylvania Reinforces Liberal Standard For Qualification of Expert Witness
On January 4, 2008, the Superior Court of Pennsylvania reinforced the liberal standard for qualification of an expert witness. In Novitski v. Rusak, on appeal from the Court of Common Pleas of Luzerne County, the Superior Court affirmed the decision of the trial...
Superior Court Denies Appeal After Applying Elements of ‘Res Ipsa Loquitur’
On September 7, 2007, in a unanimous opinion regarding MacNutt v. Temple University Hospital, 2007 Pa. Super. 279, 932 A.2d 980 (Pa. Super. 2007), lead by Judge Gantman, the Pennsylvania Superior Court reviewed the trial court’s refusal to allow the...
Superior Court Affirms Lower Court’s Decision That Medicaid Regulations Relate Primarily To “A Procedure For Payment For Medical Services”
In Issac v. Jameson Memorial Hospital, 932 A.2d 924, 2007 Pa. Super. 250 (Pa. Super. 2007), the PA Superior Court was asked to decide whether Medicaid regulations (42 CFR §441.253 and 42 CFR §441.257 ), impose an additional legal standard in actions for informed...
Superior Court Holds That Beneficiary of Medical Expenses Paid by DPW for Care of Minor Child Is Parents
On August 15, 2007, the PA Superior Court, in the case of Bowmaster v. Gerald Clair and Centre Community Hospital, held that the beneficiary of medical expenses paid by DPW for the care and treatment of a minor child is the parents of the minor child as it is the...
Pennsylvania Commission On The Medical Care Availability And Reduction Of Error (MCare) Fund Submits Final Report
The Pennsylvania Commission on the MCare Fund submitted its final report November 16, 2006. The Commission, created by statute on December 22, 2005, “for the purpose of reviewing and making recommendations regarding appropriate and effective methods to address any...
New Statute Mandates That Any Amount Awarded in a Lawsuit Must Be Offset by Overdue Child Support
A recently-enacted statute, which was signed into law by Governor Rendell, states that before a prevailing party or beneficiary in a law suit can receive the proceeds from any settlement or award, that party must provide to his or her attorney a sworn statement that...
New Statute Mandates That Any Amount Awarded in a Lawsuit Must Be Offset by Overdue Child Support
A recently-enacted statute, which was signed into law by Governor Rendell, states that before a prevailing party or beneficiary in a law suit can receive the proceeds from any settlement or award, that party must provide to his or her attorney a sworn statement that...
Governor Rendell Vetoes Bill Replacing “Joint and Several Liability” in Pennsylvania
On March 28, 2006, Governor Edward G. Rendell vetoed legislation that would have replaced Pennsylvania's long-standing adherence to the doctrine of joint and several liability, in which each defendant in a legal action is responsible for the entire amount of damages...
New Jersey Aims to Protect Patients Through Physician Disciplinary Proceedings
On January 4, 2006, New Jersey enacted A.1698, which involves disciplinary actions associated with physicians' licenses to practice medicine. This legislation complements the Health Care Professional Responsibility Reporting Enhancement Act. The new...
Pennsylvania House of Representatives Approves “Benevolent Gesture” Legislation
The Pennsylvania House of Representatives approved an amendment to the Pennsylvania statutes, which would deem any benevolent gesture or admission of fault made by a healthcare provider prior to the start of a medical professional liability action inadmissible as...
New Jersey Senate and Assembly Mull Proposed Legislation to Limit Recovery of Non-Economic Damages in All Medical Malpractice Actions
Legislation has been introduced in the New Jersey Senate and Assembly which would limit the recovery of non-economic damages in all medical malpractice actions to $250,000. This would include suits against physicians, hospitals, and long-term care facilities....
Pennsylvania Supreme Court Accepts Review of Superior Court’s Ruling That Peer Review Documents Obtained During The Credentialing Process Are Not Protected By The PRPA
In an opinion authored by the Honorable Alice Beck Dubow, the Superior Court of Pennsylvania held that the Peer Review Protection Act (PRPA)[1] did not protect disclosure of professional opinions and performance evaluations of a surgeon which were obtained...
Pennsylvania Superior Court Addresses Privilege Issues Under the Patient Safety Quality Improvement Act And The Peer Review Protection Act
In an opinion authored by the Honorable Alice Dubow, the Superior Court of Pennsylvania recently ruled that a myriad of documents were not protected by the privileges provided by the Patient Safety Quality Improvement Act (“PSQIA”) and the Peer Review Protection Act...
Pennsylvania Supreme Court Vacates Superior Court Grant Of New Trial For Trial Court’s Failure To Personally Observe Voir Dire
In an opinion authored by Justice Todd, the Supreme Court of Pennsylvania recently vacated the Superior Court's grant of a new trial based on the trial court's failure to personally observe the demeanor of prospective jurors who were challenged for-cause...
New Jersey Grants Immunity to Providers Treating COVID-19 Patients
On April 13, 2020, The New Jersey legislature passed Senate Bill 2333 providing civil and criminal immunity to healthcare providers who are treating patients for COVID-19. This bill was signed into law by Governor Phil Murphy on April 14, 2020, and provides immunity...
Settling Defendants Required to Appear on Jury Verdict Sheet
In Dunlap v. Ridley Park Swim Club, et al.,1 the PA Superior Court reversed and remanded the decision of the Court of Common Pleas of Delaware County because the trial court did not include the settling defendant on the verdict sheet. ...
NJ Appellate Court Rejects Physician’s Suit Against Hospital for Revocation of Privileges
The New Jersey Appellate Division recently upheld a lower court decision to reject a surgeon's lawsuit against a hospital and its Board of Trustees based on both federal and state statutory immunity protections afforded to hospitals and participants in internal...
PA Supreme Court Ruling May Make it Easier for Defendants to Change Venue
The Supreme Court of Pennsylvania recently overturned the Superior Court’s reversal of a trial court’s decision to transfer a case from Philadelphia to Dauphin County. In doing so, the Supreme Court lowered the bar for defendants to show a...
Court of Common Pleas Permits Corporate Negligence Claim Against Professional Corporation
In a recent decision, the Court of Common Pleas determined that claims for corporate negligence were sufficiently plead against a professional corporation. In Astleford v. Delta Medix, P.C., et al.[1], the trial court held that plaintiff’s claims for...
Pennsylvania Supreme Court Amends Rules of Discovery to Include “Electronically Stored Information”
On June 6, 2012, the Pennsylvania Supreme Court entered an order amending the Pennsylvania Rules of Civil Procedure for production of documents and things, 4009.1, et seq. and 4011, to provide for discovery of "electronically stored information." The amendments take...
Supreme Court to Decide if PA Products Liability Law Should Follow Second Restatement of Torts
Pursuant to an order issued on March 26, 2013, the Supreme Court has ruled that it will hear appellate arguments on the issue of whether the analysis of the Restatement (Third) of Torts should replace the strict liability analysis of the Second Restatement. In...
Third Circuit Affirms $5 Million Punitive Damages Award in Negligent Misrepresentation Case
The U.S. Court of Appeals for the Third Circuit affirmed a $5 million punitive damages award in a dispute involving safety testing and certification of commercial heaters. In Brand Marketing Group LLC v. Intertek Testing Services, No. 14-3010 (Sept....
Committee Proposes Amendments to New Jersey Rules
The Civil Practice Rules Committee has made several recommendations for rule changes in New Jersey, which, if enacted, will affect the way lawsuits are handled in the state. Two proposed amendments in particular affect pleadings. The first proposal would benefit...
PA District Court: DPW Not Entitled to Full Amount of Lien Against Settlement Between Plaintiff and Philadelphia Housing Authority
In a memorandum opinion, the District Court for the Eastern District of Pennsylvania held that the PA Department of Public Welfare ("DPW") was not entitled to the full amount of its lien against the settlement between a plaintiff and the Philadelphia Housing...
Superior Court Permits Contractor to Recover Post-Judgment Interest, Penalties, Attorney’s Fees and Expenses Under the Contractor and Subcontractor Payment Act
In Zimmerman v. Harrisburg Fudd I, L.P., 2009 Pa.Super. 202 (2009), the Pennsylvania Superior Court, in interpreting the Contractor and Subcontractor Payment Act (CASPA), permitted plaintiff (contractor) to recover post-judgment interest, penalties, attorney's...
Superior Court of New Jersey Affirms Decision Refusing to Allocate Proceeds Following Settlement after Non-Binding Arbitration Award
In a per curiam opinion, the Superior Court of New Jersey, Appellate Division, affirmed the Law Division decision refusing to allocate proceeds following a settlement after a decision from a non-binding arbitration award which specifically allocated funds for medical...
Court Rejects Oral Modification to Written Agreement of Sale
In The Herrick Group & Associates, LLC v. K.J.T., L.P., Civil Action No. 07-CV-00628, U.S. Magistrate Judge Timothy R. Rice held that defendant (seller) did not prove the existence of an oral agreement to modify a written agreement of sale with plaintiff...
District Court Issues Opinion Pertaining to Punitive Damages and Discovery
On July 22, 2008, U.S. District Judge James M. Munley of the Middle District of Pennsylvania issued an opinion in Grosek v. Pather Transportation, Inc. requiring the Defendant to produce documents related to punitive damages in the discovery phase of...
Pennsylvania Superior Court Holds that Landlord May Not Amend Complaint to Recover Full Balance of Lease if Amount Miscalculated
In TCPF Limited Partnership v. Skatell, 2009 Pa.Super. 112 (2009) the Pennsylvania Superior Court held that when a commercial landlord confesses judgment for the “entire unexpired balance of the Term of Lease”, but the landlord miscalculates the amount due and...
Superior Court Of Pennsylvania Nullifies Reservation of Rights Clause Contained In Release Signed By Appellant
The Superior Court of Pennsylvania overturned an order for summary judgment on appeal to the extent that it nullified a reservation of rights clause contained in a release signed by appellant. In Maloney v. Prendergrast, appellant's suit centered primarily on the...
Supreme Court Of Pennsylvania Determines That Arbitration Clause Favoring Lender Is Not Presumptively Unconscionable
The Supreme Court of Pennsylvania decided on May 31, 2007 that an arbitration agreement which reserved judicial remedies in favor of a sub-prime lender was not presumptively unconscionable. A residential mortgagor instituted a lawsuit against a sub-prime lender in the...
Supreme Court of Pennsylvania Releases New Rules of Civil Procedure
Recently, the Supreme Court of Pennsylvania promulgated new Rules of Civil Procedure dealing with cross claims and joinder, certificates of merit, and notice of intent to file non pros. These rules are effective immediately. 1. Cross Claims & Joinder: Effective...
Superior Court Interprets Standard Language Contained In Inspection Contingency Of Agreement Of Sale
The Superior Court of Pennsylvania recently interpreted the standard inspection contingency language as contained in the Standard Agreement for the Sale of Real Estate endorsed by the Pennsylvania Association of Realtors (“Agreement”). Such an Agreement was executed...
A Primer on the New Mechanics’ Lien Law Amendments
In June 2006, Governor Rendell signed into law amendments to the Pennsylvania Mechanics' Lien Law of 1963. While these amendments change several aspects of the 1963 law, the most significant changes were made with regard to waivers of mechanics' liens. Specifically,...
Purely Public Purpose Exemptions from Liens
Recently, in Carter-Jones Lumber Co. v. Northwestern PA Humane Society, 913 A.2d 1002 (Pa.Cmwlth. 2006), the Court found that an animal shelter served a purely public purpose and thus rendered it exempt from mechanics’ liens under Section 1303(b) of the PA...
Rule 238 Amendment – Delay Damages
Rule 238 of the Pennsylvania Rules of Civil Procedure concerning delay damages was amended recently to incorporate the Superior Court’s requirements in Sonlin v. Abington Memorial Hospital, 748 A.2d 213 (Pa. Super. 2000). The new rule incorporates three...
Creating a Business
The first, and most important, issue is to know the limit of your liability and to protect yourself and your investment in your company by incorporating your business. In order to do this, it is important to consult with an attorney and disclose everything about your...
District Court Finds That Bank Violated The Deficiency Judgment Act When It Collected On Other Collateral
The United States District Court for the Eastern District of Pennsylvania, in a memorandum opinion denying a bank's request to dismiss a complaint, found that a bank violated the Deficiency Judgment Act when it received payment from the sale of a residential property...
What is Informed Consent?
In Hohns v. Gain, M.D., ___ A.2d. ___ (Pa. Super. 2002), the plaintiff sued a surgeon for failure to obtain informed consent prior to the performance of a repeat breast biopsy. The plaintiff had previously undergone breast biopsies in the late 1980s due to a...
Spotlight On: Employment Contracts
O'Brien & Ryan, LLP prepares and reviews employment contracts for health care practitioners, as well as for employers and employees outside of the health care industry. Typically, these contracts include a restrictive covenant, which is commonly referred to as a...
Spotlight On: Commercial Litigation
O'Brien & Ryan, LLP handles a substantial number of commercial litigation claims. Of interest, O'Brien & Ryan, LLP is currently representing a dental practice that was recently sold to a purchasing dental group. This transaction involved an asset...
Superior Court Reviews Scope of Privilege in Attorney / Third-Party Administrator Communications
In Brown v. Greyhound Lines, Inc., 2016 PA Super 108 (Pa. Super. Ct. May 24, 2016), the Pennsylvania Superior Court reviewed issues concerning the attorney-client privilege and the work product doctrine in the context of attorney and third-party administrator...
Federal Judge Reprimands Defense Counsel After Delays Regarding Slip-and-Fall Settlement
In an opinion issued April 23, 2013, U.S. District Chief Judge J. Curtis Joyner denied a plaintiff’s motion to enforce settlement, while at the same time, admonishing defense counsel for their role in delaying the same. The underlying case of Mackrides...
Superior Court Rules on Whether to Include Medicare in Verdict Payment
In a three judge panel's decision filed on November 17, 2010, the Superior Court in Zaleppa v. Seiwell affirmed an order of the trial court entered on October 26, 2009, which refused to allow the Appellant to pay the underlying verdict either (1) by naming...
3rd Circuit Court of Appeals Upholds Earlier Prediction Regarding Adoption of Third Restatement in Pennsylvania
In an opinion issued on July 12, 2011, the United States Court of Appeals for the Third Circuit held that a defendant in a products liability case can rely on evidence that a product satisfied the standards of the U.S. Consumer Product Safety Commission. In so...
PA Superior Court Rules Pre-Accident Mental Health Records are Discoverable
In an April 26, 2010 opinion authored by the Honorable Mary Jane Bowes on behalf of a three-judge panel, the Pennsylvania Superior Court unanimously ruled that pre-accident mental health records are discoverable when plaintiffs claim they have suffered anxiety as a...
Common Pleas Court Holds That Attorney-Client Privilege Protects Communications Between Co-Defendants Engaged in Joint Defense
A Philadelphia judge has ruled that the attorney-client privilege protects communications between parties in a civil case who are engaged in a joint defense effort. Executive Risk Indemnity, Inc. v. CIGNA Corp., 2006 Phil. Ct. Com. Pl. Lexis 328 (2006). This...
Wrongful Death Proceeds May Be Recovered by Adult Emancipated Child
On December 6, 2006, the Superior Court of Pennsylvania found that an emancipated daughter of a decedent suffered a pecuniary loss when her deceased father had provided gifts to her in the past with sufficient frequency that she had a reasonable expectation that the...
Challenge to Improper Venue May Only be Made in Preliminary Objections
The Pennsylvania Supreme Court ruled improper venue must be raised by preliminary objection and if not so raised shall be waived. Zappala v. Brandolini Property Management, Inc. (Pa. November 27, 2006). This personal injury case was filed against various...
Pennsylvania Supreme Court Finds That The Bankruptcy Code Preempts State Law Dragonetti Claims
In a case of first impression, the Pennsylvania Supreme Court found that state court wrongful use of civil proceedings and abuse of process claims (Dragonetti claims) which are based on frivolous claims filed in Bankruptcy Court are pre-empted by the Bankruptcy...
Supreme Court Makes Pennsylvania an “Any-Majority Rule” State
The Pennsylvania Supreme Court refused to toss out a verdict where the same 10 jurors did not agree on each special jury interrogatory. Fritz v. Hazel Wright et. al., 907 A.2d 1083 (Pa. 2006). In Fritz, plaintiff sustained injuries when he fell on a...
Venue Against a Corporation Cannot Be Based Upon Incidental Advertising
In Kisak v. Wheeling Park Comm'n, 898 A.2d 1083 (Pa. Super. 2006), a husband and wife, residents of Pennsylvania, were playing miniature golf in West Virginia when the wife fell and sustained an injury. The miniature golf park was owned by the Wheeling Park...
Attorney-Expert Witness Contact Permitted During Break in Trial
The Pennsylvania Superior Court reversed a criminal contempt order issued by a Philadelphia Court of Common Pleas trial judge and ruled that an attorney is permitted to speak with his expert witness during a break from direct examination. Yoskowitz v. Yazdanfar,...
Employer Can Request That Employee Undergo Medical Examination
The issue of when and under what circumstances an employer can request that an employee undergo a medical examination under the Americans with Disabilities Act was recently decided in the case of Ward v. Merck & Co., 17 Am. Disabilities Cas (BNA) (E.D....
Treating Physician’s Opinion Admissible in Workers’ Compensation Hearings
The U.S. District Court for the Eastern District of Pennsylvania ruled that an Administrative Law Judge misapplied the "treating physician rule" when he concluded that a doctor's objectivity was undermined because he was an advocate for the claimant in his workers'...
Subcontractor Prohibited From Filing Mechanics’ Lien
The Superior Court of Pennsylvania dismissed a subcontractor's mechanics' lien for failure to issue the requisite notice under Pennsylvania law. Wentzel-Applewood Joint Ventures v. 801 Market Street Associates, 878 A. 2d 889 (Pa. Super. 2005). As a result of...
Non-Owned, Regularly-Used Car Exclusion Allowed in Insurance Contracts
The Pennsylvania Supreme Court has ruled that automobile insurance carriers are permitted to maintain a clause in their policies that states that the carrier has no obligation to insure a policy-holder who is driving a car that he does not own, but uses on a regular...
Certificate of Merit Requirement Extended to Federal Cases in Pennsylvania
In Scaramuzza v. Sciolla, 345 F.Supp. 2d 508 (E.D. Pa. 2004), the Plaintiff in this legal malpractice case did not timely file a Certificate of Merit. The Defendants moved for dismissal pursuant to Pa.R.C.P. 1042.3. The Plaintiff argued that the rule should...
O'Brien & Ryan News
Orthopedic Surgeon Found Not Liable by Jury on Claims of Two Unnecessary Surgeries in Delaware County
A defense verdict was recently successfully obtained by Partners Tracie A. Vizza and Lisa Peters, in Delaware County. An Orthopedic surgeon, who specializes in hips was sued on claims that he failed to appropriately diagnose the patient’s condition and, as a result,...
Defense Verdict in Philadelphia County on behalf of Podiatrist in Spinal AVM Case
Tracie A. Vizza and associate, Sarah Holtzhauer, obtained a defense verdict in Philadelphia County in a case where it was alleged that a podiatrist failed to appropriately appreciate symptoms of a neurological issue and failed to refer the patient to a neurologist. ...
Defense Verdict in Favor of Maternal Fetal Medicine Specialist in Stillbirth Case
Carolyn M. Bohmueller and Joana Gaizelyte-Lacy represented a maternal fetal medicine specialist in a four-day trial in Philadelphia Court of Common Pleas, and secured a defense verdict. The claim involved the stillbirth of fetus at 36 weeks gestation. The fetus had...
Defense Verdict in Favor of Emergency Room Physicians and Hospital in Breast Cancer Case
Attorneys Carolyn M. Bohmueller and Jamie N. Johnson secured a verdict in favor of two emergency room physicians and a hospital in a two-week trial in Philadelphia Court of Common Pleas involving a claim of failure to diagnose recurrence of breast cancer. ...
Defense Verdict on behalf of Anesthesiologist & Pain Management Physician in Epidural Steroid Case
Attorneys Michael Pitt and Mary Kay Plyter-Eigner recently received a defense verdict on behalf of an anesthesiologist and pain management physician after a one week trial in Montgomery County. Plaintiff...
Supreme Court of Pennsylvania Changes Venue Rules in Medical Malpractice Actions
Since 2003, Pennsylvania Rule of Civil Procedure 1006 required plaintiffs in medical malpractice actions to only file a claim in the county in which the cause of action arose, or in instances where multiple healthcare providers are defendants, any county where venue...
Pennsylvania Superior Court Vacates A Grant Of Summary Judgment Related To MCARE’s Equitable Tolling Of The Statute Of Limitations
In an opinion authored by the Honorable J. McLaughlin, the Superior Court of Pennsylvania recently vacated an entry of summary judgment based on The Medical Care Availability and Reduction of Error Act’s (“MCARE”) equitable tolling of the statute of limitations...
Pennsylvania Superior Court Remands Medical Malpractice Matter For New Trial Due To Excessive Damages And Addresses Waiver Issues
In a non-precedential opinion authored by the Honorable Mary P. Murray, the Superior Court of Pennsylvania recently remanded a medical malpractice matter for a new trial on the issue of damages based on a finding that the verdict may have been excessive....
Pennsylvania Supreme Court Finds Seven-Year Limit to Bring Forth Medical Malpractice Claims Unconstitutional
In Pennsylvania, regardless of when a medical injury was discovered, plaintiffs had only seven years from the actual causation of injury to bring forth a medical malpractice claim. The so-called limit to the discovery rule no longer applies. On October 31, 2019 the...
PA Supreme Court Holds Plaintiff Less Accountable Under Discovery Rule
On October 17, 2018, the Pennsylvania Supreme Court overturned a Superior Court ruling involving an exception to the Pennsylvania statute of limitations for medical malpractice actions. The discovery rule allows a patient to bring a claim after the statute has passed,...
7 OBR Attorneys Selected to 2024 Pennsylvania Super Lawyers
Each year, on a state-by-state basis, Super Lawyers selects attorneys using peer nominations and evaluations along with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement, and those selected represent the top five percent of the total lawyers in each state.
O’Brien & Ryan, LLP Mourns the Passing of Mary Ann Martillotti
It is with the most profound sadness that O’Brien & Ryan shares the news that Mary Ann Martillotti passed away on December 15, 2023.
Former O’Brien & Ryan, LLP Paralegal Returns as Associate
O’Brien & Ryan, LLP is pleased to announce that Lexi Romney, a paralegal at the firm for 11 years, has passed the PA Bar and will join the firm as an Associate.
OBR Mini Golf Event 2023
O’Brien & Ryan, LLP’s Partners hosted a mini golf event for all of its employees on Thursday, September 21st.
9 OBR Attorneys Selected to 2023 Pennsylvania Super Lawyers
Each year, on a state-by-state basis, Super Lawyers selects attorneys using peer nominations and evaluations along with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement, and those selected represent the top five percent of the total lawyers in each state.
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