O’Brien & Ryan, LLP Welcomes Three New Partners
O’Brien & Ryan, LLP is proud to announce that Jaime N. Johnson, Caitlin E. McCauley and Lisa J. Peters have become Partners in the firm!
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 case involving an alleged delay in the diagnosis of breast cancer.
In the underlying case of Renna v. Schadt, M.D., et al.,a forty six year old female filed suit against a surgeon, alleging that he deviated from the standard of care with regard to his treatment of two lesions which were found in her right breast. According to the plaintiff, the surgeon was negligent by performing a fine needle aspiration biopsy, as opposed to a more advanced diagnostic technique of computed tomography guided core biopsy. As a result of the surgeon’s conduct, the plaintiff claimed that she suffered an eleven month delay in the diagnosis of her breast cancer, which in turn necessitated more extensive treatment than would have been necessary had the diagnosis been made earlier.
To support her claim, the plaintiff sought to introduce the expert testimony of a pathologist who unlike the defendant surgeon, did not possess a board certification in general surgery. Following the close of discovery and the exchange of expert reports, the defendant moved for summary judgment, claiming that under the MCARE Act, the pathologist did not possess the necessary qualifications to provide testimony regarding the standard of care applicable to a board certified surgeon. The trial court denied defendant’s motion and ultimately, the jury returned a verdict in favor of the plaintiff. On appeal, the defendant argued the trial court abused its discretion in allowing the pathologist to opine on standard of care issues when he did not have the necessary qualifications under the MCARE Act.
On review of defendant’s appeal, the Superior Court took note of the requirement set forth in subsection 512(c) of the MCARE Act, stating that when a defendant physician is certified by an approved board, any expert opining on the standard of care applicable to that physician must be “certified by the same or a similar approved board.” 40 P.S. 1303.512(c). However, the court also noted a “catch all” provision within the Act, which notwithstanding the language in subsection 512(c), would allow such testimony “if the court determines that the expert possesses sufficient training, experience, and knowledge . . . as a result of active involvement . . . in the applicable subspecialty or a related field of medicine . . . .” 40 P.S. 1303.512(e). Thus, if the expert satisfied the criteria under subsection 512(e), the MCARE Act would allow a waiver of the board certification requirements set forth within subsection 512(c).
While the plaintiff’s pathologist clearly did not possess the same board certification as the defendant surgeon, the plaintiff argued that the pathologist was still qualified to testify on the standard of care due to his experience “in a related field of medicine.” Taking this argument into account, the court drew upon the case of Vicari v. Spiegel, 989 A.2d 1277, 1283-1284 (Pa. 2010), wherein the Supreme Court held that under MCARE Section 512(e), “the ‘relatedness’ of one field of medicine to another . . . [must] be assessed with regard to the specific care at issue.” Accordingly, such a determination would depend on “a supporting evidentiary record and questioning of the proffered expert during voir dire.” Id.
Under this rubric, the court noted that in Vicari, a plaintiff’s expert who specialized in oncology was allowed to testify regarding the standard of care applicable to a defendant otolaryngologist, when the specific care at issue did not involve surgery, but “whether the plaintiff should have been given the option of chemotherapy and a referral to a medical oncologist.” Id.
Turning to the medical care at issue in Renna, the court acknowledged that the malpractice alleged by plaintiff did not involve criticism of the defendant’s surgical technique, but rather his selection of a certain method for diagnosing cancer, i.e. a specific kind of biopsy. During the trial court’s voir dire, the court noted that the plaintiff’s pathologist had testified that in his practice, he was familiar with the biopsies at issue and was often present while they were being performed. He also stated that he had vast experience with breast cancer and that through his practice, “pathology provides the diagnosis from the specimen the surgeon provides.”
In light of this evidence, the Superior Court concluded that there was support for the trial court’s determination that a board certified pathologist practiced in a specialty sufficiently related to that of a surgeon, at least in the context of certain biopsy procedures. As a result, the court held that the pathologist could offer testimony regarding the standard of care applicable to such procedures, despite the fact they had been performed by a surgeon with a separate board certification.
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 Representatives in March 2011, the Bill deemed any admission of fault, or other “benevolent gesture” by a healthcare provider, made prior to the filing of a medical professional liability action, to be inadmissible as evidence of liability in a subsequent professional liability lawsuit.
Upon its introduction in the Senate, the Bill came under multiple criticisms which kept it in the Senate until the end of the 2012 legislative session. First, in addition to its focus on healthcare providers’ “benevolent gestures,” the Bill sought to address certain apportionments of health insurance to children ineligible for medical assistance. By addressing this “second issue,” opponents argued that the Bill violated a state constitutional mandate requiring legislation to have no more than one subject per bill. The Bill also drew criticism for its public policy implications, as its provisions barring the admissibility of “pre-suit” statements of fault had the effect of preventing not only the admission of pertinent statements regarding a patient’s discomfort, pain, injury, or death, but also statements in which a clear degree of fault or egregious violation could be implicated. In this regard, opponents of the Bill cited an example of a physician who apologized to a patient for missing a call to the hospital “because he or she was out golfing.”
Notwithstanding these criticisms, the Bill has been hailed as one encouraging benevolent gestures by healthcare providers, and in turn, It has also been argued that the Bill supports and furthers the standards of professional conduct applicable to healthcare providers, as medical ethics codes generally require a provider to disclose all facts which are necessary for a patient’s full understanding of what has occurred with regard to their condition and treatment. With a benevolent gesture law in place, proponents claim that providers would be able to make such disclosures without fear of these statements being used against them in subsequent litigation.
While legislators expect a hearing on Senate Bill 357 sometime this spring, no specific timetable has been set.
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 to the plaintiff as a joint tortfeasor. As a joint tortfeasor, Judge Saylor held that the physician may be entitled to a set-off of any amount the plaintiff had already recovered in the settlement with the hospital.
In the underlying case, plaintiff’s decedent was treated by the defendant physician at the defendant hospital. According to plaintiff’s complaint, the physician allegedly failed to diagnose an infection which ultimately contributed to the decedent’s death. The administratrix of the decedent’s estate then brought suit against the hospital and subsequently against the physician. In June 2011, the hospital settled with the estate. Thereafter, disclosure of the settlement agreement was requested by the physician, apparently to assist the physician’s counsel and insurer in evaluating a settlement offer on behalf of the physician.
To address the physician’s request, Judge Saylor first took account of how similar requests had been handled in other jurisdictions. Noting these approaches to range from full disclosure of settlement agreements “as of right” to a per se denial of discoverability, Saylor opted for the middle ground, holding that the discoverability of the agreement would be determined by balancing the interests of all parties involved, i.e. the physician, the hospital, and the estate.
As part of this balancing test, Judge Saylor sought guidance from the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S.A. 8321-8327, which addresses the effects of a tortfeasor’s release, along with the method for determining a set-off. According to Judge Saylor, the UCATA “put the wording of the agreement between [the estate] and [the hospital] in issue.” While noting that the language and terms of the settlement agreement could ultimately be discoverable under the UCATA, Judge Saylor nonetheless stated that first, “a jury must find [the defendant physician] liable before the wording of the confidential settlement agreement becomes significant for the purposes of [the statute].” Prior to this determination of the physician’s liability, Judge Saylor opined that any interest on the part of the physician in assessing the value of plaintiff’s case (based on the settlement agreement struck with the hospital) would “not [be] sufficient to override the privacy interest embodied in the confidential settlement agreement involving a third party.”
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) whether the law applies to “property damages” claims, and 2) whether the law applies to intentional torts, specifically, fraud.
The underlying case of Nuveen Municipal Trust v. WithumSmith+Brown, et al. involved a loan transaction between Nuveen and Bayonne Medical Center. In connection with the transaction, Bayonne provided Nuveen with an audit report authored by Withum, its accounting firm, as well as an opinion letter authored by its counsel, Lindabury McCormick Estabrook & Cooper. While both documents attested to the financial solvency of Bayonne, six months after the loan was executed, Bayonne filed for Chapter 11 bankruptcy. According to Nuveen, both the audit report and the opinion letter concealed problematic issues with regard to Bayonne’s financial condition, and as such, it would not have entered into the loan had it known otherwise.
Nuveen filed suit against Withum alleging fraud and against Lindabury alleging malpractice. Ultimately, the District Court of New Jersey dismissed Nuveen’s action with prejudice, holding that it had failed to timely file affidavits of merit attesting to the viability of its claims directed against each of the “professional” defendants. Under New Jersey law, such an affidavit must be filed in any action “for damages for personal injury, wrongful death, or property damage resulting from an alleged act of malpractice of negligence by a licensed professional.”
On appeal, Nuveen offered several choice-of-law arguments, claiming that the New Jersey statute which required the affidavit of merit was a procedural pleading requirement, which notably conflicted with the pleading provisions contained with Federal Rule 8. The Third Circuit rejected this argument, holding that the affidavit was neither a pleading nor a pleading requirement, and thus was inapplicable to Rule 8. Moreover, it stated that the purpose of the affidavit is not to apprise the defendant of the claims against it (as encompassed by the scope of Federal Rule 8), but rather to give some modicum of validation to professional malpractice claims.
The Third Circuit also rejected Nuveen’s arguments that it was denied various protections under New Jersey law which were intended to protect claimants from the harshness of the affidavit of merit requirement. Specifically, these protections included the New Jersey civil Case Information Sheet and the accelerated case management conference, both of which served as operative “reminders” with regard to the affidavit of merit requirement. As stated by the Third Circuit, the absence of these reminders would not preclude dismissal, as “plaintiffs (and their attorneys) are required to know the law.”
New Jersey law allows the affidavit of merit requirement to be extended or even forgiven if the plaintiff can show, among other things, “substantial compliance” with the requirement, or alternatively, some “extraordinary circumstances” warranting equitable relief. While the Third Circuit found neither of these with regard to Nuveen’s case, it was ultimately unable to determine whether the affidavit of merit requirement could be applied at all. In this regard, the Third Circuit sought to determine whether Nuveen’s action was for “damages for personal injuries, wrongful death, or property damage,” thereby requiring an analysis of the “nature of the injuries” under New Jersey law. In addition, the Third Circuit also sought to determine whether Nuveen’s claims for fraud could be regarded as those sounding in “malpractice or negligence.” Here, the Third Circuit noted that proof of malpractice was not an element of fraud, and as a result, Nuveen’s claim required a similar analysis of the operative “cause of action” under New Jersey law.
As the Third Circuit was reluctant to decide how the New Jersey Supreme Court would rule on either issue, both were certified to the Court for review.