by Mark Bauman | May 3, 2023 | Legal News, Medical Malpractice
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).
In Passarello, a two-month old baby boy was treated several times by the defendant physician in 2001, for what was believed by the physician to be symptoms of gastroesophageal reflux. When the boy’s symptoms persisted after multiple visits, his parents brought him to a nearby emergency room, where he was ultimately determined to be in severe respiratory distress characterized by an extremely low heart rate. Despite intervention on the part of the hospital staff, the boy died from what was revealed on autopsy to be a viral infection of the heart muscle known as diffuse viral myocarditis.
Eventually, the parent plaintiffs filed suit against the defendant physician and her practice group on July 28, 2003. On April 29, 2009, the jury delivered a verdict on behalf of the defendants. Notably, during the jury charge, the trial judge instructed the jury on not only the objective standard of professional negligence, but also what amounted to the “error in judgment defense” on behalf of the defendant physician. Prior to these instructions, defense counsel had also emphasized the error in judgment doctrine in her closing argument, pointing out the physician’s state of mind and her desire to treat the patient in the manner she believed best.
Following post-trial motions, plaintiffs filed an appeal to the Superior Court, claiming that the trial court erred in charging the jury on the “error in judgment” rule, and that accordingly, the award of a new trial was warranted. Relying on the Superior Court’s holding in Pringle v. Rapaport, 908 A.2d 159 (Pa. Super. 2009), which effectively eliminated the “error in judgment” defense in medical malpractice cases, plaintiffs asserted that such an instruction “wrongly inject[ed] a subjective element into the jury’s deliberations when the standard of care for physicians is objective in nature.”
Notwithstanding the fact that the Pringle case had been filed almost six years following the complaint in Passarello, the Superior Court held that Pringle, and its effective denouncement of the “error in judgment” defense, could be retroactively applied to Passarello because the final verdict in Passarello had not been entered until after the date on which Pringle was filed.
Under the application of the Pringle case, the Superior Court determined that the award of a new trial was “imperative.” Notably, the court held that, as in Pringle, the trial court’s instruction in Passarello “gave every indication that a physician may avoid liability for otherwise negligent acts if at the time in question he had done the best he could.” Id. at 1166. Furthermore, because defense counsel gave particular focus to the defendant physician’s state of mind, the court noted that such a tactic improperly shifted the focus of the argument to the physician’s professional character, as opposed to the objective standard of care at issue. Given that counsel’s arguments effectively exploited the erroneous instruction by the trial court, the Superior Court held that the court’s error could not be minimized, and as such, a new trial was warranted.
Pursuant to its allowance of defendants’ appeal, the Court will now consider whether the Superior Court’s retroactive application of Pringle was consistent with previous rulings on retroactive application. In addition, according to the physician’s petition, the Court will examine whether the award of a new trial violated prior precedent when plaintiffs failed to object to the “error in judgment” instruction at trial, and whether, under the circumstances, the error of the trial court was truly incurable.
by Mark Bauman | May 2, 2023 | Legal News, Medical Malpractice
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 Act.
In the underlying case of Ziv v. Yussen, M.D., et al., the patient plaintiff filed a praecipe for a writ of summons naming her physician, along with other medical providers, as defendants, on June 4, 2007. On August 2, 2007, a complaint was filed, wherein the patient plaintiff alleged medical negligence, which had apparently occurred up to July 7, 2003.
Notably, the defendant physician’s primary insurer did not receive notice of the plaintiff’s writ of summons until July 23, 2007. As such, upon receipt the insurer issued a request to the State Department of Insurance that the claim be given Section 715 status under the MCARE Act. The provisions of Section 715 require the Insurance Department, through the MCARE Fund, to “assume central obligations to the primary insurer,” if a medical negligence “claim” is made more than four years after the treatment at issue. As noted by our Supreme Court,
See Pa. Med. Soc’y Liab. Ins. Co. v. Commonwealth, 577 Pa. 87, 90 n.2 (2005).
Ultimately, the Department denied the insurer’s request, stating that under Section 715, the claim had been made less than four years after the alleged malpractice. In this regard, the Department pinpointed the operative date of the “claim” to the date on which the plaintiff’s praecipe for writ of summons was filed, June 4, 2007. The insurer subsequently challenged the Department’s decision and an administrative hearing was held. However, before the Insurance Commissioner could issue a decision, the case was transferred to the Commonwealth Court and a new hearing examiner was appointed.
Following arguments, the examiner recommended that the Department’s denial of Section 715 status be reversed. According to the examiner, while the terms “claim” and “made” were ambiguous within the statutory language of Section 715, the legislative purpose of the statute, as enumerated by the Supreme Court in Pa. Med. Soc’y, could not be achieved without the appropriate notice. While the examiner further supported his position with analysis of legislative history, statutory construction, and recent adjudications by the Insurance Commissioner, the Commonwealth Court ultimately disagreed and upheld the denial of Section 715 status, holding that under the same adjudication referenced by the examiner, the position of the Insurance Commissioner was that a claim was effectively “made” on the date a writ of summons is filed.
On appeal, the Supreme Court similarly found ambiguity in the operative terms of Section 715, and like the Commonwealth Court examiner, turned its focus to principles of statutory construction and legislative history. Noting the purpose of Section 715 to afford insurers greater certainty in calculating reserves, the Court found such a purpose to be “most consonant” with a construction “encompassing some notice to the insured.” Accordingly, the Court held that a “claim” under Section 715 of the MCARE Act could not be established simply by the filing of a praecipe for a writ of summons, and that some form of notice or communication, e.g. a demand letter forwarded by defense counsel or the insured themselves, would be required before the operative time period could be established.
To read the full opinion, CLICK HERE.
by Mark Bauman | May 1, 2023 | Legal News, Silicone Breast Implant Litigation
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 assurance of the benefits and risks of these devices. This information is available in the product labeling and will enable women and their physicians to make informed decisions.”
The approval comes with conditions, however, requiring the companies to continue to conduct post-marketing research for 10 years. They also must conduct a focus group study of the patient labeling and continue laboratory studies to further characterize types of device failure. Tracking of each implant is also required in the event that health professionals and patients need to be notified of updated product information.
See the press release.
Philadelphia County
On October 28, 2003, the Honorable Victor J. DiNubile, Jr., released all 300+ pending silicone breast implant cases in the Court of Common Pleas of Philadelphia County. Monthly status conferences are held with liaison counsel, Judge DiNubile and Mary McGovern of the Complex Litigation Center in Philadelphia. Numerous Case Management Orders have been promulgated, which establish deadlines for all of the cases. Since the stay was lifted in Philadelphia County, the majority of the cases have either been discontinued or judgments of non-pros have been entered. At this point, only two cases remain active. The first trial is scheduled to begin in March of 2005.
York County
The Honorable Emanuel Cassimatis is coordinating the litigation in York County. He issued a General Scheduling Order dated April 7, 2004 which lifted the stay and established deadlines for the cases pending in York County.
All Other Pennsylvania Cases
The Honorable R. Stanton Wettick, Jr. is coordinating the litigation in all counties except Philadelphia and York. By Orders dated December 4, 2003, he lifted the stay on all cases and established deadlines. By February 2, 2004, plaintiffs were to file Statements of Intent to Proceed in certain cases. By July 1, 2004, plaintiffs were to file Information Sheets in certain remaining cases. In response to those deadlines, numerous cases were discontinued or judgments of non pros were entered. No further deadlines have been set in the remaining cases.
by Mark Bauman | May 1, 2023 | Legal News, Medical Malpractice
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 under res ipsa loquitur, given that she had previously certified that such testimony was unnecessary to prove her claim.
In the underlying case, plaintiff underwent a knee replacement surgery performed by defendant physician on May 29, 2007. Following surgery, the prosthetic components began to loosen, and she was informed that the prosthetic knee had actually been infected when it was initially placed into her body.
After filing suit against defendant, plaintiff filed certificates of merit under Pa.R.C.P. 1042.3(a)(3), certifying that expert testimony was not required to prove her claims against defendant. However, plaintiff subsequently produced expert reports in support of a theory of res ipsa loquitur. In response, defendant filed motions for summary judgment, contending that such testimony was barred pursuant to plaintiff’s previous certification under Rule 1042.3(a). Acknowledging that expert testimony was required to pursue her claims, plaintiff then argued that such certifications did not apply, given that res ipsa loquitur had been invoked.
On review, the court noted that according to the Note to Rule 1042.3(a), certifications that expert testimony is not required may not be revoked, except in the case of “exceptional circumstances.” Observing that plaintiff had failed to cite any case law stating that expert testimony may be used to establish res ipsa loquitur after such a certification had been filed, the court deferred to the guidance of the Note, and concluded that the discovery that expert testimony was required to support plaintiff’s claims did not qualify as “exceptional circumstance.”
Holding that plaintiff would be bound to her certification under Rule 1042.3(a)(3), the court further explained that under the elements of res ipsa loquitur, expert testimony must be presented in medically complex cases, in order to effectively eliminate alternate causal factors, such as, for example, the conduct of third persons. Notably, the expert reports submitted by plaintiff confirmed that the issues of causation were complex and not within the comprehension of laypersons. However, because plaintiff had certified that expert testimony was unnecessary, she was precluded under Rule 1042.3(a)(3) from relying on such testimony.
After analysis of the expert reports, the court concluded that the opinions therein failed to sufficiently eliminate other causes of plaintiff’s injury. Therefore, because plaintiff was ultimately unable to prove her case without or without the expert testimony at issue, the court granted the defendant’s motion for summary judgment.
by Mark Bauman | Apr 30, 2023 | Medical Malpractice, Uncategorized
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 sufficiently pled to withstand defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
The underlying case, Schiff v. Hurwitz, M.D., et al., involved a patient plaintiff who underwent plastic surgery at the hands of the defendant physician who maintained an office in Pittsburgh, Pennsylvania. During the initial consultation with plaintiff on April 23, 2009, defendant planned that the forthcoming surgery would be performed in two stages consisting of a “tummy tuck” and a lower body lift, respectively. However, at this time, according to plaintiff’s complaint, defendant did not discuss or document the potential risk of the device to be used in these procedures: a Radio Frequency Assisted Lipolysis (RFAL).
Almost one year later, on March 2, 2010, plaintiff presented to defendant again for placement of pre-operative markings. Again however, plaintiff alleged that the specific risks of the procedure were not discussed. The following day, defendant performed the first stage of the procedure using the RFAL device. Notably, while plaintiff was presented with an informed consent document prior to the procedure, plaintiff averred that this form was not reviewed by defendant and the risks and alternatives were not discussed. According to plaintiff’s complaint, plaintiff also happened to be unaware at this time that defendant was a paid investigator for the RFAL device, and that the device was being used for his surgery as part of a non-FDA approved clinical trial.
On March 9, 2010, approximately six days following the surgery, plaintiff began to experience pain in the areas in which the surgery had been performed. Even with prescribed medication, plaintiff alleged that the pain was uncontrollable, and that as a result of the procedure, he had been left with scarring and a residual demylinating condition.
On review of defendant’s motion to dismiss pursuant to F.R.C.P. 12(b)(6), the court noted that under the Federal Rules, plaintiffs bringing a claim are required only to provide “a short plain statement of the claim showing that [the plaintiff] [is] entitled to relief . . . .” Recognizing that there was no Pennsylvania Supreme Court precedent which applied the UTPCPL to plaintiff’s claims, the court nonetheless acknowledged that the UTPCPL was intended to protect the public and “eradicate unfair and deceptive business practices” by “plac[ing] consumers and sellers on equal terms.” Accordingly, under the UTPCPL, a plaintiff “must show that she justifiably relief on defendant’s wrongful conduct or representations and that [they] suffered harm as a result.”
With regard to plaintiff’s complaint, the court determined that such “deceptive conduct” was encompassed in the affiliation, connection, and association which defendant had with the RFAL device and its manufacturers, as well as plaintiff’s unawareness of the clinical trial with which he had been involved. Thus, because the complaint contained allegations that defendant had failed to warn plaintiff of the risks regarding the RFAL device, and that defendant misrepresented that the clinical trial had been FDA-approved, the court held that plaintiff had made a valid claim under the UTPCPL, and accordingly, denied defendant’s motion.
