by Mark Bauman | Apr 16, 2023 | Legal News, Medical Malpractice
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 plaintiff in Stimmler gave birth at Chestnut Hill Hospital in 1965. Following delivery, complications arose which required her to undergo a procedure which involved deep-needle catheterization. Over the next 35 years, the plaintiff continued to experience a number of venous maladies until an echocardiogram in 1999 revealed a coiled catheter in her heart measuring 12 to 18 inches with a chronic appearance. Suit was filed against the Hospital and various doctors alleging that the catheter was left in her body following the original 1965 procedure.
During the course of discovery, the defendants served the plaintiff with requests for admission under the Pennsylvania Rules of Civil Procedure. The plaintiff failed to respond to the admissions in the time provided under the rules, thereby deeming the request admitted, and otherwise failed to seek withdrawal of the admissions. Among other things, the requests admitted that the plaintiff had undergone catheterizations during 16 subsequent hospitalizations and that plaintiff had no information that the catheter in her body was from the 1965 procedure.
The defendants subsequently moved for summary judgment which was granted by the trial court and upheld by the Superior Court. On appeal, the Supreme Court reversed, holding that the record provided sufficient evidence for a jury to conclude that the catheter was left in the plaintiff’s body during the 1965 procedure.
The Court placed great weight on the reports provided by the plaintiff’s two experts, stating that these expert opinions contained the requisite degree of specificity for the plaintiff to establish a prima facie case of negligence. Specifically, the plaintiff’s experts relied on the length and condition of the fragment in the plaintiff’s body in concluding that it “most likely” was left there during the 1965 hospitalization. The Court stated that the admissions did not challenge these expert conclusions.
The Court did suggest that admissions in “appropriate circumstances” may support the grant of summary judgment. However, the admissions in this case merely confirmed what was contained in the plaintiff’s medical records. The Court opined, “the lower courts erred by using the oranges of the ‘deemed admissions’ to render null the apples of Appellant’s expert witness reports on the issue of the identity of the catheter found in Appellant’s body.”
Based on the record of the case as a whole, and the requirements for summary judgment – namely freedom from doubt on any genuine issue of material fact – the Court reversed and remanded the case for further proceedings.
by Mark Bauman | Apr 15, 2023 | Legal News, Medical Malpractice
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 where the alleged malpractice arose and a rule requiring the filing of a certificate of merit. The certificate of merit rule requires that in any case where malpractice is alleged, a qualified physician must state that there is a reasonable probability that the defendant deviated from the accepted standard of medical care. These two reforms were passed to prevent “forum-shopping” for plaintiff friendly venues and to limit the filing of frivolous lawsuits.
There were 1,602 medical malpractice filings statewide in 2008, down from 1,641 in 2007 according to the Administrative Office of Pennsylvania Courts. Interestingly, in 2002, one year prior to the institution of the certificate of merit requirement, 2,904 medical malpractice suits were commenced. The number of filings in Philadelphia fell from 1,365 in 2002 to 553 in 2008.
by Mark Bauman | Apr 14, 2023 | Legal News, Medical Malpractice
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 court to admit expert testimony regarding loss of future earning capacity in a motor vehicle accident case. The defendant driver appealed, arguing the trial court should have granted a new trial, molded the verdict, or granted remittitur on the basis the court erred in admitting expert testimony regarding loss of future earning capacity since there was no proper foundation for the testimony.
The testimony at issue concerned qualified experts in vocational rehabilitation and economic losses. Appellant contends the economic expert improperly based his opinion on the rehabilitation expert’s opinion. After careful review, the Superior Court concluded there was competent and concise medical testimony that plaintiff’s accident related injuries impacted on his ability to work, and therefore, the economic expert’s testimony on this subject was properly admitted.
It is well established in this Commonwealth that the standard for qualification of an expert witness is a liberal one. The test to be applied when qualifying an expert witness is whether the witness had any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine. It is also well established that a witness may be qualified to render an expert opinion based on training and experience. Formal education on the subject matter of the testimony is not required, nor is it necessary that an expert be a licensed medical practitioner to testify with respect to organic matters. It is not a necessary prerequisite that the expert be possessed of all of the knowledge in a given field, only that he possess more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence, or experience.
Zak v. Prudential Property & Casualty Ins. Co., 713 A.2d 681, 689 (Pa.Super.1998). The court found that the economic expert’s testimony was clearly within his area of expertise and did not require a physician to state the degree to which plaintiff’s capability to work was limited.
by Mark Bauman | Apr 13, 2023 | Legal News, Medical Malpractice
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 plaintiffs/appellants to proceed at trial on a theory of res ipsa loquitur.* In reviewing that refusal, the Pennsylvania Superior Court thoroughly examined and summarized the relevant existing law.
After applying three elements of res ipsa loquitur as discussed in the Restatement (Second) of Torts § 328D(1)** to the particular facts of the case, the Pennsylvania Superior Court denied plaintiffs/appellants’ appeal. In particular, the court found that because the nature of the injury was itself in dispute, the injury could not have occurred without negligence. The court further found that a factual dispute exists where other possible causes exists for the injury, thereby eliminating the possibility that the case is a res ipsa loquitur one.
*The doctrine of res ipsa loquitur is a rule of circumstantial evidence which allows plaintiffs, without direct evidence of the elements of negligence, to present their case to the jury based on an inference of negligence.
**The three elements of res ipsa loquitur as outlined in the Restatement (Second) of Torts §328D are: (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) the other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
by Mark Bauman | Apr 12, 2023 | Legal News, Medical Malpractice
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 consent. On August 22, 2007, the PA Superior Court affirmed the lower court’s decision that Medicaid regulations relate primarily to “a procedure for payment for medical services” and do not impose any additional responsibilities on physicians in obtaining an individuals informed consent than what PA case law requires. In further support of it’s decision, the court expressed it’s concern, reverse inequality would result if the Medicaid regulations were adopted because Medicaid patients would be treated differently than non-Medicaid patients.
