by Mark Bauman | Mar 27, 2023 | Legal News, Other News
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 during voir dire [1]. The Pennsylvania Supreme Court held that Appellees waived their argument and therefore the Superior Court’s decision was improper.
In Trigg v. Children’s Hospital of Pittsburgh of UPMC, J-85-2019 (PA 2020), J.T., a minor, was afflicted with craniosynostosis, a medical condition resulting during an infant’s growth and development when the skull prematurely closes and exerts increased pressure on the brain. J.T. underwent surgery at Children’s Hospital of Pittsburgh (“Hospital”) to correct the condition. Following surgery, during his recovery at the Hospital, J.T. fell out of bed and suffered damage to the surgically repaired cranial area, necessitating immediate ameliorative surgery. Appellees filed suit against the Hospital alleging that the Hospital was negligent in placing J.T. in an adult size bed due to the large spaces between the vertical and side rails, which Appellees allege enabled J.T.’s fall.
The case was initially brought in the Allegheny County Court of Common Pleas. In Allegheny County, all members of the prospective juror pool are required to fill out a written questionnaire wherein they provide, inter alia, general personal information such as age, occupation, family members, prior involvement in civil/criminal cases, and relationships with individuals employed by the court system, or by insurance or health care professions.
Further, in Allegheny County, although available to rule on objections, neither the calendar control judge, nor the trial judge is ordinarily present during the voir dire process. The voir dire process is normally managed by a court clerk. Under Allegheny County Local Rules, in medical malpractice cases, a group of prospective jurors is summoned to the jury assignment room and a court clerk asks the group of prospective jurors general questions enumerated in the rules regarding whether service constitutes a hardship, whether they have a social, business, or professional contract with the attorneys in the case, and whether they have social, business, professional, or employment relationships with any of the parties in the case. After the clerk describes the nature of the case, i.e. medical malpractice, and furnishes brief background details about the case, the attorneys for the plaintiff and the defendants give their respective voir dire statements indicating what they believe the evidence will show at trial. At the conclusions of the statements, the clerk asks the jurors whether they have any knowledge about the case. The witnesses in the case are then introduced by the attorneys and the clerk again inquires of the jurors whether they have any personal or familial association with those witnesses. Once the group questioning is complete, the clerk questions each of the prospective jurors individually. After the standard questions have been asked of each individual juror, the court clerk asks each individual juror the additional voir dire questions propounded by the parties. Once this process is complete, counsel for either party may ask reasonable follow up question to individual jurors.
In Trigg, 40 perspective jurors were summoned, and voir dire was conducted as described above. Of relevance, when prospective juror 29 was asked whether she had any feelings about medical malpractice cases which would cause her to favor one party over the other, she answered that her sister and brother-in-law were doctors, and her mother-in-law was a nurse. The clerk followed up by asking whether the juror could be fair and impartial, the perspective juror replied, “I would like to think I would be fair and impartial, but I mean, it just depends on the facts and everything presented.” The juror stated she could follow the judge’s instructions in arriving at a verdict and determining damages and that she could decide the case based on the facts and the law. Appellees’ counsel further questioned perspective juror 29 about whether in a close call she would tend to favor the medical profession. The juror responded, “probably yes”, on the basis that she had seen what those in the medical profession go through and how much they care about their patients, and she noted “I know they would never do anything wrong.” Prospective juror 29 was subject to follow-up questioning by the court clerk in which she affirmed that she would be able to listen to the law as presented by the judge and that her family members’ professions would not influence her judgment such that she could not render a fair and impartial verdict.
At the conclusion of voir dire, Appellees’ counsel challenged prospective juror number 29 and two others for cause. The parties went to the chambers of the calendar control judge to discuss the for cause challenges. The judge read the transcript of the questioning of the prospective jurors. After evaluating the transcripts and hearing arguments by the parties, the calendar control judge denied Appellees’ motion to strike the jurors in question for-cause. Appellees then used three of their four allotted preemptory challenges to exclude these jurors. At the end of the trial, the jury returned a verdict in the Hospital’s favor. Appellees filed a post-trial motion alleging, inter alia, that the calendar control judge erred in denying their for-cause challenges. Specifically, Appellees argued that there was no opportunity for the trial court to observe the demeanor or tenor of the challenged venireman’s answers. The motion was denied on the basis that there was no record that Appellees requested the judge view the prospective jurors’ demeanor before ruling on the Motions to Strike For-Cause.
Appellees filed an appeal to the Superior Court raising issues which included that the trial court erred by not excluding the three prospective jurors at issue for bias and prejudice and by not observing the demeanor and tenor of the prospective jurors before denying the motion to strike them. Appellees argued that because the trial court erred in refusing to exclude the jurors, they were forced to use three of their four allotted preemptory challenges, causing them prejudice. The Superior Court reversed the trial court’s opinion. In its reversal, the Superior Court focused its analysis on the trial court’s denial of Appellees’ for-cause challenge to prospective juror number 29, and to the trial court’s lack of personal observation of the jurors’ demeanor during voir dire. The Superior Court pointed to Shinal v. Toms [2], which endorsed a highly deferential standard of review of a trial court’s ruling on a for-cause challenge to a particular juror because there is a great significance attached to the fact that the trial court has the opportunity to personally observe the juror during the voir dire process. The Superior Court noted that judges in Allegheny County never view the demeanor of prospective jurors unless counsel requests the juror appear before the judge to recreate the initial voir dire. The Superior Court rejected the Hospital’s waiver argument. The Hospital pointed to the fact that during arguments before the calendar control judge, Appellees never objected to the trial court’s lack of personal observation of prospective juror number 29’s demeanor during voir dire, and Appellees did not request that the judge individually question the juror.
The Hospital filed a petition for allowance of appeal, which the Pennsylvania Supreme Court granted. The Pennsylvania Supreme Court found the issue of whether the Superior Court improperly considered the arguments regarding juror demeanor when those arguments were waived, to be dispositive. According to the Hospital, the issue for the Superior Court’s consideration was whether the answers provided by the prospective jurors during voir dire provided a specific basis for disqualifying them based on actual prejudice or bias and it should have confined its analysis accordingly. The Hospital argued that the Superior Court erred by considering arguments related to the conduct and demeanor of the prospective jurors, and the lack of the judge’s presence at voir dire, because said arguments were waived for purposes of appellate review, as they were not properly raised at the trial court by Appellees. Appellees responded that they could not have objected to the demeanor of the challenged jurors during voir dire because the trial judge was not present to rule on such objection, and there was no way to record the objection for appellate review. Further, Appellees contended that when they made an argument regarding the alleged bias of prospective juror 29, implicit in that argument was a commentary on her demeanor, and thus, they preserved the issue for appellate review. Appellees also argued that they properly preserved the issue of the trial court’s lack of firsthand assessment of the jurors’ demeanor during voir dire in their post-trial motions.
In its analysis, the Pennsylvania Supreme Court explained that the issue of waiver presents a question of law and therefore, the standard of review was de novo and the scope of review was plenary [3]. Further, issues not raised in lower courts are waived for purposes of appellate review and they cannot be raised for the first time on appeal [4]. Requiring issues to be properly raised first in the trial court ensures that trial judges have the opportunity to consider a potential appellate issue and correct any error at the first available opportunity [5].
In Trigg, the Pennsylvania Supreme Court ruled that Appellees waived their argument that the trial court erred by not observing the demeanor and tenor of prospective juror 29 during voir dire. The trial court record indicated that Appellees made no objection in pre-trial motions to the trial judge’s absence from the jury assignment room during voire dire. Likewise, when Appellees made their challenge for-cause to the seating of prospective juror 29, they did not contemporaneously object to the trial judge’s absence from the room during voire dire. Further, the transcript from the argument before the calendar control judge regarding juror 29 indicates that Appellees’ challenge was predicated on the substance of the answers which she gave during voir dire (i.e., her familial relationship with members of the medical profession indicated her potential bias); the record does not support Appellees’ claim that as part of their challenge for-cause, they implicitly raised issues concerning the inability of the trial judge to assess the demeanor of prospective juror 29 as she gave her answers. The fact that Appellees, in post-trial motions, alleged the trial court erred in not striking this juror for-cause because the trial court did not have the opportunity to observe the demeanor and tenor of her answers does not preserve the issue for review. Pa.R.C.P. 227.1 requires a party to raise an objection at trial, inter alia, by motion, or by a specific on the record objection in order to obtain post-trial relief. Appellees, in making their for-cause challenge to prospective juror 29, failed to raise with the trial judge any issue relating to his lack of observation of the juror’s demeanor nor did Appellees request that the judge personally interview the juror. As a result, the trial judge was deprived of any opportunity to address and resolve the issue before the jury was finally empaneled.
The Supreme Court ruled that the Superior Court erred when it rejected the Hospital’s claim of waiver. The Superior Court did not analyze the waiver claim in accordance with the well-established requirement for issue preservation. Rather the Superior Court essentially addressed the merits of the claim. The Pennsylvania Supreme Court vacated the Superior Court’s order reversing the trial court and remanded the case to the Superior Court to consider further issues raised by Appellees.
[1] Voir dire generally describes the pre-trial process of examining prospective jurors in order to obtain a competent, fair, impartial and unprejudiced jury. 2 West’s Pa. Forms, Civil Procedure § 54:0 at 1.
[2] Shinal v. Toms, 162 A.3d 429 (Pa. 2017).
[3] Stapas v. Giant Eagle, 198 A.3d 1033, 1037 (Pa. 2018).
[4] Pa.R.A.P. 302(a).
[5] In re F.C. III, 2 A.3d 1201, 1211 (Pa. 2010).
by Mark Bauman | Mar 26, 2023 | Legal News, Other News
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 only for treatment of COVID-19. The immunity does not extend to treatment unrelated to the COVID-19 pandemic. The bill broadly defines healthcare providers as any registered or licensed provider such as physicians, physician assistants, advanced practice nurses, registered nurses, licensed practical nurses, and emergency responders. It also extends immunity to any healthcare facility, such as hospitals. The bill states that “a healthcare professional shall not be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by the health care professional in the course of providing medical services in support of the State’s response to the outbreak of coronavirus.” The bill further delineates that “[i]mmunity shall also include any act or omission undertaken in good faith by a health care professional or healthcare facility or a health care system to support efforts of treating COVID-19 patients and prevent the spread of COVID-19 during the public health emergency and state of emergency declared by the Governor.” The bill retroactively dates to March 9, 2020, to provide immunity for any treatment rendered in this effort and extends until the declaration of emergency for the state of New Jersey has been lifted.
by Mark Bauman | Mar 25, 2023 | Legal News, Other News
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. The Superior Court found that by not including Harper Associates on the verdict sheet and preventing the jury from apportioning responsibility between the defendants, the trial court abused its discretion. The Superior Court found that the appellants proved a prima facie case of negligence against Harper Associates and therefore, that Harper Associates was required to appear on the verdict sheet. The Superior Court relied on the Supreme Court opinion in Davis v. Miller, 123 A.2d, 424 (Pa. 1956) (holding that a defendant has a right to have a settling defendant appear on the verdict sheet in order to apportion liability). The Superior Court also relied on their own opinion in Herbert v. Parkview Hosp., 854 a.2d 1285, 1290 (Pa. Super. 2004), appeal denied, 872 A.2d 173 (Pa. 2005) (holding that Davis only requires a settling co-defendant to appear on the verdict sheet upon a showing of a prima facie case of negligence).
The relevant facts are that the appellee was swimming at Ridley Park’s pool, and a tree fell on her while she was leaving causing serious injury. The tree was located on property owned by Harper Associates. The appellee commenced legal action by filing a complaint against multiple defendants, including Ridley Park and Harper Associates. The appellee entered into binding arbitration with Harper Associates prior to trial, and the arbitrator awarded her $350,000. A pro rata joint tortfeasor release was executed, and provided that, “recovery against Ridley Park shall be reduced only to the extent of the pro-rata share of such damages as may be attributable to Harper Associates and related defendants. . .” The trial court found that Ridley Park did not prove a prima facie case of negligence against the appellant because they did not provide expert testimony, and ruled that Harper Associates would not appear on the verdict form. The jury returned a verdict in favor of the appellee for $750,000.
On appeal the appellants argued five issues. Appellants prevailed on the argument that a new trial should be granted due to the trial court’s error of not submitting the question of Harper Associates’ negligence to the jury. The Superior Court determined that Ridley Park was not required to present expert testimony to prove its prima facie case of negligence. Expert testimony is required “when the subject matter of the negligence is outside the skill and knowledge of an ordinary layman.”2 The Superior Court found that Harper Associates had a duty to visually examine the tree, and relying on Barker v. Brown3, determined that no expert testimony was required. Barker v. Brown held, that a possessor of land in or adjacent to a developed area is subject to liability for harm caused to others outside of the land, by a condition on the land, if a reasonable exercise of care would have disclosed the defect and the risk, and would have been reasonably safe by repair or otherwise.
Additionally, the Court found an expert was not required to find a breach of duty. The issue of whether a tree was visually examined does not require specialized training or knowledge. Causation does require expert testimony, and the appellee’s expert provided sufficient testimony to create a question of fact for the jury, and was not a matter of law for the trial court to decide. Lastly, it is undisputed that the fallen tree caused the injuries.
Ultimately, the Court found that the appellants made a prima facie showing that Harper Associates was negligent, and that the trial court abused its discretion by not including them on the verdict sheet. The error clearly prejudiced the appellants, because if the jury determined Harper Associates had some responsibly for the appellee’s injuries the appellants’ damage award would have been reduced in accordance with the pro rata joint tortfeasor release.
[1] Dunlap v. Ridley Park Swim Club, et al., 2014 Pa. Ct. Comm. Pl., WL 10298711, *1 (December 10, 2014), reversed and remanded, No. 3199 (Pa. Super. 2015)(unpublished memorandum).
[2] Young v. Commw. Dep’t of Transp., 744 A.2d 1276, 1278 (Pa. 2000)(citations omitted).
[3] Barker v. Brown, 340 A.2d 566, 569 (Pa. Super. 1975).
by Mark Bauman | Mar 24, 2023 | Legal News, Other News
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 peer-review evaluations.
The suit originated in 2010 when the plaintiff, a general surgeon, had two patients whose cases were reviewed by an independent expert at the request of the Chief of Surgery. The expert found that the plaintiff failed to provide proactive treatment, prompting an internal review and the plaintiff’s privileges were suspended in accordance with the hospital bylaws. Less than a week after his suspension, the plaintiff sought injunctive relief and the Chancery Division ordered the hospital to provide the plaintiff with the hospital’s bylaws, written notice of any adverse action taken against him, medical charts, and a report of the hospital’s findings.
During the review, the plaintiff declined three invitations to participate in person. Instead, he submitted statements in a letter from his attorney. The committee concluded that the plaintiff’s patient care demonstrated poor documentation and delays in management, causing adverse outcomes. As a result, the committee recommended review of an additional 25 previous surgical cases. The Chancery Court action was subsequently dismissed upon motion by the hospital. This spurred the plaintiff to file a motion for reinstatement and a complaint with the Law Division. The hospital moved to dismiss the motion without prejudice as additional reviews were underway. The plaintiff did not oppose the motion and the parties entered a consent agreement.
The hospital hearings were conduced by a panel of physicians with a presiding member from an outside organization. The panel issued a report in 2012 stating that the plaintiff demonstrated poor judgment, lack of attentiveness, and poor postoperative management. Notably, the panel also discovered that the plaintiff authored a note falsely indicating he spoke to a patient’s mother. As a result, the Board of Trustees revoked the plaintiff’s privileges. The decision prompted the plaintiff to move to reinstate his Law Division claim, which was denied. The plaintiff again moved for reinstatement of his claims and filed a Third Amended Complaint, which also named for the first time the Board of Trustees as a defendant. Law Division Judge Kenneth J. Grispin denied the plaintiff’s second motion as it found that plaintiff failed to plead malice as required to rebut the presumption of reasonableness provided by the federal Healthcare Quality Improvement Act of 1986 (“HCQIA”) given the record of extensive investigation.
Plaintiff appealed the decision, contending that the trial court prematurely enforced the defendants’ statutory immunities from monetary damages and arguing that the court should have afforded him the opportunity to conduct depositions and further discovery. While he admitted that some of his patients had not been managed perfectly, plaintiff argued that the revocation of his privileges by the Board of Trustees was unduly harsh. Accordingly, plaintiff requested that the trial court’s order be vacated and that his lawsuit be reinstated for completion of discovery and a decision on the merits. Defendants maintained that the trial court properly enforced the federal and state immunity statutes, which are designed to protect hospitals and participants in internal peer reviews from having monetary liability to sanctioned doctors.
The three-judge appellate panel supported the trial court decision, highlighting the HCQIA as well as NJSA 2A:84A-22.10, a New Jersey statute that similarly shields hospitals from monetary liability to sanctioned doctors, so long as the peer review investigation was conducted in a fair and reasonable manner. Even viewing in the light most favorable to the plaintiff, the appellate panel agreed with Judge Grispin that the hospital was entitled to immunity from damages and that the plaintiff failed to present a sufficient basis to overcome those immunities.
The hospital’s review of the plaintiff’s performance squarely fit within the definitions provided by HCQIA of “professional review activity” and “professional review bodies,” and was thus afforded immunity so long as they acted under the reasonable belief that their actions were in the furtherance of quality healthcare, made a reasonable effort to obtain the facts of the matter, and provided adequate notice of hearing procedures to the physician. Similarly, NJSA 2A:84A-22.10 broadly protects any person involved in a review and applies so long as the action made was “without malice in the reasonable belief after reasonable investigation that such action or recommendation was warranted upon the basis of facts disclosed.”
The appellate court found no plausible indication that defendants failed to comport with the HCQIA or the state statute. Although a physician is entitled to a fair and unbiased tribunal and a right to limited disclosure of certain information, the HCQIA grants deference to hospitals making difficult decisions regarding clinical privileges, which is manifested by the law’s presumption of immunity.
As for plaintiff’s request for additional discovery and a case to be decided on its merits, the appellate court ruled that the challenger’s “right to obtain discovery, particularly depositions, in cases involving immunity statutes is not absolute. Instead, the court may curtail discovery in its discretion if there are no reasonable indicia that a factual basis to surmount the immunities will be uncovered.”
by Mark Bauman | Mar 23, 2023 | Legal News, Other News
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 venue change is proper based on forum non conveniens.
In Bratic v. Rubendall, the plaintiff originally brought suit in Philadelphia County and was met with a motion for change of venue from defendants. Defendants argued venue transfer was warranted because eight of their witnesses were located in Dauphin County. Plaintiff argued the affidavits provided by defendants were lacking in detail and were repetitive. Judge Eakin ultimately agreed with the defendants.
Under the then existing law as outlined in Cheeseman v. Legal Exterminator, a change of venue was only warranted when the plaintiff’s choice of venue was “vexatious and oppressive” – a high burden for defendants to overcome. In the Bratic opinion, Judge Eakin explained that the standard of “vexatious and oppressive” does not require the defendants to provide detailed specifics about how the chosen venue would impact the parties. He further explained that trial courts have the discretion to balance several factors, including distance traveled and court congestion, to make the determination of whether a venue change is warranted.
It is yet to be seen whether this “lowering of the bar” will lead to an increase in forum non conveniens motions. Plaintiffs’ attorneys believe there will be a surge of forum non conveniens motions, while defense attorneys maintain that these motions have routinely been filed in the past, despite the heavy burden of Cheeseman. Since the Bratic decision, it is anticipated that trial judges will have more confidence granting forum non conveniens motions and that their decision after weighing the relevant factors will be affirmed.
While the Bratic decision may impact personal injury and motor vehicle litigation, it will not affect medical malpractice cases. Section 1303.514 of the Medical Care Availability and Reduction of Error Act requires the creation of an Interbranch Commission on Venue, which has resulted in a change in the rules of civil procedure. Pennsylvania Rule of Civil Procedure 1006 now provides that medical professional liability claims must be brought in the county in which the cause of action arose, or any county where there can be venue against one of the providers in cases of multiple healthcare providers as defendants.
