by Mark Bauman | Jun 16, 2023 | Legal News, Nursing Home Litigation
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 homes. The proposed legislation caps punitive damages at 200 percent of the compensatory damages awarded in actions against personal care homes, assisted living communities, long-term care nursing facilities, home care agencies, and hospices; however, this limit would not apply if there are allegations of intentional misconduct. The purpose of the legislation is to ensure the financial strength of Pennsylvania nursing home facilities by not subjecting them to “jackpot punitive damages awards.” The next step in enacting the proposed legislation into law is approval from the Pennsylvania Senate.
See PA H.B. 1907.
by Mark Bauman | Jun 16, 2023 | Legal News, Medical Malpractice
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 the disease at issue was potentially deadly absent medical intervention and is inherited 50% of the time by the patient’s children. In Polaski v. Whitson,[1] the decedent’s estate brought a medical malpractice suit against the defendant physician, Dr. Whitson, who treated the decedent’s father, Raymond Polaski. In 2008, Mr. Polaski underwent an electrocardiogram (EKG) as part of a physical conducted by Dr. Whitson. Plaintiffs argued that the EKG should have revealed certain results that would have led Dr. Whitson to order additional testing, which would have likely uncovered that Mr. Polaski suffered from hypertrophic cardiomyopathy. Hypertrophic cardiomyopathy is the heredity condition that ultimately caused the death of the decedent, Mr. Polaski’s son. Plaintiffs argued that, had Dr. Whitson ordered additional testing and diagnosed Mr. Polaski with hypertrophic cardiomyopathy, he would have also informed Mr. Polaski of the need to inform his children, including the decedent, regarding the risk of inheriting the genetic condition from Mr. Polaski.
In reaching his decision, Judge Johnson looked to the following factors enumerated in Althaus ex rel. Althaus v. Cohen:[2] (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. The court also compared prior appellate court cases including Matharu v. Muir[3] and Seebold v. Prison Health Services[4], and found that a duty of care is owed to non-patients “as the risk of harm to those third persons increases in severity and foreseeability and the class of third persons falling within the potential orbit of harm becomes increasingly focused, foreseeable and identifiable.” In doing so, the court found that Dr. Whitson owed a duty to advise the decedent, a non-patient who suffered from hypertrophic cardiomyopathy, stating that “the nature of the risk is highly foreseeable in the medical community and it is essential that the information be disseminated by the physician.”
The ruling in Polaski, as well as the appellate court cases, demonstrates the case-by-case nature of the determination regarding third-party beneficiaries and a duty of care owed by a defendant physician. It is unclear whether the appellate courts will impose a definitive rule in this regard, but in the meantime, a duty of care owed by a physician to a non-patient will likely be imposed when the risk of harm is foreseeable and identifiable.
[1] Court of Common Pleas, Lehigh County No. 2011-C-2583 (memorandum opinion, June 30, 2015).
[2] 562 Pa. 547 (2000) (holding that a psychiatrist does not owe a duty of care to non-patient parents of a child patient who the child accused of sexual molestation and later rescinded).
[3] 86 A.3d 250 (Pa. Super. Ct. 2014).
[4] 618 Pa. 632 (2012).
by Mark Bauman | Jun 15, 2023 | Legal News, Nursing Home Litigation
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 through their client’s medical records prior to filing suit.
A 78 year old gentleman was recuperating at a rehabilitation facility in New Jersey. On April 15, 1999, fearing nurses were not suctioning his lungs as they should have, this gentleman passed a note to a friend asking that he be transferred out of this rehab facility. The next day the transfer to another rehab facility was arranged, but this gentleman died the next day.
The administrator of this gentleman’s estate did not file a medical malpractice suit until April 26, 2001, nine days after the two year statute of limitations expired. The administrator followed his attorney’s advice that he should obtain the medical records prior to filing suit. Lawyers for the rehab centers argued that the Complaint should be dismissed because the administrator should have known about a possible claim based on the note two days prior to death. The administrator’s attorney argued that his client needed time to consult the medical records and as such the discovery rule should apply. The administrator’s claims against the initial rehab center where his friend was residing were dismissed. Subsequent argument is necessary to determine the status of claims against the rehab center where the gentleman was transferred.
by Mark Bauman | Jun 15, 2023 | Legal News, Nursing Home Litigation
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 Haven, Inc. and Menno Haven Penn Hall, Inc. (collectively “Menno Haven”) operate continuing care retirement communities offering independent living, assisted living, and skilled nursing care levels. Menno Haven’s skilled nursing care facilities were considered tax exempt since their construction in 1967. It was determined by the Franklin County Board of Assessment and Revision of Taxes (the “Board”) that Menno Haven’s skilled nursing facilities were, in fact, taxable entities. The Board’s October 18, 2004 decision was affirmed by the trial court. Thereafter, Menno Haven appealed to the Commonwealth Court of Pennsylvania (the “Court”) which also affirmed.
The Court agreed that Menno Haven did not qualify for exemption because it was not a “purely public charity” as required by the Pennsylvania Constitution. Specifically, an entity must be a purely public charity in order to qualify for statutory tax exemption. Accordingly, there are two criteria for tax exempt eligibility. First, an entity must show that it is a “purely public charity.” Second, an entity must meet the statutory requirements for exemption set forth in § 5 of Act 55 (10 P.S. § 375). The second criteria will not be considered without satisfaction of the first criteria.
Whether an entity operates as a purely public charity is determined by satisfaction of a five-part test as set forth by the Pennsylvania Supreme Court in Hospital Utilization Project v. Commonwealth, 487 A.2d 1306 (Pa. 1985). According to the five-part “HUP test”, a purely public charity is an entity that:
- advances a charitable purpose;
- donates or renders gratuitously a substantial portion of its services;
- benefits a substantial and indefinite class of persons who are legitimate objects of charity;
- relieves government of some of its burden; and
- operates entirely free from private profit motive.
Id, at 1317. The Court ruled that the trial court correctly determined that the second and third elements of the HUP test were not satisfied by Menno Haven.
The Court reasoned that Menno Haven did not donate or render gratuitously a substantial portion of its services for three reasons. Menno Haven charged a sizable entrance fee to its independent living residents which the Court felt was an effort to collect in advance for future services that might be rendered without compensation to residents at the skilled nursing level. Although Menno Haven was not contractually bound to transfer community residents to its skilled nursing facilities and they did so regardless of ability to pay, the Court felt that such transfers were made out of a sense of obligation rather than one of charity or community service. Finally, the Court determined that a very small portion of Day One Medicaid eligible individuals were admitted from the community at large (between 2000 and 2004 only 15 of 179 skilled nursing residents). These factors were considered within the totality of the circumstances and the fact that Menno Haven lost money caring for residents on Medicaid was outweighed.
According to the Court, Menno Haven did not benefit a substantial and indefinite class of persons who were legitimate objects of charity. The Court found that people generally gained access to the community by meeting certain financial requirements, because the person was Medicare eligible, or by chance the person applied for occupancy at a time when Menno Haven was accepting Day One Medicaid eligible individuals from outside the existing residential community. The Court found that it was not typical for Menno Haven to extend its services gratuitously to the community at large but rather preferred elderly residents who possessed the ability to pay. For these reasons the Court upheld the prior rulings that Menno Haven was not a purely public charity and therefore did not consider statutory compliance with Act 55. Litigation concerning the tax exempt status of Menno Haven’s independent living and assisted living facilities is ongoing.
by Mark Bauman | Jun 15, 2023 | Legal News, Medical Malpractice
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 plaintiff-appellants failed to demonstrate prejudice. The Superior Court further held that the jury may consider communication with defendant physician’s staff in determining existence of informed consent.
Plaintiff-appellants’ claims involved the surgical removal of a benign brain tumor from plaintiff patient. Plaintiff patient and her husband sued defendant physician; defendant medical center; and defendant clinic alleging a lack of informed consent for the procedure. Defendant physician asserted that he provided both aggressive and less aggressive approaches for treating the tumor, but that in his opinion more aggressive surgery was more beneficial in the long-term.
As the matter proceeded to trial, the parties were unable to empanel a jury because too many of the prospective jurors were either employed or insured by some of the medical facility defendants. In a second round of jury selection, the trial court permitted the parties to question the prospective jurors regarding their relationship with the medical facility defendants. Four jurors identified a relationship with the medical facility defendants but stated that they could render a fair and impartial verdict. Specifically, some stated that the medical facility defendants were so large that they would unlikely be affected by a single judgment or that medical malpractice insurance likely covered the claims.
At the conclusion of the trial, the court granted the medical facilities defendants’ Motion for Partial Summary Judgment and dismissed plaintiffs’ claims against them because the only theory on which plaintiffs predicated liability was lack of informed consent, which was the sole duty of defendant physician. The jury subsequently returned a verdict in favor of defendant physician and against plaintiffs. Plaintiff-Appellants appealed asserting that the trial court should have presumed prejudice and stricken the four jurors at issue for cause; erred in its jury instruction regarding informed consent; and improperly admitted the signed informed consent form.
The Superior Court held that plaintiff-appellants provided no evidence to support their claim of prejudice with regard to the prospective jurors and that any relationship was attenuated and largely contradicted by the jurors themselves. The Superior Court declined to follow the plurality decision in Cordes v. Assocs of Internal Med., 87 A.3d. 829 (Pa.Super. 2014), in holding none of the challenged prospective jurors had a close relationship with participants in the litigation on which prejudice must be assumed.
On a separate issue, the Superior Court held that the trial court properly permitted the jury to consider information given by appellee-physician’s staff in determining the informed consent issue. Although the MCARE Act was enacted after the precedents established in Foflygen v. Allegheny Gen. Hosp., 723 A.2d 705 (Pa.Super. 1999) and Bulman v. Myers, 321 Pa.Super. 261 (Pa.Super 1983), the MCARE Act did not preempt the principals set forth therein. Moreover, the Superior Court held the purposes of MCARE are better served by the encouragement of the dissemination of information regarding prospective surgery, which implicitly includes communication with physician staff.
Plaintiff-appellants’ also challenged the trial court’s denial of their motion to preclude reference to the informed consent form plaintiff patient signed. However, the Superior Court affirmed the trial court’s decision to permit reference to the signed informed consent form because Plaintiff-appellants offered no legal justification to preclude the form.
