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DEFAMATION-IMMUNITY-MEDICAL PRACTICE ACT

May 24th, 2017 by Rieders Travis in Miscellaneous

Greenberg v. McGraw, 2017 Pa. Super. LEXIS 324 (May 5, 2017) Bender, P.J.E.  Appellant, Michael R. Greenberg, M.D., MBA, appeals from the trial court’s April 28, 2016 order sustaining Appellee’s, Nadine M. McGraw, preliminary objections in the nature of a demurrer.  Upon careful review, we affirm.  We agree with the trial court that the procedures for reporting a doctor to the medical board constitute a quasi-judicial proceeding.  They share many of the characteristics of an adjudicatory process.  Discretionary decision-making authority (for instance, whether to initiate formal charges or to settle cases by consent agreements) and procedural safeguards (hearings, appeals, etc.) are patently present.  Dr. Greenberg also sued for abuse of process.  Accordingly, for the above-stated reasons, we hold that the absolute privilege applies to statements made to the Board of Medicine for the purpose of initiating judicial or quasi-judicial proceedings against a licensee, even if such statements are allegedly false. As such, we conclude that Dr. Greenberg’s defamation claim against Ms. McGraw is barred at this time. In addition, we also apply the absolute privilege to bar Dr. Greenberg’s intentional infliction of emotional distress claim, given that it occurred in…

MEDICAL MALPRACTICE-INFORMED CONSENT-RISK/COMPLICATION EVIDENCE

May 24th, 2017 by Rieders Travis in Medical Malpractice

Mitchell v. Shikora, 2017 Pa. Super. 134 (May 5, 2017) Musmanno, J.  Lanette Mitchell (“Mitchell”) appeals from the Judgment entered in favor of Evan Shikora, D.O. (“Dr. Shikora”), University of Pittsburgh Physicians d/b/a Womancare Associates, Magee Women’s Hospital of UPMC (“Magee”) (collectively “Defendants”). We reverse and remand for a new trial. On May 16, 2012, Dr. Shikora, an obstetrical and gynecological surgeon, and Karyn Hansen, M.D. (“Dr. Hansen”), performed a hysterectomy on Mitchell at Magee. After Mitchell was administered general anesthesia, Dr. Shikora, using an open laparoscopic technique, made an incision in Mitchell’s abdomen. While opening the sheath of the peritoneum, Dr. Shikora smelled fecal matter and suspected he had severed Mitchell’s bowel. Dr. Shikora abandoned the hysterectomy and consulted a general surgeon, Dr. Anita Courcoulas (“Dr. Courcoulas”). Dr. Courcoulas repaired the bowel, which had been severed nearly in half, by performing a diverting loop ileostomy. Following the surgery, Mitchell was required to wear a colostomy bag for a short time. On February 5, 2016, the jury returned a verdict in favor of Defendants. Mitchell filed a Motion for PostTrial Relief, seeking a new trial excluding the risk/complications evidence. The…

PRODUCTS LIABILITY-TINCHER

May 24th, 2017 by Rieders Travis in Products Liability, Uncategorized

Renninger v. A&R Machine Shop, 2017 Pa. Super. 98 (April 11, 2017) Stabile, J.  On May 25, 2007, Appellant Dennis Renninger was at work in the Clarion, Pennsylvania plant of his employer, Commodore Homes (“Commodore”), a manufacturer of modular homes, when he sustained a serious injury to his foot. While under construction, each modular home moves along an assembly on wheeled casters attached to its underside. Mr. Renninger was injured when a caster ran over his foot. Appellants sued Appellees A&R Machine Shop (“A&R”) and Cass Hudson Company (“Cass Hudson”) as the designers, manufacturers and suppliers of the casters. Appellants alleged causes of action for strict products liability, negligence, breach of implied warranty, and loss of consortium causes of action, claiming the casters should have included toe guards. The case proceeded to a June 22-25, 2015 jury trial on Appellants’ strict products liability/design defect claim.  The jury returned a defense verdict, finding Cass Hudson did not supply a defective product. Appellants filed timely post-trial motions on June 30, 2015. The trial court denied those motions on November 3, 2015. The verdict was reduced to judgment on November 12, 2015, and…

Mobile Phone Carelessness and Negligence Play a Role in Auto Collisions

May 24th, 2017 by Rieders Travis in Car Accidents

Driving while distracted can be life-threatening, especially if the distraction involves a cell phone. According to new data collected by Cambridge Mobile Telematics (CMT) from hundreds of thousands of drivers using its app, more than half of all vehicle crashes included some form of distraction from a mobile phone. In nearly a quarter of the crashes, the driver was using a phone within a minute before the crash occurred, and perhaps even at the moment of the crash. This is not surprising, since composing a typical text message is like closing one's eyes for nearly five seconds, during which time a vehicle going 55 mph covers more than the length of a football field. The data supports the view that smartphones have made the nation’s highways more dangerous. And it also suggests that the laws that have been enacted so far against using phones while driving have not solved the problem. How often have you been sitting in your own car and seen somebody flying around a corner, or driving down the road, while talking on their phone or playing with their phone? It is a fact of life, that…

CONTRACTS-DAMAGES

May 23rd, 2017 by Rieders Travis in Contracts

Gutteridge v. J3 Energy Group, Inc., 2017 Pa. Super. LEXIS 363 (May 17, 2017) Lazarus, J.  Gutteridge and AEP commenced an action against Russial and J3, claiming promissory estoppel, breach of contract, unjust enrichment, breach of implied duty of good faith in tortious interference with contractual rights.  The court issued a verdict in favor of appellee Gutteridge and Applied Energy Partners in the amount of $343,887 on the counts of unjust enrichment and promissory estoppel.  The Superior Court affirmed the verdict. The court’s conclusion that Gutteridge was dealing with Russial individually, and that Gutteridge and Russial were parties to a failed business dealing supported by evidence that the trial court deemed credible.  Therefore there was individual liability.  It was next asserted that the trial court abused its discretion or committed an error of law by finding liability against Russial under the theory of unjust enrichment.  Again the court found no error or abuse of discretion.  Here, the trial court found credible evidence that Russial committed wrongful acts by breaking its promises after performing services and reliance on those promises.  As a result, Russial kept all the revenues and secured exclusive…

PRISONER LAW-RETALIATION

May 23rd, 2017 by Rieders Travis in Miscellaneous

Wisniewski v. Fisher, et al., 2017 U.S. App. LEXIS 8577 (3d Cir. Pa. May 16, 2017) Vanaskie, C.J.  Appellant Thomas Wisniewski, appeals from an order of the United States District Court for the Middle District of Pennsylvania dismissing his amended complaint for failure to state a claim. For the reasons set forth below, we will reverse in part the District Court's order and will remand for further proceedings.  In 2013, Wisniewski filed a civil rights action pursuant to 42 U.S.C. § 1983, naming as defendants officials and employees of the State Correctional Institution at Smithfield ("SCI-Smithfield") in Huntingdon, Pennsylvania, where he is confined. In a sprawling amended complaint, Wisniewski asserted claims of First Amendment retaliation and violations of his Fourth, Eighth, and Fourteenth Amendment rights.  Wisniewski's amended complaint alleged that he worked as an Inmate Legal Reference Aide in the prison's law library. Perceiving staffing shortages and believing that other library policy decisions were harming the ability of inmates to access the courts, he registered complaints with prison officials and filed inmate requests about the issues. He asserted that, in turn, he was subject to additional scrutiny when, in his library…

National Patient Safety Awareness Week

May 22nd, 2017 by Rieders Travis in Medical Malpractice, Negligence

PA Delayed Diagnosis Attorney
Cliff Rieders is a founding member of Pennsylvania’s Patient Safety Authority. In 1999, the Institute of Medicine suggested a Patient Safety Authority. No one reacted to the catastrophe of preventable medical deaths in this country. Yet Cliff Rieders fought, as President of the Pennsylvania Trial Lawyers Association, now the Pennsylvania Association for Justice, to incorporate a Patient Safety Authority within Pennsylvania’s Mcare Act. Pennsylvania thus became the first state in the union to have a Patient Safety Authority. Cliff was one of the first appointees to the Patient Safety Authority, and he has continued as an active and aggressive member. According to the National Patient Safety Foundation (NPSF), research shows that as many as 440,000 patients die each year as a result of medical harm that is preventable, and many others suffer significant harm (www.NPSF.org). The NPSF advocates for addressing patient and health care workforce safety as a serious public health concern. To bring this problem to the public attention, the week of March 12 to 18 has been designated as National Patient Safety Awareness Week, with activities planned to increase patient safety. Hospitals and health care facilities should always…

FEDERAL EMPLOYEES HEALTH BENEFITS ACT OF 1959-SUBROGATION

May 22nd, 2017 by Rieders Travis in Insurance

Coventry Health Care of Missouri, Inc. v. Jodie Nevils, 581 U.S. ___ (April 18, 2017) Ginsburg, J.  In the Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U. S. C. §8901 et seq., Congress authorized the Office of Personnel Management (OPM) to contract with private carriers for federal employees’ health insurance. §8902(a), (d). FEHBA contains a provision expressly preempting state law. §8902(m)(1). That provision reads: “The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.” Contracts OPM negotiates with private carriers provide for reimbursement and subrogation. Reimbursement requires an insured employee who receives payment from another source (e.g., the proceeds yielded by a tort claim) to return healthcare costs earlier paid out by the carrier. Subrogation involves transfer of the right to a third-party payment from the insured employee to the carrier, who can then pursue the claim against the third party. Several States, however, Missouri among them, bar enforcement of contractual…

INSURANCE-EXCLUSIONS-ENVIRONMENTAL

May 22nd, 2017 by Rieders Travis in Insurance

Pa. Manufacturers’ Ass’n Ins. Co. v. Johnson Matthey, 2017 Pa. Commw. LEXIS 115 (April 21, 2017) Colins, S.J.  This case is a petition for review filed by Pennsylvania Manufacturers' Association Insurance Company (Insurer) against Johnson Matthey Inc. (JMI) and the Pennsylvania Department of Environmental Protection (DEP) seeking a declaratory judgment that it has no obligation to defend or indemnify JMI with respect to a lawsuit filed by DEP against JMI seeking recovery of costs for cleanup of environmental contamination. Before this Court is Insurer's motion for summary relief. For the reasons set forth below, we deny Insurer's motion.  The central issue raised by Insurer's motion is what event must take place within the policy period to trigger coverage under Insurer's CGL policies.  The trigger of coverage under an “occurrence” insurance policy is ordinarily the first manifestation of the injury that is alleged to have been caused by the insured.  We therefore conclude that the environmental contamination claims at issue here fall within the J.H. France Refractories Co. exception to the first manifestation rule and that coverage under Insurer's April 1, 1969 to April 1, 1970 and April 1, 1970 to April…

ASBESTOS-INSURANCE

May 22nd, 2017 by Rieders Travis in Insurance

General Refractories Co. v. First State Ins. Co., 2017 U.S. App. LEXIS 6984 (April 21, 2017) Vanaskie, C.J.  Today we must decide which of two companies will bear costs associated with a staggering number of asbestos claims. These companies—a historical manufacturer of asbestos-containing products and its insurer—dispute the rightful allocation of asbestos-related losses under thirty-year-old excess insurance policies. While the policies are dated, the consequences of our interpretation are immediate both to the parties at hand and to those insurers and insureds whose relationships are similarly governed. The chief issue on appeal is whether a policy exclusion that disclaims losses “arising out of asbestos” will prevent a manufacturer from obtaining indemnification for thousands of negotiated settlements with plaintiffs who have suffered adverse health effects from exposure to its asbestos-containing products. The answer hinges on whether the language of the exclusion is ambiguous. After a bench trial, the District Court found that the phrase “arising out of asbestos” contained latent ambiguity because the exclusion could reasonably be read to exclude only losses related to raw asbestos, as opposed to losses related to asbestos-containing products. We disagree. The phrase “arising out of,”…