COVID-19-DEATH CASE

September 26th, 2022 by Rieders Travis in Medical Malpractice

Testa v. Broomall, Pa. Civil No. 21-5148-KSM (E.D. Pa. August 18, 2022) (Marston, J.)  COVID-19 death case in a nursing home.  Motion to dismiss denied.  The claim was based upon the fact that although decedent tested positive for COVID-19, she was permitted to travel out of her room to interact with other residents and to get her nails done while she was placed in isolation.  She had a “window visit” with her mother, who noticed she was having difficulties.  She eventually passed away from the infection.  The defense was the Pennsylvania Emergency Management Services Code.  The court looked at the PREP Act.  The defendant argued that PREP immunized  the facility from liability, or in the alternative that the PREP Act preempts the claims.  Although the PREP Act immunizes individuals who use covered countermeasures, it does not shield individuals who failed to use covered countermeasures.  The claims all relate to non-use of covered countermeasures.  Therefore, the PREP Act does not shield Broomall from liability.  To the extent that the nursing home argues the PREP Act completely preempts any state law claims, including negligence claims, the argument fails.  The Third Circuit addressed…

MEDICAL MALPRACTICE-PRIVILEGE

September 26th, 2022 by Rieders Travis in Medical Malpractice

- Lahr v. Young, Pa. Civil No. 2021-C-0010 (C.P. Lehigh June 17, 2022) (Caffrey, J.)  Motion to compel by plaintiff granted by the court.  At issue were patient safety reports regarding plaintiff Hannah Lahr and Medina-Diaz.  The cases involved were medical malpractice.  Plaintiff sought production of patient safety reports regarding the two individuals.  Defendants contend that the reports were privileged under the Mcare Act and the Peer Review Protection Act.  The court conducted an in camera review.  The court defined a patient safety event as something requiring a patient safety report to the patient safety office.  Healthcare workers in training use factual information only when submitting an event report.  Opinions are not permitted.  However, the factual information a healthcare worker puts in an event report is not intended to supplant the patient’s medical records.  Therefore, factual information contained in the event report should also be contained in the patient’s medical records.  The patient safety officer’s role is defined in terms of the investigation.  The three event reports regarding events in this case were duly submitted during the course of an investigation.  The patient safety office and front line staff and…

MEDICAL MALPRACTICE-COVID-19-NURSING HOME

August 25th, 2022 by Rieders Travis in Medical Malpractice

Testa v. Broomall Operating Co., L.P., 2022 U.S. Dist. LEXIS 147856 (E.D. Pa. August 18, 2022) (Marston, J.)  Testa claims that Broomall’s failure adequately to prepare for pandemic and negligence in caring for elderly patients in the early days of the COVID-19 pandemic proximately caused Ms. DeMarco’s death.  Before the court was Broomall’s motion to dismiss.  The motion was denied.  This is the first case I have seen on the subject.  Governor Wolf issued a proclamation trying to give immunity to nursing homes on March 6, 2020.  By April 18, apparently of 2020, Broomall reported 49 positive cases.  The National Guard deployed medics and nurses to Broomall.  Broomall executives asked the National Guard to leave April 22nd, just four days after they arrived.  Ms. DeMarco passed away the same day.  By May 26th, 155 residents of Broomall had contracted COVID-19 and 43 had died from the virus.  Broomall allegedly had inadequate infectious disease protocol.  The Pennsylvania Department of Health inspected Broomall six (6) times and identified 18 deficiencies and fined Broomall $7,036.  On June 1, 2020, the Department of Health conduced an on-site COVID-19 investigation.  Based on observations, the Department…

MEDICAL MALPRACTICE-CORPORATE LIABILITY-SEXUAL MISCONDUCT

July 11th, 2022 by Rieders Travis in Medical Malpractice

Cuneo v. UPMC, Pa. Civil No. 21-0717 (C.P. Lycoming March 3, 2022) (Linhardt, J.)  This case involved sexual misconduct by a UPMC employee who was subsequently fired for his treatment of a patient.  Plaintiff’s certificate of merit filed against corporate defendants is insufficient to support a corporate negligence claim. The court holds plaintiff has not substantially complied with certificate of merit requirements with respect to corporate negligence claims.  Rather, she entirely failed to file a certificate of merit that would be required to support such claims.  Based on the clear language of the certificate of merit, the corporate defendants believe plaintiff was only bringing a vicarious liability claim.  The court will strike from the complaint any claims for corporate negligence but will allow plaintiff to amend the complaint to state with specificity a claim of vicarious liability against the corporate defendants. If plaintiff retains an allegation of vicarious liability, she must plead explicit facts upon which corporate defendant’s awareness of the need to monitor their employee or duty to be aware of that need is based and further how that duty fits into a theory of vicarious liability.  The complaint…

MEDICAL MALPRACTICE-IMMUNITY-PREEMPTION-PUBLIC READINESS AND EMERGENCY PREPAREDNESS ACT

June 28th, 2022 by Rieders Travis in Medical Malpractice

Battista v. Broomall Operating Co. LP, 2022 U.S. Dist. LEXIS 97332 (E.D. Pa. June 1, 2022) (McHugh, J.)  These actions, consolidated by consent for pretrial purposes only, arise out of injuries and fatalities related to the COVID-19 pandemic. Defendants—a nursing home, its employees, and related entities—removed the cases to federal court following a strategy apparently being followed by nursing homes across the country, arguing that all the state law claims are preempted. They further argue that federal jurisdiction exists on two grounds: the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. §247d-6d, and diversity of citizenship. In a series of consolidated cases with nearly identical facts, Hereford v. Broomall Operating Co. LP, No. 213922, 2021 U.S. Dist. LEXIS 235559, 2021 WL 5834384 (E.D. Pa. Dec. 9, 2021), I recently held that there was neither preemption nor federal question jurisdiction pursuant to the Third Circuit's decision in Estate of Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393, 404 (3d Cir. 2021). I further concluded that individual professionals participating in the residents' care were properly joined, thereby defeating diversity of citizenship. 2021 U.S. Dist. LEXIS 235559, [WL] at *3. Later…

MEDICAL MALPRACTICE-MANOR CARE

June 15th, 2022 by Rieders Travis in Medical Malpractice

Stetts v. Manor Care of Williamsport PA, Pa. No. 16-0983 (C.P. Lycoming December 30, 2021) (Linhardt, J.)  Plaintiff commenced this action by filing a Writ of Summons on June 28, 2016, followed by a Complaint on February 16, 2018. Defendants are Manor Care of Williamsport PA (North), LLC d/b/a ManorCare Health Services – Williamsport North (“Facility”), a skilled nursing facility, HCR ManorCare, Inc., and HCR Manor Care Services, LLC (“Corporate Defendants”). Plaintiff alleges that Decedent, Gary E. Stetts (“Mr. Stetts”) was a resident at the Facility from July 30, 2014 through August 25, 2014, and that while there he suffered a “skin tear to the right calf, a fluid-filled blister to the right heel, significant weight loss, poor hygiene, and severe pain” attributable to the negligent, reckless, or intentional actions of Defendants. Plaintiff alleges numerous grounds for liability, including not only claims that individual employees of the Facility were negligent or reckless but also broad claims of corporate liability, including allegations that various policies and procedures of the Corporate Defendants resulted in understaffing and generally unsafe practices at the Facility. Defendants filed Preliminary Objections to the Complaint on March 7,…

MEDICAL MALPRACTICE-NURSING HOME-CAUSATION

May 12th, 2022 by Rieders Travis in Medical Malpractice

Stetts v. Manor Care of Williamsport PA, Pa. No. 16-0983 (C.P. Lycoming March 18, 2022) (Linhardt, J.)  The procedural history of this case is discussed at length in this Court’s December 30, 2021 Opinion and Order addressing Defendants’ Motion to Remand to Compulsory Arbitration and Defendants’ Motion for Partial Summary Judgment. In that Opinion and Order, the Court denied the Motion to Remand and granted in part the Motion for Partial Summary Judgment. Specifically, the Court denied the Motion as to negligence per se claims based on 18 Pa. C.S. § 2713, the breach of fiduciary duty claim, corporate negligence claims premised on a failure to train or supervise staff, and punitive damages claims arising from the August 1, 2014 incident. The Court granted the Motion as to negligence per se claims based on the Older Adults Protective Services Act, the aiding and abetting breach of fiduciary duty claim, all 2 corporate negligence claims not premised on failure to train or supervise, and all punitive damages claims not arising out of the August 1, 2014 incident. On January 11, 2022, Plaintiff filed the instant Motion seeking reconsideration of the grant…

2021 Patient Safety Awareness Week

March 12th, 2021 by Rieders Travis in Medical Malpractice

2021 Patient Safety Awareness Week

Patient Safety Awareness Week 2021 brings focus to the work of health care organizations and personnel to maintain the safety of patients. Working toward zero harm should be the aim of all hospitals, clinics, doctors, nurses, and other healthcare workers, and Patient Safety Week helps everyone focus on this important consideration. Unfortunately, preventable medical errors is one of the leading causes of death in the United States. The Patient Safety Authority in Pennsylvania receives over a quarter million reports of incidents and serious events. As a result of the obstacles to bringing meritorious medical liability claims, many of the preventable medical errors go uncompensated. Through various campaigns and attempts to raise awareness during the week of March 14-20, healthcare organizations hope to spark discussions and actions to improve the safety of the entire healthcare system, leading to better outcomes for patients and everyone involved. Importance of Advocating for Patient Safety According to the World Health Organization, 2.6 million deaths annually are related to adverse events in hospitals and clinics. Avoiding many of these deaths would likely be possible with an increased focus on and awareness of patient safety. Many preventable…

How Does Medical Malpractice Differ from Ordinary Negligence?

September 8th, 2020 by Rieders Travis in Medical Malpractice

Doctors In Surgery

If you are injured because of a medical negligence, you may wonder, how does medical malpractice differ from an ordinary negligence claim? Negligence is a legal theory called a tort, covering a wide range of cases. Medical malpractice is a specific type of negligence case for injuries caused by healthcare professionals, hospitals, or other organizations. If you have been injured while getting medical care, you may feel betrayed by someone you trusted. You are probably frustrated by their lack of accountability for your suffering. It is a familiar story for Clifford A. Rieders. He has spent decades sharpening his skills and representing Pennsylvania families who suffered an injury or loss due to medical malpractice negligence and defective medical devices. Cliff is a past president of the Pennsylvania Trial Lawyers, now Pennsylvania Association for Justice, and he literally wrote the book on medical malpractice in Pennsylvania used by Pennsylvania lawyers and judges. Ordinary negligence cases seek compensation for people injured by the lack of due care, sometimes called reasonable care, on the part of others. These claims are a way to resolve disputes when parties disagree about who is legally responsible…

Bayer to Pay More than $10 Billion in Roundup Settlement

July 29th, 2020 by Rieders Travis in Medical Malpractice

Doctor

Part of the Money Will Be Set Aside to Resolve Future Cancer Claims Bayer announced in June that it will pay more than $10 billion in a Roundup settlement to cancer victims or their estates. The money will settle thousands of lawsuits that allege the well-known Roundup weed killer caused non-Hodgkin’s lymphoma and other cancers. The Roundup herbicide was first sold by Monsanto in 1974. Since then it has been used worldwide to kill weeds and other unwanted plants. Workers on farms and golf courses, gardeners, groundskeepers, property owners and others who used the product regularly may have suffered potentially deadly exposure. Glyphosate is the active ingredient in Roundup that is linked to cancer. Even though Monsanto denied that its product causes cancer in people, the World Health Organization’s cancer research agency concluded in 2015 that glyphosate is probably a human carcinogen. Bayer bought Monsanto in 2018 and inherited the Roundup lawsuits. In its announcement, Bayer noted that its settlement with cancer sufferers does not mean that the company admits liability or wrongdoing. And, unfortunately, Roundup has not been removed from store shelves. Roundup $10 Billion Settlement Does Not Cover…