Category: Procedure

Pa. v. Geisinger-Community Med. Ctr., PA No. 20-CV-4775 (C.P. Lackawanna March 4, 2022) (Nealon, J.)  In this malpractice action asserting negligence by various health care providers that caused the minor-plaintiff to develop catastrophic brain injuries and neurological damage during her birth in 2006, plaintiff conducted the discovery deposition of the labor and delivery nurse who is a named defendant.  After that nurse had demonstrated current understanding of reassuring and non-reassuring signs on fetal monitoring strips and defined “tachycardia,” “variable,” “late,” “deep,” and “prolonged” decelerations, and “absent,” “minimum,” “moderate” and “marked” variability, plaintiff’s counsel displayed the fetal monitoring strips to the nurse and attempted to question her regarding any reassuring and non-reassuring findings on those strips.  Following suggestive interjections by her counsel, the nurse, who had worked as a labor and delivery nurse for almost 40 years until her retirement in 2008, stated “I don’t know…that I would be able to interpret it satisfactorily.” When plaintiff’s counsel attempted to explore the nurse’s current ability to review and comprehend the strips, her counsel objected and instructed the nurse not to answer any questions concerning any fetal monitoring strips, thereby precipitating plaintiff’s instant…

Myers v. Mihail, Pa. No. CV-20-1013 (C.P. Lycoming January 20, 2022) (Tira, J.)  This case, which is out of our office, once again strikes new matter where there are no substantive facts and where the defendant can replead.  Involved here was the collateral source rule; claims of omissions or actions by others; defense is under Mcare Act for past expenses; that the defendant is not a warrantor of a cure.

Pa. v. Geisinger-Community Med. Ctr., No. 20-CV-4775 (C.P. Lackawanna March 4, 2022, Nealon J. In this malpractice action asserting negligence by various health care providers that caused the minor-plaintiff to develop catastrophic brain injuries and neurological damage during her birth in 2006, plaintiff conducted the discovery deposition of the labor and delivery nurse who is a named defendant.  After that nurse had demonstrated current understanding of reassuring and non-reassuring signs on fetal monitoring strips and defined “tachycardia,” “variable,” “late,” “deep,” and “prolonged” decelerations, and “absent,” “minimum,” “moderate” and “marked” variability, plaintiffs counsel displayed the fetal monitoring strips to the nurse and attempted to question her regarding any reassuring and non-reassuring findings on those strips.  Following suggestive interjections by her counsel, the nurse, who had worked as a labor and delivery nurse for almost 40 years until her retirement in 2008, stated “I don’t know…that I would be able to interpret it satisfactorily.” When Plaintiff’s counsel attempted to explore the nurse’s current ability to review and comprehend the strips, her counsel objected and instructed the nurse not to answer any questions concerning any fetal monitoring strips, thereby precipitating plaintiffs instant discovery…

PROCEDURE-SERVICE OF PROCESS-REINSTATEMENT Bella v. Penn Presbyterian Med. Ctr., 2022 Pa. Super. LEXIS 83 (February 22, 2022) (Stevens, PJE).  Appellant timely filed this action by filing a complaint on September 23, 2020.  However, appellant did not serve PPMC within 30 days of filing his complaint and did not seek to reinstate the complaint to maintain its validity.  The trial court record and docket reflect that appellant took no action to serve PPMC until he filed an affidavit of service on February 17, 2021, claiming that PPMC had accepted service via email on February 15, 2021, which was months after the statute of limitations had already expired.  We reject appellant’s argument that he made a good faith effort to serve PPMC with the complaint, solely based upon his allegations that he made one attempt to serve PPMC on September 29, 2020.  Appellant indicated that his attempt to complete personal service was unsuccessful as a process server was informed by front desk security in the General Counsel’s office that no one would be working in the office until after 2020.  Appellant failed to explain why he needed to file an affidavit of…

Paige Moody and Khalil Tomlinson v. Lehigh Valley Hospital – Cedar Crest, 2018 Pa. Super. LEXIS 28 (January 18, 2018) Bowes, J.  Wrongful death and survival action sounding in medical malpractice was filed in Philadelphia.  The trial court transferred the case to Lehigh Valley on forum non conveniens grounds.  The Superior Court reversed and remanded for further proceedings consistent with the opinion.  A 17-month-old presented at Lehigh Valley Hospital with a history of vomiting and coughing.  She came under the care of physicians there.  After further doctor and hospital visits to various doctors and Lehigh Valley Hospital, the child was transferred to Children’s Hospital of Philadelphia by helicopter.  The doctors at Children’s Hospital performed a cardiac procedure and administered an overdose of versed, 10 times the proper dose.  The child died at Children’s Hospital eight (8) days later.  The burden to transfer on forum non conveniens grounds is a heavy one.  It must be shown that the chosen forum is either vexatious or oppressive.  Vexatious means that the plaintiff’s choice was intended to harass the defendant, even at some inconvenience to the plaintiff himself.  Oppressiveness requires a detailed factual showing…

Miller v. St. Luke’s Uiv. Health Network, 142 A.3d 884 (Pa. Super. 2016).  “The question before us, therefore, is whether the trial court properly declined to instruct the jury that Dragonetti Act damages are presumed to flow from a defendant’s wrongful use of civil proceedings in favor of instructing, instead, that a plaintiff who proves wrongful use still carries the burden of proving resultant damages…We, therefore, dismiss Appellant’s challenge to the jury charge as meritless.”  In spite of the jury’s finding of a violation of the Dragonetti Act, the jury had the right to find that there were no damages.  The court did not disturb the jury’s determination that there was no probable cause in pursuing the claim of wrongful use of civil proceedings.