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Medical Malpractice

July 23rd, 2019 by Rieders Travis in Medical Malpractice

SETTLEMENT-SEALING-MEDICAL MALPRACTICE

  1. A. v. Glicken, 2020 Pa. Super. LEXIS 690 (August 14, 2020) Olson, J. This case involved the sealing of the record in a medical malpractice settlement and the appeal from the denial to seal the record. The court found that appellate review is appropriate under the collateral order doctrine.  After careful review, we are unable to conclude that the trial court erred or abused its discretion. As a preliminary matter, the trial court correctly concluded that Appellants did not meet their burden of showing good cause for sealing the record in this case. Although Appellants broadly alleged that the challenged order would chill settlement in future malpractice actions, they offered no evidence to substantiate this claim. Moreover, the trial court correctly observed that the chilling effect on settlements is insufficient, standing alone, to overcome the compelling public interest in open records. See Trial Court Opinion, 9/5/19, at 5. Additionally, Appellants did not show that public disclosure of the petition to approve would result in particularly serious embarrassment. In fact, Appellants have not rebutted the trial court’s observation that disclosure of the petition to approve would not harm any litigant’s interest in privacy since many documents already in the public sphere reveal the salient facts in this case. See id. at 6. Lastly, Appellants have not shown that the trial court improperly disregarded the parties’ agreement regarding nondisclosure. Instead, the record and the trial court’s opinion confirm that the court denied Appellants’ motion to seal because good cause to overcome the presumption favoring public access did not exist. Order affirmed.

MEDICAL MALPRACTICE-MENTAL HEALTH PROCEDURES ACT-GROSS NEGLIGENCE

Brink v. Mallik, MD, No. 13 CV 1314 and 13 CV 2875 (E.P. Lackawanna June 30, 2016) Nealon, J.  In this wrongful death and survival action involving the suicide of a behavioral health unit patient at a former local hospital, Marian Community Hospital (“Marian”), as an alleged result of psychiatric, nursing and institutional conduct constituting gross negligence, Marian, its ex-parent company, Maxis Health System (“Maxis”), and Catholic religious community sponsor, Catholic Health East (“CHE”), have filed motions for partial summary judgment seeking to dismiss plaintiff’s claims for corporate negligence and vicarious liability against Maxis and CHE, and further requesting partial summary judgment as to plaintiff’s punitive damages claims against Marian, Maxis and CHE.  The behavioral health services corporation, NHS Human Services, Inc. (“NHS”), has also filed a motion for summary judgment requesting the dismissal of those same claims, and, in addition, asserts that it is entitled to civil immunity under Section 114(a) of the Mental Health Procedures Act (“MHPA”), 50 P.S. § 7114(a).

Plaintiff has presented evidence that Marian’s chief executive officer (CEO) bore responsibility for implementing the behavioral health unit’s policies governing psychiatric care and for ensuring the accountability of its staff, and that the unit was grossly negligent in enforcing those policies and providing a sufficient number of properly trained staff.  The record contains evidence that the CEO was employed by CHE and reported directly to MAXIS and CHE, as a result of which factual issues exist as to whether Maxis and CHE possessed the corporate authority to enforce the unit’s procedures and to employ adequate and competent staff.  Furthermore, NHS was contractually bound to develop the unit’s treatment policies and to educate its staff, and in light of the expert opinion proof that the unit’s suicide precaution policies and ill-trained staff were “grossly negligent,” there are triable issues of fact regarding the corporate liability of NHS, as well as Maxis and CHE.

Plaintiff has also submitted testimonial and expert evidence that the decedent’s attending psychiatrist was “grossly negligent” due to hiss “flagrant” deviations from the standard of care, and that he was employed by NHS when he treated the decedent.  Therefore, NHS is not entitled to immunity under the MHPA or to summary judgment with respect to plaintiff’s vicarious liability claim.  Because plaintiff has produced evidence of gross negligence on the part of a unit employee whose employment application was submitted directly to Maxis rather than Marian, Maxis has not demonstrated that summary judgment should be entered in its favor as to plaintiff’s vicarious liability claim.  However, the record is devoid of any evidence of an agency relationship between CHE and any unit employees, or that Marian was the alter ego of CHE such that CHE’s corporate veil may be pierced to expose it to vicarious liability.

 

Thus, summary judgment will be granted with regard to plaintiff’s vicarious liability claim against CHE.  Additionally, based upon the lack of any evidence that Marian, Maxis, CHE or NHS, or any of their agents, acted willfully, wantonly or recklessly in treating the decedent, summary judgment will be entered in favor of those defendants as to plaintiff’s claims for punitive damages.

BriNk’s experts have stated that the behavioral health unit failed to enforce its policies addressing suicide assessment, precaution and prevention, and neglected to appropriately supervise the care being provided by the psychiatrists and staff in that unit.  Those experts have concluded that the unit’s staff and health care professionals should have appreciated the severity of Brink’s suicidal condition, but failed to do so due to the absence of proper supervision and appropriate enforcement of the unit’s policies.  As a consequence, there is sufficient evidence in the record to charge Marian/Maxis/CHE and NHS with constructive notice for purposes of imposing corporate liability upon them.  Thus, the motions for summary judgment based upon the alleged lack of actual or constructive knowledge of the deficient care or procedures that caused Brink’s death will be denied.

 

Brink has failed to identify any evidence that is sufficient to create a genuine issue of material fact as to whether Marian was the mere “alter ego” of CHE.  The sole evidence cited by Brink in support of an “alter ego” claim is Ms. Vautrinot’s interchangeable use of the names of CHE, Maxis and Marian.  That proof falls far short of the evidence required to establish a legitimate factual issue for recognizing “alter ego” liability on the part of CHE for the gross negligence of Marian’s employees in the behavioral health unit.  As a result, CHE’s motion for partial summary judgment will be granted as to Brink’s’ vicarious liability claim against CHE for the conduct of the behavioral health unit staff.

Dr. Geier has opined that Dr. Mallik’s foregoing actions were “grossly negligent” and “flagrant deviations from and well below the standard of care.”  Viewing the summary judgment record in the light most favorable to Brink as the non-moving party, it contains adequate evidence, including expert opinion, that Dr. Mallik’s treatment of Brink flagrantly and grossly deviated from the governing standard of care, so as to constitute “gross negligence” under the standard formulated AlbrightSee Potts v. Step By Step, Inc., 26 A.3d 1115, 1120 (Pa. Super. 2011) (because “a jury could find Step By Step’s actions constituted gross negligence,…Step By Step was not entitled to judgment as a matter of law and the trial court erred by not allowing the facts of this case to go before a jury.”). Since the “issue of whether a given set of facts satisfies the definition of gross negligence” should be withdrawn from the jury only if it “is entirely free from doubt” that “no reasonable jury could find gross negligence,” Albright, supra., NHS has not demonstrated that summary judgment should be entered in its favor as a matter of law pursuant to Section 114(a) of the MHPA.  Therefore, NHS’s motion for summary judgment on the basis of civil immunity under the MHPA will be denied.

The summary judgment record simply does not contain evidence creating a genuine issue of material fact as to whether Marian, Maxis, CHE or NHS, or any of their actual or ostensible agents, are chargeable with intentional, willful, wanton or reckless conduct.  Accordingly, the motions for summary judgment will be granted with regard to Brink’s claims for punitive damages.

MEDICAL MALPRACTICE-JOINT AND SEVERAL LIABILITY

Catherine Chase v. Adult Day Services and Med Transit LLC, 2020 Pa. Super. Unpub. LEXIS 2462 (August 3, 2020) Lazarus, J.  This case suffered a non-suit because there simply was not evidence or experts.  However, the discussion about the doctrine of alternative liability is worth noting.  This doctrine applies where the conduct of two or more actors is tortious.  The burden remains on plaintiff to prove that each actor’s conduct was tortious.  Only then will the burden shift to the wrongdoers to disprove causation.  The doctrine dictates that tortfeasors who act in concert will be held jointly and severally liable for the plaintiff’s injury unless the tortfeasors are able to prove that they have not caused the harm.  Also, there was insufficient evidence that a nurse had expertise in medical transportation.

MEDICAL MALPRACTICE-MCARE ACT-STATUTES OF LIMITATIONS-TOLLING CAUSE OF DEATH-DEATH CERTIFICATE

Reibenstein v. Barax, 2020 Pa. Super. LEXIS 637 (July 30, 2020) McLaughlin, J. Statute of limitations is 2 years for medical malpractice, but § 1303.513(d) permits equitable tolling for “affirmative misrepresentation or fraudulent concealment of the cause of death.”  Ann Whitman died April 28, 2010.  A case was begun April 2011.  In February 2015, a Dr. Barax testified that he had spoken with Dr. Conaboy and explained to him that the CT scan showed a previously undocumented abdominal aortic aneurysm, but because he could not visualize the aneurysm very well, he could not confirm that it was not bleeding or rupturing.  As a result of the deposition testimony, a separate action was started against Conaboy defendants in March of 2016.  Summary judgment was granted by the lower court.  The Superior Court reversed.  The death certificate did not correctly identify decedent’s cause of death.  Plaintiff argued that Dr. Barax’s concealment of his communications with Dr. Conaboy concerning the aneurysm is directly related to the cause of death and therefore the statute of limitations has been equitably tolled.  It is unclear whether the cause of death as used in subsection 1303.513(d) means the immediate medical cause of death such as is ordinarily listed on the death certificate or includes conduct leading to decedent’s death but is not the immediate medical cause of the death.  The court concluded that both interpretations are reasonable and therefore this section is ambiguous.  For that reason, summary judgment should not have been granted.  The court did not reach whether there was fraudulent concealment or affirmative misrepresentation and the trial court will determine that on remand.

MEDICAL MALPRACTICE-RES IPSA LOQUITUR

Lageman v. Zepp, 2020 Pa. Super. LEXIS 616 (July 20, 2020) Bowes, J.  Defense verdict for Dr. Zepp.  The Superior Court reversed, saying the trial court should have given res ipsa loquitur charge.  This case involved a patient suffering a stroke because a catheter was placed mistakenly in the carotid artery rather than the jugular vein, a complication known as arterial cannulation.  Dr. Zepp passed the ultrasound transducer over the catheter.  It revealed the catheter was located in the carotid artery rather than the jugular vein.  Defendant Zepp abandoned the jugular as a central line site and called in a vascular surgeon for assistance.  The bowel surgery was successful.  However, plaintiff sustained a stroke that paralyzed her left side, which is one of the recognized risks of arterial cannulation.  Defendant Zepp inserted the central line into plaintiff’s carotid artery instead of her jugular vein.  This was obvious on ultrasound.  Dynamic ultrasound permits an anesthesiologist to see the tip of the needle and increase the likelihood that it was in the vein rather than the artery.  It was agreed by the medical experts and defendant Zepp that manometry, measuring pressure of the blood, is the “gold standard” for confirming that the small catheter is located in the vein rather than in the artery.  The experts agreed that it is rare that placement of a central line in the jugular vein results in the cannulation of the carotid artery.  Plaintiff and defendant agreed that the inadvertent arterial cannulation increases the risk of stroke.  Defense did not concede that plaintiff’s stroke was caused by the arterial cannulation. It did not introduce evidence of any other reasonable cause.  The theory of liability was that Zepp was negligent in the manner in which he used short-axis view ultrasound as he could not properly visualize the tip of the needle.  Plaintiff’s expert also disputed whether Dr. Zepp employed manometry, noting that it was not listed in the anesthesia record.  Plaintiff also offered res ipsa loquitur.  The jury was not instructed that it was permitted to infer that the harm suffered by plaintiff was caused by defendant’s negligence.  Verdict was for defendant, finding no negligence.  Before plaintiff can rely upon res ipsa loquitur he must meet all of the elements of § 328D(1) Restatement of Torts adopted by Gilbert v. Korvette’s, Inc., 327 A.2d 94 (Pa. 1974).  The evidence must permit the conclusion that it is more likely than not that injuries were caused by defendant’s negligence.  The court should look at evidence to determine if reasonable minds could reach different conclusions regarding the negligence of defendant.  If so, it is for the jury to determine whether to draw that inference.  In order to proceed on a res ipsa theory in a medical malpractice case:  (1) plaintiff was required to introduce expert medical testimony that the event that occurred, arterial cannulation, ordinarily would not have occurred absent negligence; (2) in addition to rule out other responsible causes for the event in order to meet the requirement of the Restatement; and finally (3) she had to establish that the negligence occurred within the scope of defendant Zepp’s duty to the plaintiff.  The court ruled that plaintiff’s testimony was sufficient to meet the first element, that arterial cannulation occurred does not ordinarily happen in the absence of negligence.  Since defendant Zepp personally placed the central line, other causes were ruled out.  Finally, it was not disputed that negligence was within the scope of defendant Zepp’s duty to the patient.  While plaintiff’s expert conceded that, according to the American Society of Anesthesiologist Practice Guidelines, following those guidelines does not guarantee any outcome, he did not concede that this injury occurred from the absence of negligence.  That testimony was very important.  Res ipsa loquitur obviates the need for direct evidence that a defendant’s conduct was the proximate cause of plaintiff’s injury by allowing a plaintiff to eliminate other responsible causes of the event.  Other cases are distinguished.  Plaintiff here offered the requisite expert medical testimony linking the negligent arterial cannulation to stroke.  he said that arterial cannulation “exponentially” increases the risk of stroke and no other causes for the stroke identified by the neurologist.  Even the trial court conceded that the expert testimony of plaintiff essentially stated that cannulation of the artery cannot occur unless someone is negligent.  The defense expert sized up the question as to whether the proper use of ultrasound and manometry did not disclose to defendant Zepp that the small catheter was in the artery rather than the vein before he threaded the wire, dilated the vessel and inserted the large bore catheter 7” into the artery.  Defendant did not offer any non-negligent explanation for the arterial cannulation, nor evidence that some other cause was equally likely to cause the injury.  Nor is reliance upon res ipsa foreclosed because plaintiff’s expert also offered evidence of specific negligence.  The Supreme Court has said that there can be specific evidence of negligence offered and res ipsa.  Plaintiff’s expert opined that insertion of the catheter 7” into the artery instead of the vein is not something that occurs in the absence of negligence.  The court also said that defendant Dr. Zepp, who was not an expert, was not entitled to conduct a live or videotape demonstration of the proper central line placement for the jury.  He used a mannikin at trial, and the court found that was inappropriate.  Defendants were trying to demonstrate his skill.  It imbued defendant with an aura of expert expounding on the proper way to place a central line when he was not an expert.  This was misleading.

MEDICAL MALPRACTICE-EVIDENCE-TEXTBOOKS

Charlton v. Troy, 2020 Pa. Super. 170 (July 16, 2020) Bowes, J.  This was a $40 million verdict.  The court reversed.  The matter was vacated and remanded for new trial.  Involved was the birth of twins.  The question is whether cervicothoracic injuries were caused by negligence in this C-section case.  The court found that the verdict was not against the weight of the evidence and JNOV was properly denied on that ground.  The court also found that under § 1303.516 of the Mcare Act the finding of ostensible agency was proper. However, the court granted a new trial because plaintiffs were permitted to use the textbook Neurology of the Newborn by Volpe to cross-examination Dr. Troy when they did not establish the text was authoritative and reliable.  The error was compounded when counsel for plaintiffs was allowed to read an excerpt from the text which was clearly hearsay, as substantive evidence.  In addition, the trial court abused its discretion in permitting plaintiffs to place Dr. Volpe’s credentials before the jury and argue the substance of the text in closing.  This is something that never should have been permitted.

MEDICAL MALPRACTICE-CERTIFICATE OF MERIT-BATTERY

Grant v. Ramesh Agarwal, 2020 Pa. Super. Unpub. LEXIS 679 (February 25, 2020) Pellegrini, J. Pro se litigant claimed that he was not required to have a Certificate of Merit because the claiming of battery.  The fundamental question though in this case is medical malpractice.  Plaintiff sought medical treatment for a right orbital floor fracture.  The case raised the question of medical judgment claim.  It was said that the doctor treated by implanting an internal fixation of Gelfoam rather than a titanium plate.  This is a medical malpractice claim and Certificate of Merit was required.

MEDICAL MALPRACTICE-VOIR DIRE-WAIVER

Trigg v. Children’s Hospital of Pittsburgh of UPMC, 2020 Pa. LEXIS 2233 (April 22, 2020) Todd, J. The Superior Court granted a new trial because the trial judge did not personally observe the demeanor of prospective jurors changed for caused during Voir Dire.  The Supreme Court concluded that the argument had been waived and thus the Superior Court erred in even considering it.  There is nowhere in the record where Plaintiffs requested that the judge view the prospective juror’s demeanor before ruling on the motion to strike for cause.  The hospital’s waiver issue is dispositive.  The Supreme Court did not address the other arguments regarding denial of the motion to exclude prospective jurors.  The matter was remanded so the tribunal could consider those remaining issues.  

MEDICAL MALPRACTICE-MENTAL HEALTH PROCEDURES ACT-IMMUNITY-DRUG DETOXIFICATION TREATMENT

Dean v. Bowling Green-Brandywine, 2020 Pa. LEXIS 1070 (S. Ct. February 19, 2020) Dougherty, J. In this discretionary appeal, we consider the scope and application of the qualified immunity provided under Section 114 of the Mental Health Procedures Act (MHPA), 50 P.S. §§7101-7503. We conclude the Superior Court erred in affirming entry of a compulsory nonsuit and hold immunity does not apply under circumstances where: (1) [J-79-2019] – 2 the patient was admitted for and primarily received drug detoxification treatment; and (2) the patient did not receive treatment to facilitate recovery from a mental illness. Consequently, we reverse and remand for further proceedings.

Andrew’s parents, Melissa Dean and Clifton Edward Johnson, as administrators of Andrew’s estate and in their individual capacities (appellants), filed a complaint in the Chester County Court of Common Pleas against appellees Brandywine, Drs. Kahn, Rana, Duncklee, and Plumb, and Jennersville, raising medical malpractice, wrongful death and survival claims. Specifically, appellants alleged Andrew died of a cardiac arrhythmia due to the combination of medications prescribed during treatment at Brandywine, and that his death was the result of medical negligence including the failure to properly examine, diagnose, appreciate, and treat his medical condition.

We therefore hold the Superior Court erred when it affirmed nonsuit in favor of appellees on the basis of Section 114 immunity. In so holding, we are mindful that applying MHPA protection under the present circumstances would expand immunity to all physicians and facilities that treat patients with any history of mental illness, however remote or unrelated to the current treatment. The Superior Court’s more expansive application would essentially immunize all providers that adopt a routine practice of ordering a “psychiatric consult” for every patient, regardless of presentation, and is not supported by our review of the relevant provisions of the MHPA. See 50 P.S. §7104 (defining treatment as diagnosis, evaluation, therapy, or rehabilitation to “facilitate the recovery . . . from mental illness”); see also 1 Pa.C.S. §1921(b) (letter of statute is not to be disregarded under pretext of pursuing its spirit). We are particularly disinclined to apply immunity here given that drug dependency is expressly excluded from relevant definitions of the MHPA-targeted condition of “mental illness.” 55 Pa. Code §5100.2.  Accordingly, we reverse the decision of the Superior Court and remand to the trial court for further proceedings.

MEDICAL MALPRACTICE-DISCOVERY-PEER REVIEW

Leadbitter v. Keystone Anesthesia Consultants, 2020 Pa. Super. LEXIS 116 (February 12, 2020) Dubow, J.  This case says that a doctor’s professional peer review reference and competency evaluation; ongoing professional practice evaluation; and responses to national practitioner databank are all discoverable.  The court relies upon Supreme Court authority in holding that what a peer review organization does is not protected, although a peer review committee is protected.  The court also suggested that the Supreme Court look at this issue.  Further information from the federal HQIA, which protects its confidential information, does not apply since this is a state matter.  The court relied upon Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018), and also relied upon Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1019 (Pa. Super. 2015).  

JURORS-MEDICAL MALPRACTICE LAWSUITS

Smith v. Cordero, 2019 Pa. Super. LEXIS 1141 (November 15, 2019) McLaughlin, J.  This was a verdict in favor of defendant hospital.  It was Allegheny County.  The court erred in denying Smith’s motions to strike two jurors for cause.  The error was not harmless.  The court vacated the judgment and remanded.  The two questions are as follows:

[1.] Do you have any feelings or opinions about whether medical malpractice lawsuits affect the cost, availability and other medical services[?]

[2.] Do you have any feelings or opinions as to whether there should be a minimum or maximum amount of money that can be awarded to an injured party?

Juror #25 believed that juries award too much money in malpractice cases and malpractice cases drive up the cost of services.  She said she would follow jury instructions.  Juror #45 gave the same response but was a little stronger on maximum awards and said she believes in caps.  She has fundamental beliefs that malpractice cases and the amount of awards have no business on the panel.  The court should have stricken these jurors.  Trigg v. Children’s Hospital of Pittsburgh UPMC, 187 A.3d 1013 (Pa. Super. 2018) petition for allowance of appeal granted, 201 A.3d 145 (Pa. 2019) does not require that a judge be present.  However, where the judge is not present to witness voir dire, the standard is that the Superior Court will review the motions to strike for cause de novo. 

Here, the jurors expressed their views that medical malpractice suits have affected the cost and availability of medical services and that there should be a minimum or maximum amount of money that may be awarded to an injured party. The jurors stated that they could follow the court’s instructions and be fair and impartial. However, as the trial judge was not present to hear the juror’s tone of voice and see the juror’s demeanor, we cannot know whether the jurors truly could be fair and impartial. We therefore conclude that the answers expressed the “slightest ground of prejudice” required for dismissal and the court should have granted the motions for cause. See Shinal v. Toms, 640 Pa. 295, 162 A.3d 439 (Pa. 2017).

FEDERAL TORT CLAIMS-MEDICAL MALPRACTICE-EXHAUSTION OF ADMINISTRATIVE REMEDIES-SUBSTITUTION OF PARTIES

Young v. Temple University Hospital, 2019 U.S. Dist. LEXIS 186711 (E.D. Pa. October 28, 2019) Goldberg, J.  In this case, the court first examined the question as to whether the United States should be substituted as a defendant against whom plaintiff may proceed under the Federal Tort Claims Act.  Here, the United States certification shows that the doctor in question was acting within the scope of a federal employee.  Therefore, the federal government should be substituted in.  Plaintiff has not rebutted the certification that the doctor was a federal employee acting within the scope of her federal employment at the time of the events in question.  The court also looked at exhaustion of remedies and did not dismiss the complaint against the United States on that ground.  However, the FTCA statute of limitations may be subject to equitable tolling.  Here, the plaintiff had no reason to know that the person was a federal employee.  Plaintiff was duly diligent in trying to find out who the employer was.  The government has not identified publically available sources of information about who the employer was.  Plaintiff’s counsel actually visited the clinic facilities and reviewed medical records.  At no time did the health center demonstrate that the employee in question was subject to the FTCA.  Hence, affirmative misconduct is not required to find the exercise of due diligence sufficient for equitable tolling to apply.  Plaintiff undertook a diligent investigation prior to filing their action and there was no information a reasonably diligent plaintiff could have discovered that would have indicated that the doctor was acting in her capacity as a federal employee while serving as the attending physician at the private hospital.  Motion to dismiss Temple’s crossclaims against the United States was denied.

MEDICAL MALPRACTICE-CERTIFICATE OF MERIT-DELIBERATE INDIFFERENCE

Talbert v. Correctional Dental Associates, 2019 U.S. Dist. LEXIS 194545 (E.D. Pa. November 8, 2019) Kearney, J.  Court agrees with Judge Jones and Magistrate Carlson and says that for negligence claims against prison medical officials, certificate of merit must be produced.  However, failure to adduce certificate of merit did not require dismissing deliberate indifference constitutional claim.  Keep in mind, these are only two district courts.

MEDICAL MALPRACTICE-STATUTE OF REPOSE-CONSTITUTIONALITY

Yanakos v. UPMC, 2019 Pa. LEXIS 6129 (S. Ct. October 31, 2019) Mundy, J. The court concluded that the 7-year statute of repose is not substantially related to an important government interest.  The court therefore reversed the Superior Court’s order affirming the trial court’s grant of judgment on the pleadings and remands for further proceedings.  Article I, Section 11 states the court shall be open and every person for an injury done shall have a remedy by due course of law. 

Because the MCARE Act curtails the important constitutional right to a remedy, we must apply intermediate scrutiny to determine whether the MCARE statute of repose is substantially related to achieving an important government interest. See Craig v. Boren, 429 U.S. 190, 197 (1976). Statutes which infringe on the right to a remedy—and other important rights—are subject to a heightened level of scrutiny. See James, 477 A.2d at 1306 (applying a heightened standard of review when analyzing a law which restricted the plaintiff’s “important interest in access to the courts”); see also Smith, 516 A.2d at 311 (Noting that the “important interest in access to the courts . . . should be examined pursuant to an intermediate standard of review.”).

Applying intermediate scrutiny, we conclude the governmental interest in controlling the rising costs of medical malpractice insurance premiums and of medical care is important. However, the MCARE Act’s statute of repose as enacted is not substantially related to achieving those goals.

The parties in their current briefing failed to suggest the seven-year repose period has any substantial relationship to the legislative goal of controlling malpractice insurance costs.

The statute of repose as enacted does not offer insurers a definite period after which there will be no liability because it exempts foreign objects cases and minors, so insurers still have to account for those unpredictable “long-tail” cases in calculating malpractice insurance premiums. Therefore, the seven-year statute of repose, with exceptions for foreign objects cases and minors, is not substantially related to controlling the cost of malpractice insurance rates by providing actuarial predictability to insurers. Accordingly, we conclude the MCARE Act’s statute of repose is unconstitutional, reverse the order of the Superior Court, and remand for further proceedings.

Concurrence by Donohue and dissent by Donohue and Wecht.

MEDICAL MALPRACTICE-NURSING HOMES-CORPORATE NEGLIGENCE

Arnold v. Whitestone, No. 2396 Civ. 2016 (Monroe Co. April 9, 2018) Williamson, J., aff’d. No. 1592 EDA 2018 (Pa. Super. August 22, 2019), non-precedential.  This case involved injury which occurred by virtue of a Hoyer Lift that facilitated patient’s transfer.  The health care workers left the room and it was reported that the patient fell asleep and slipped out of the wheelchair, suffering a right hip fracture.  The Court found that the verdict, including punitive damages was appropriate.  The Court repeatedly relied upon the low staffing issues from the various Scampone v. Grane Healthcare cases.  The evidence in this case was similar to the evidence presented in Scampone, mainly of current and former employees at the facility that was continuously understaffed; that the complaints of management fell upon deaf ears; that mistakes were made and resident care suffered because of understaffing.  The Department of Health had also weighed in and made certain conclusions.  The Court found that the evidence concerning problems at the facility were justified and it was not difficult to make a connection that if there had been enough staff available, someone could have helped the patient while the Hoyer Lift was retrieved so that the harm could have been avoided.  It was not error to admit into evidence Department of Health surveys prior to April 22, 2014.  There is no lesser standard of care because a person is not in a nursing home as long.  There were other falls that the Court found that did not relate to the injuries in this case.  Serious questions were also raised concerning examination in close examination of expert witnesses.  The Court did not find any hearsay problem or any error in providing cross examination of plaintiff’s expert with medical records from another incident.  The Court kept out evidence of other falls which it found were not probative.  Discrepancy in medical records is a question for the jury to consider.  Numerous witnesses including defendant’s own experts testified that Department of Health surveys are a frequent occurrence in every nursing home around the state.  The fact that these occurred, was not prejudicial to defendants.  Perhaps most interestingly, the Court found that a new trial is not required because of lack of bifurcation with respect to the punitive damage component. Bifurcation was appropriate in this case.  

MEDICAL MALPRACTICE-STANDARD OF CARE-RISKS AND COMPLICATIONS

Mitchell vs. Shikora, 174 A.3d 573 (Pa. 2015),Pa Supreme Court, decided June 18, 2019.  The court determined that risks and complications of surgery may be admissible at trial therefore reversing the Superior Court.  The trial court had allowed in such evidence and there was a defense verdict.   Patient’s theory was that Dr. Shikora failed to identify patient’s colon before making an incision into her abdomen and that constituted breach of the applicable standard.   The defense was that cutting the bowel was a risk of the laparoscopic hysterectomy.  The court found that risks and complications through expert testimony were admissible.   The defense was that the procedure is “blind.”  The court noted that a new Standard Jury Instruction might be necessary.  Informed consent, if not pled, is not admissible.   However, evidence about the risk of surgical procedures in the form of testimony or list of such risks as they appear on the informed consent sheet may be relevant.  This evidence may potential leave a juror to conclude that an injury was merely the risk or complication of a surgery rather than as a result of negligence.   We are confident that trial judges will serve their gate-keeping function and give thorough instruction and comment to ensure the juror’s role.   Opinion Page 8.   Studies and expert testimony on known risks and complications are admissible.   Such evidence is admissible subject to judicial concerns and relevancy, reliability and disqualifying considerations such as undo prejudice.   The court does not give examples of any of that.

MEDICAL MALPRACTICE-PEER REVIEW PROTECTION ACT-CREDENTALING FILE

Appellant Community Medical Center appeals from an Order granting emergency petition to compel discovery of Defendant doctor’s credentialing file. The hospital took interlocutory appeal claiming that Regine/Ii vs. Boggs, 181 A.3d 293 (Pa. 2018) did not announce a blanket rule depriving all previously-protected credentialing committee materials of peer review protection. The trial court was affirmed in requiring production of the materials pursuant to the emergency motion. The Regine/Ii court indicated that the PRPA does not extend its grant of an evidentiary privilege to materials that are generated and maintained by entities reviewing the professional qualifications or activities of medical staff. In Regine/Ii, the performance file was not generated or maintained by the hospital’s peer review committee. In Krapa, the trial court conducted an in-camera review as did the Superior Court and determined that the files at issue “consist entirely of credentialing materials …. ” In terms of the doctor’s personnel files, the PRPA protections do not extend to the credentialing committee materials because this entity does not qualify as a “review committee.” Estate of Leonard P. Krapa vs. Lyons, 2019 Pa. Super. LEXIS 508.

MEDICAL MALPRACTICE-SUBROGATION-ERISA

Defendant Kevin Goodspeed sought medical assistance from a physician for a foot injury. Defendant was a participant covered by an employee benefit plan. Under the benefit plan, Defendant received $82,088.36 for his medical expenses. After the medical treatment was concluded, Defendant and his wife sued the treating physician for claims premised on medical malpractice. The case against the physician was settled, resulting in Defendant and his wife receiving a net settlement of $304,463.22. The terms of the benefit plan required subrogation of any recovery from the malpractice action, up to the amount paid by the benefit plan for Defendant’s medical costs. Defendant did not repay the benefit plan, but instead deposited the net settlement proceeds into his and his wife’s jointly-held bank account. The couple then made various purchases from the account including a $62,000 van. The Court finds that there are specific funds against which an equitable lien could be attached through traceability, and therefore will deny Defendant’s Motion for Summary Judgment. Here, both the $200,000 certificate of deposit and the $62,000 van are traceable to the settlement fund. Neither of these could be characterized as nontraceable items such as services, food, or travel. The fact that both items first passed through the joint account owned by Defendant and his wife does not confer “nontraceable” status upon these two items. There is no genuine dispute of material fact concerning the existence of funds that are traceable to the settlement proceeds against which an equitable lien can be imposed. The Court finds that there are specific funds against which an equitable lien could be attached through traceability, namely the $200,000 certificate of deposit and the $62,000 van. Accordingly Defendant’s Motion for summary judgment will be denied, and the Plan will be granted partial summary judgment. The case will proceed to discovery on the issue of allocation and on the merits of Plaintiff’s claims. Bd. of Trs. of the Nat’/ Elevator Indus. Health Ben. Plan vs. Goodspeed, 2019 U.S. Dist. LEXIS 73314.

Is Automation in Healthcare a Good Thing for Patients?

Artificial intelligence is becoming more and more common in the healthcare industry. Equipment such as deep learning algorithms that can read CT scans faster than humans to natural language processing (NLP) that can comb through unstructured data in electronic health records (EHRs), can make medical procedures quicker and more accurate. Automating routine tasks that take up a medical professional’s time can allow doctors to focus on the care of patients with serious conditions. Most robotic and laparoscopic surgery, along with new medical devices, have become a major component of health care.   The safety of all of this automation and new technology is by no means guaranteed.

Unfortunately, there are also downsides to the increased use of automation, with concerns about privacy problems, ethics, and medical errors. While for many patients, the human touch can bring healing that a machine can never offer, automation brings less personal contact between patients and medical professionals.

Trusting an AI nurse or physician with diagnoses, treatment decisions, and other direct patient-care tasks may not always be the best solution.  Already, patients complain that clinicians do not spend enough time examining them and fail to pick up on non-verbal cues because they are focused on their keyboards instead of the person in front of them.  Artificial intelligence may be more susceptible than people to making assumptions if the data they are trained on leans to certain perspectives. AIl can easily make mistakes understanding words spoken into a machine. Additionally, there are challenges around data privacy and security that could result in a high-profile data breach.

If mistakes due to use of artificial intelligence cause serious injury or fatalities, patients and their families may be entitled to compensation through a medical malpractice lawsuit. If you or a loved one has suffered harm, you should seek legal representation to determine whether you can be compensated for your loss. However, due to the complexity and issues involving medical malpractice, your case must be handled correctly and competently by an experienced attorney. 

The skilled and seasoned Pennsylvania medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to negligence and malpractice by medical professionals and hospitals. Our attorneys offer personal attention and loyalty to every client, aggressively fighting for their right to compensation.

We offer a free consultation to examine the facts of your case and determine how we can help, so contact us online or call our offices to set up your free consultation.

What Constitutes Medical Malpractice?

According to Pennsylvania law, medical malpractice occurs when a healthcare professional commits medical negligence by violating the generally accepted standard of care used by other medical professionals in the area.  The resulting injury must have been directly caused by the professional’s actions or omission of actions, and the injury must have led to damages.

The law governing manufacturers of products, including software, are governed by different laws generally referred to as products liability. In many of these fields federal regulations are also significant and concepts of preemption may be at issue.

Artificial Intelligence providers need to be absolutely certain that the algorithms they use are presenting all of the relevant information in a way that enables optimal decision-making.  They should be held legally responsible for any negative consequences from data they have in their possession that might have been misused or misinterpreted.

What Compensation Can I Get?

If you win a medical malpractice case, you may receive compensation for the following:

1) Economic or monetary damages, including:

  • Past, present and future medical expenses such as costs for doctors, hospitals, rehabilitation, therapy, and corrective surgeries
  • Time spent away from work, lost wages and loss of future wage horizon
  • Funeral costs, in a death case including cost of administration and other related costs.

2) Non-economic damages — less tangible losses such loss of life’s enjoyment prior to death, emotional distress and trauma, disfigurement, loss of consortium, companionship and pain and suffering.

3) Punitive damages in rare cases where a medical professional acted in ways that are deemed malicious and reckless. Punitive damages are more common in products liability claims.

The Pennsylvania statute of limitations for medical malpractice claims is two years. Sometimes a so-called tolling or discovery rule would apply, but this is a very factually intensive procedure.  Also, the Mcare Act sets forth a statute or repose and there are different rules for minors as well. The law on statute of limitations is quite complex.

Trust Our Firm for Honest Answers

If you or a loved one has suffered harm due to medical malpractice from artificial intelligence or any other reason, you may be entitled to compensation However, medical malpractice law is highly regulated by a complex body of rules, and your case must be handled properly or you may never receive the settlement you are entitled to.

Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced Pennsylvania medical malpractice attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann are thoroughly prepared and committed to achieving a just outcome.  With our competent staff, we offer strength in numbers while providing top-notch personal service.

Attorney Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years.

Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir. Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state.  Rieders is a member of the Million Dollar Advocate Form.

Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws.

Rieders is a nationally Board Certified specialist for Civil Trial and Civil Practice and Procedure, a cum laude graduate of New York University as well as Georgetown University Law Center.  He is the lawyer that other lawyers call for counsel and advice in the medical and hospital malpractice and pharmaceutical/vitamin supplement fields.  He does substantial work in multi-district litigation in connection with pharmaceutical products and medical devices.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

Do not delay. Contact us online or call our offices today to set up your free consultation.

Your Doctor is Tired – It is a Public Health Crisis

Doctors are overworked, over-stressed, tired, and burning out — it is affecting your health. Burned-out medical providers are often less productive and do not focus as well on the needs of their patients. Some reduce their work hours, putting added stress on those who have to cover their shifts and patients, and some leave the medical profession completely. None of this is good for patient care.

According to a recent report from the Harvard Global Health Institute, frequent changes to health care environments and protocol have contributed to the increased rate of burnout to the point where there is a public health crisis that “urgently demands action.” The report cites findings from the Mayo Clinic showing that physicians who experience burnout are more likely to reduce their work hours or leave the profession altogether.

How common is burnout? According to a 2018 survey by the Stanford University School of Medicine, 55 percent of physicians across the U.S. admitted to having symptoms of burnout, while 33 percent admitted to suffering from high levels of fatigue.

If you or a loved one has suffered because of negligent care from a burned-out medical practitioner, you may be entitled to receive financial compensation. However, your case must be handled correctly and competently, or you may never collect the compensation you deserve.

The skilled and experienced Pennsylvania medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to negligence and malpractice by medical professionals and hospitals. Our attorneys offer personal attention and loyalty to every client, aggressively fighting for their right to compensation.

We offer a free consultation to examine the facts of your case and determine how we can help, so contact us online or call our offices for a free consultation.

Symptoms and Results of Burnout

  • Physicians are spending more time on paperwork and poorly designed digital health records and less time benefiting patients. This adds to their frustration and decreased quality time spent with patients.
  • Stress-related mental problems are increasing. Burned-out physicians report feelings of depleted resources, become detached or callous to the problems of their patients, harbor negative attitudes toward others and have diminished feelings of accomplishment. They may abuse medications and show signs of depression, and even commit suicide.
  • Interactions with other healthcare team members suffer. Stress and burnout spreads to associated professionals, including Physicians Assistants, Nurse Practitioners and Registered Nurses.
  • When physicians burn out, the chances of making medical errors increases, lack of respect from patients increases, and the likelihood of malpractice lawsuits increases.

Burnout and Medical Malpractice

Many medical professionals grow so accustomed to working under stressful conditions that they can no longer recognize signs of burnout that may include fatigue, depression, anxiety, difficulties with concentration, and even suicidal thoughts. As a result, these tired and overworked doctors are more likely to be negligent and commit medical errors.

If You are Injured

Medical professionals in Pennsylvania are held to providing a reasonable standard of care. Medical care that significantly violates an understood norm of diagnosis or treatment and causes injury or death to the patient through acting negligently may violate the standard of care.

If you or a loved one was injured or someone has died because of negligence by an overworked or burned-out doctor, you may be entitled to compensation for your losses that may include medical expenses, loss of life’s pleasures, loss of future wage horizon and emotional anguish in a medical malpractice lawsuit.

However, Pennsylvania medical malpractice laws are complex, and if your case is not handled correctly, you may never receive the compensation you are entitled to. It pays to seek the help of an experienced medical malpractice attorney to make sure you receive the compensation you deserve.

Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years. Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir.  Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Rieders is a Nationally Board certified specialist for Civil Trial and Civil Practice and Procedure, a cum laude graduate of New York University as well as Georgetown University Law Center. Rieders is admitted in Pennsylvania, New York State, District of Columbia and numerous federal courts including the Supreme Court of the United States. Rieders is a life member of the American Law Institute which publishes recommended legal principles utilized throughout the United States. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical and hospital malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders does substantial work in multi-district litigation in connection with pharmaceutical products and medical devices.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

MEDICAL MALPRACTICE-TWO SCHOOLS OF THOUGHT

Sensenich v Morcos, 2019 Pa. Super. Court LEXIS 192 (February 27, 2019)Judgement in favor of cardiology associates and hospital. The case is one of more than 100 cases arising from allegedly unnecessary cardiac stenting procedures performed by two doctors during their affiliation with the hospital. The hospital sent letters to patients of the doctors advising them that after performance of quality reviews, the stenting “may not have been medically necessary.” The plaintiff claimed that the arteries were not sufficiently occluded to require stenting. The claim against the hospital said it should have known earlier that the doctors were performing unnecessary stenting procedures. The jury found that the doctor did not fail to obtain informed consent, did not commit battery and was not negligent in his treatment. As a result of those findings, the jury did not reach the claims of corporate negligence and civil conspiracy against the defendants. The two schools of thought defense had nothing to do with whether the hospital had requisite notice of the unnecessary stenting procedures. The trial court erred in instructing the jury to find for defendants if it found two schools of thought. This was not a question of two different methods, rather whether the procedure was medically warranted. The trial court omitted the first two sentences of the third paragraph of the suggested jury charge describing the claim or claims to which the instruction applied, and identifying the remaining theories. The court instructed the jury that the doctrine has no application to the unnecessary stenting claims against the doctor and that it could not consider the doctrine with regard to those claims. The court made a clear and explicit ruling that the only claims upon which a jury reach a verdict were those unnecessary stenting claims. The court believed that the erroneous two schools of thought instruction did not contribute to the verdict. 

Should Pennsylvania Level the Playing Field for Those Hurt by Medical and Hospital Malpractice?

Is the deck stacked against patients trying to win a medical malpractice verdict or settlement in Pennsylvania? Many attorneys who represent those harmed by hospital and medical malpractice have been finding that this is the case.

In the early 2000s, there were accusations by medical providers that too many lawsuits were being filed.  Barriers in the law made in 2002 drastically reduced possibilities of filing and winning a lawsuit, to the point where many patients who were victims of malpractice are unable to obtain compensation.

Among the limiting restrictions placed by the reforms are:

  • Creation of rules restricting where medical malpractice cases could be filed, although no other type of litigation was involved. For example, those who are injured by medical and hospital malpractice can no longer file at the headquarters where the big hospital may do business, but rather must file where the malpractice occurred, even if it is in a remote area.
  • A requirement that lawyers handling medical and hospital malpractice suits sign a “Certificate of Merit” based upon a statement of an expert in the same or similar field as the doctor being sued. This is sometimes impossible since doctors retaliate against doctors who testify for lawyers and restrict information through secretive peer review.
  • Restrictions of punitive damages which are intended to punish doctors and hospitals for outrageous conduct and other barriers making lawsuits expensive, delayed and difficult to prevail in.

If you or a loved one has suffered harm due to negligent or incompetent medical or hospital care and safety, you should seek legal representation to determine whether you can be compensated for your loss. However, due to the complexity and issues involving medical malpractice, your case must be handled correctly and competently by an experienced attorney. 

The skilled and experienced Pennsylvania medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to negligence and incompetent malpractice by medical professionals and institutions.  Our attorneys offer personal attention and loyalty to every client, aggressively fighting for their right to compensation.

We offer a free consultation to examine the facts of your case and determine how we can help, so contact us online or call our offices today.

What constitutes medical malpractice?

According to Pennsylvania law, medical malpractice occurs when a healthcare professional commits medical negligence by violating the generally accepted standard of care used by other medical professionals in the same or similar field. The medical negligence must be a substantial factor resulted in the patient’s injuries.

To prove malpractice, these elements must be present:

  1. There was a violation of the “standard of care” – the degree of prudence and caution required of a medical professional who is under a duty of care.
  2. The injury was a factual cause of the actions or omission of the doctor or hospital.
  3. The injury led to the kind of damages permitted in Pennsylvania.

What problems do the restrictions cause?

Since it is the burden of the victim to prove malpractice by a preponderance of the evidence, placing extra burdens and restrictions on the process makes it more difficult to prevail in a legitimate medical and hospital malpractice suit.

In smaller, more rural counties, the local hospital or health system is often the main employer, with an outsized proportion of the jury pool working for the local system or having a personal connection. In some areas, like Philadelphia, with their high concentrations of hospitals and medical schools and doctors, it may also be difficult to find jurors who lack health care ties.

As a result, the high chances against winning a case discourage lawyers from representing deserving victims, and people refrain from bringing legitimate cases. In addition, Pennsylvania’s venue rule for medical malpractice claims means they are handled differently than other civil lawsuits, which is unfair.

Progressively fewer medical malpractice cases have been filed in Pennsylvania, and fewer victims are winning. The number of medical malpractice lawsuits that resulted in a jury verdict dropped from 326 per year in the three-and-a-half years leading up to the 2002 reforms to 102 in 2017.

Another problem with the jury pool is that jurors have been poisoned by untruthful information.  Jurors have been told that doctors are leaving the state.   This is untrue.   In fact, the ratio of patients to doctors has actually improved in Pennsylvania.   There are more doctors and healthcare providers in Pennsylvania than ever before.

What Can be Done

The following are suggestions to help correct the malpractice imbalance:

A committee of the Pennsylvania Supreme Court is considering getting rid of a very unfair venue rule that requires cases to be brought only in the county where the malpractice occurred even though the institution may be headquartered and have facilities in many other counties.  This rule should be withdrawn.  There is no reason for it and when it was established, it was only considered to be temporary.

Eliminate secretive peer review.   Pennsylvania law permits hospitals to investigate malpractice but to keep the results absolutely secret.  Even though the doctors may not be able to find out about dangerous healthcare practitioners.   This practice should be eliminated and there should be statewide peer review.

Information from the Pennsylvania’s “Patient Safety Authority,” should be given out by hospitals.   Under the law, as it currently stands, Patient Safety Authority data can only be given out by region.   This is a serious restriction.   Hospitals and doctors should receive “report cards” where the public can obtain information on safe hospitals and doctors.

Medical malpractice is one of the leading causes of death in America.   We must empower patients to have information about what doctors and hospitals are safe and those which are not.

Consider the findings of Pennsylvania’s “Patient Safety Authority,” which receives reports on medical mishaps, including “serious events,” unanticipated occurrences during medical treatment that hurt or kill patients. The purpose of reporting them to the Authority is to study and learn from them, but the fact that the number of serious events is higher than the number of malpractice lawsuits shows that the deck is stacked against patients.

Trust Our Firm for Informed Answers

If you or a loved one has suffered harm due to medical or hospital malpractice, you may be entitled to compensation for your losses, including medical and hospital costs, cost of rehabilitation, lost wages, loss of wage horizon, loss of life’s pleasures, disfigurement, and pain and suffering.  However, medical malpractice law is highly regulated by a complex body of rules, and your case must be handled properly or you may never receive the compensation you are entitled to.

Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced Pennsylvania medical malpractice attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann are thoroughly prepared and committed to achieving a just outcome.  With our competent staff, we offer strength in numbers while providing top-notch personal service.

Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association.  Rieders helped to write the Mcare Law which the law that governs medical and hospital malpractice cases in Pennsylvania.   He was President of the Trial Lawyers when the law was passed.   He appointed members to the Negotiating Committee.   Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award.  Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years.  Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir.  Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers.  Rieders is on committees and organizations that write the law in many fields of practice.  Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania.  Cliff Rieders wrote the book on medical malpractice that lawyers use in the state.  Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state.  Cliff Rieders is recognized as an outstanding authority in the medical malpractice field.  Cliff has even testified before the legislature on medical malpractice laws. Rieders is a Nationally Board-certified specialist for Civil Trial and Civil Practice and Procedure, a cum laude graduate of New York University as well as Georgetown University Law Center.  Rieders is admitted in Pennsylvania, New York State, District of Columbia and numerous federal courts including the Supreme Court of the United States.  Rieders is a life member of the American Law Institute which publishes recommended legal principles utilized throughout the United States.  Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical and hospital malpractice and pharmaceutical/vitamin supplement fields.  Cliff Rieders does substantial work in multi-district litigation in connection with pharmaceutical products and medical devices.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

Do not delay. Contact us online or call our offices today to set up your free consultation.

MEDICAL MALPRACTICE-PRELIMINARY OBJECTIONS-SPECIFICITY

Shaheen v. The Williamsport Hospital, No. 18-0188 (C.P. Lycoming January 22, 2019) Linhardt, J.  This matter concerns Eli Shaheen’s (“Plaintiff”) suit against The Williamsport Hospital and UPMC Susquehanna (“Defendants”) on behalf of Val Cooper (“Ms. Cooper”) who allegedly died from third degree burns resulting from Ms. Cooper’s use of a cigarette lighter while connected to supplemental oxygen.1 Plaintiff claims that Defendants, and their agents, were negligent, careless and/or reckless for failing to appropriately supervise and attend to Ms. Cooper when they knew she was addicted to tobacco and suffering from dementia.

In the present case, the focus is on an inanimate object and its travels through the hospital. Allowing Plaintiff to broadly proclaim culpability of the entire hospital enters a plain beyond Sokolsky and its progeny. The Court will not entertain a fishing expedition. Plaintiff is required to amend his complaint to include general identifiers for those actors or agents Plaintiff believes are culpable.

The facts do not allege that consultations were necessary, that Ms. Cooper was improperly diagnosed, or that medical staff were improperly granted privileges. Therefore, Plaintiff is required to amend the Complaint to include factual support or remove those subparagraphs from Plaintiff’s Fourth Amended Complaint.

Plaintiff’s theory of the case presumes recklessness, the facts averred do not support a claim for punitive damages.

MEDICAL MALPRACTICE-MENTAL HEALTH PROCEDURES ACT-IMMUNITY-GROSS NEGLIGENCE

Leight v. Univ. of Pittsburgh Physicians, 2018 Pa. Super. LEXIS 1410 (December 31, 2018) Colville, J.-Order affirmed by the Superior Court dismissing the case. The Leighst do not allege that UPP or Pitt was negligent in its examination or treatment of the patient while he was an involuntary patient or out-patient, or voluntarily in-patient at any facility. The Leights attempt to expand the scope of the MHPA by asserting a treatment decision on a voluntary out-patient basis establish a duty on UPP that Pitt to protect an individual from the patient. Shick, the patient, killed one person and injured several others including plaintiff Kathryn Leight at Western Psychiatric Institute and Clinic. 

True Dialogue Between Patients and Doctors Would Reduce Harmful, Dangerous Medical Errors

Patients seeking medical care can wind up being harmed instead from medical errors made by medical professionals and institutions. A May 2016 Johns Hopkins study indicated that 10 percent of all U.S. deaths are due to medical error, which has become the third leading cause of death, behind only heart disease and cancer.   Studies have shown, for example, that the number of preventable deaths in American hospitals are the equivalent of two 747s crashing every month with a loss of all lives aboard.  Would the public ever accept that?  Ten percent (10%) of hospital admissions wind up with patients getting infections.  Preventable deaths in hospitals and caused by doctors are a leading cause of death in the United States.

This is an unacceptable situation, and one that doctors and hospitals are trying to remedy.  Pennsylvania’s Medical Care Availability and Reduction of Error Act of 2002 tasked the Pennsylvania Patient Safety Authority (PSA) with reducing medical errors by identifying problems and implementing solutions that promote patient safety. PSA data claims that efforts to reduce harm are paying off with a 45 percent decline in “high harm” events from 2005 through 2014.  However, there is much debate about this.  Reporting is a problem.  Cliff Rieders was the architect of Pennsylvania’s Patient Safety Authority, and served on the Board for 15 years.  It is clear that much reporting left a lot to be desired.  Events that should have been characterized as “serious events” were not.  Therefore, it is not known if the so-called decline in “high harm” events is really due to better medicine or simply problematic reporting.  What we do know is the Patient Safety Authority tells us that approximately 330,000 serious events and incidents are reported to the Patient Safety Authority a year and that is with less than optimal reporting.  During that same time, the administrative office of the Pennsylvania Courts indicates that 400 medical malpractice cases were filed.  To reduce medical errors, the medical industry needs to have the carrot and the stick.  Medical liability claims must be easier to file and less expensive to pursue.  The barriers to obtain justice in medical and hospital malpractice must be reduced.

Medical errors happen all too often.  If you or a loved one has suffered harm due to negligent medical errors, you should seek legal representation to determine whether you can be compensated for your loss. However, due to the complexity and issues involving medical malpractice, your case must be handled correctly and competently by an attorney experienced in hospital malpractice. 

The skilled and experienced Pennsylvania hospital medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to negligence and malpractice by medical professionals and hospitals.  Our attorneys offer personal attention and loyalty to every client, aggressively fighting for their right to compensation.  Cliff Rieders was involved in the writing of the Mcare Act, which governs medical malpractice cases in Pennsylvania.  He wrote the book which the lawyers and the courts routinely utilize.  Cliff teaches the course on medical malpractice to lawyers throughout the state.

We offer a free consultation to examine the facts of your case and determine how we can help, so contact us online or call our offices to set up your free consultation.

Common Medical Errors

There are many ways that medical errors can occur. Among the most common are:

  • Making an incorrect diagnosis, failure to diagnose, or inappropriate treatment for the diagnosis
  • Prescribing wrong medication or dosage
  • Not considering a patient’s medical history
  • Surgical errors, doing unnecessary surgery or operating on the wrong body part
  • Laboratory errors or ignoring laboratory results
  • Lack of informed consent
  • Poor communication.

Ways to Reduce Errors

According to a new study published in the BMJ, a simple idea could go a long way toward curbing dangerous medical errors: looping in patients and families about their care. The study showed that when communication with patients and their families was extended, harmful medical errors fell by 38 percent.

A communications program called I-PASS, started at Boston Children’s Hospital, has proven successful in reducing errors. The program focuses on rounds — daily meetings when physicians, doctors-in-training, and sometimes nurses talk about a hospitalized patient’s condition and the plan for care. In addition, patient and family are asked for any questions or concerns, and health care providers provide updates and clearly explain the treatment plan. Patients and families then confirm what they understood about the care plan. With this program, families were more likely to share concerns and nurses were more engaged in rounds.

Another program shown to reduce errors is a new way of monitoring Electronic Health Records (EHRs) to detect safety risks to hospitalized patients in real time.  An organization, Pascal Metrics, developed a system that can detect patient harm from real-time data, which then fires triggers that result in patient safety monitoring. The system still needs work to deal with the many false positives that occur.

An additional study found that patient feedback can help physicians better understand their mistakes and interpersonal and behavioral factors such as doctors’ ignoring patient knowledge or disrespecting patients, which contributed to errors.

Cliff Rieders, as a member of the Patient Safety Authority, argued strongly for the Authority and the healthcare system in general to become more patient oriented.  Patients, Rieders noted, are consumers.  The medical healthcare system will never improve until and unless patients are given information about problems at hospitals and with doctors so that they can make an informed decision.  We must do away with secret peer review and root cause analysis.  Problems with doctors and hospitals, including errors, need to be available to patients and their families.

Trust Our Firm for Answers

If you or a loved one has suffered harm due to a medical error you may be entitled to compensation for your losses, including medical and rehabilitative costs, lost wages, and loss of life’s pleasures.  However, medical malpractice law is highly regulated by a complex body of rules, and your case must be handled properly, or you may never receive the compensation you are entitled to.

Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced Pennsylvania hospital medical malpractice attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann are thoroughly prepared and committed to achieving a just outcome.  With our experienced staff, we offer strength in numbers while providing top-notch personal service.

Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association.  Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award.  Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years.  Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir.  Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers.  Rieders is on committees and organizations that write the law in many fields of practice.  Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania.  Cliff Rieders wrote the book on medical malpractice that lawyers use in the state.  Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state.  Cliff Rieders is recognized as an outstanding authority in the medical malpractice field.  Cliff has even testified before the legislature on medical malpractice laws. Rieders is a Nationally Board-certified specialist for Civil Trial and Civil Practice and Procedure, a cum laude graduate of New York University as well as Georgetown University Law Center.  Rieders is admitted in Pennsylvania, New York State, District of Columbia and numerous federal courts including the Supreme Court of the United States.  Rieders is a life member of the American Law Institute which publishes recommended legal principles utilized throughout the United States.  Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical and hospital malpractice and pharmaceutical/vitamin supplement fields.  Cliff Rieders does substantial work in multi-district litigation in connection with pharmaceutical products and medical devices.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

Do not delay. Contact us online or call our offices today to set up your free consultation.

Find out How Pennsylvania Hospitals Fare in New Survey

Too many patients are injured in hospitals, where safety standards are often below those in other industries. In fact, more than 1,000 Americans die each day from preventable hospital errors, according to The Leapfrog Group, an organization that collects and reports hospital data and gives hospitals a grade of A to F for patient safety.

These ratings make a difference. Hospitals given a B rating by Leapfrog had a 9 percent higher risk of avoidable death than A hospitals; C hospitals had a 35 percent higher risk; and the risk in D and F hospitals was 50 percent higher.

Recently, Leapfrog has come out with new safety grades for hospitals across the country, including Pennsylvania, grading hospitals on how well they prevent accidents and errors. Examining them can help you find the hospital where you are least likely to suffer mishaps such as getting an infection or the wrong medication or dose, being allowed to fall while groggy, having a surgical tool left inside, or receiving substandard discharge instructions – all of which can be a cause of hospital malpractice.

Leapfrog has its drawbacks.  It needs to be understood that Leapfrog gets its data directly from hospitals.  Therefore, Leapfrog information is only as good as what the hospitals give to Leapfrog.  Leapfrog is not a government institution, and there is no requirement that hospitals provide Leapfrog anything.  There is no watchdog over Leapfrog.  There is nothing that can be done if hospitals do not provide correct, accurate and honest information to Leapfrog.

If you or a loved one has suffered harm due to negligent or faulty medical care and safety at a hospital, you should seek legal representation to determine whether you can be compensated for your loss. However, due to the complexity and issues involving medical malpractice, your case must be handled correctly and competently by an attorney experienced in hospital malpractice.

Perhaps a better indication of preventable medical errors comes from Pennsylvania’s Patient Safety Authority, an organization in which Cliff Rieders was instrumental in starting.  Cliff Rieders was President of the Trial Lawyers in Pennsylvania when the Pennsylvania legislature created the Pennsylvania Patient Safety Authority.  Cliff Rieders would not agree to any change in the legal system that made it more difficult to bring medical liability cases because in Pennsylvania there was no Patient Safety Authority.  The Institute of Medicine had recommended patient safety authorities, but none were created until the one in Pennsylvania was enacted.  The first patient safety authority in the nation was created in Pennsylvania due to the work of Cliff Rieders.  Cliff then served as a Senate-appointee on the Patient Safety Authority for over 15 years.

In the most recent reporting period, the Patient Safety Authority received almost one-third of one million reports of serious events and incidents during a 12-month period.  At the same time this is happening the Administrative Office of the Pennsylvania Courts says that 1,400-1,500 cases have been filed.  Therefore, very few people sue for bad medical care in Pennsylvania.

The skilled and experienced Pennsylvania hospital medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to malpractice by medical professionals and hospitals.  Our attorneys offer personal attention and loyalty to every client, aggressively fighting for their right to compensation.

We offer a free consultation to examine the facts of your case and determine how we can help, so contact us online or call our offices to set up your free consultation.

What the Hospital Grades Mean

In giving hospitals a safety grade, Leapfrog looks at medical errors, accidents, injuries and infections at hospitals, examining both hospital safety and quality.  Safety involves lack of harm, avoiding bad events, and making mistakes less likely.  Quality has to do with efficient, effective, purposeful care that gets the job done at the right time, doing things well, and improving the overall care experience.

How Do Pennsylvania Hospitals Rate?

Pennsylvania ranked 14th in the country for hospitals receiving an A, with about 38 percent attaining that mark, slightly better than the national average of 32 percent. Of the Pennsylvania hospitals which submitted enough information, 50 received an A; 27 received a B; 47 received a C; nine received a D; and none received an F.

The following are the grades for Harrisburg region hospitals, some outside the region, and some of Pennsylvania’s best-known hospitals:

Penn State Health Milton S. Hershey Medical Center — A

St. Joseph’s Medical Center — A

UPMC Pinnacle Lancaster – D

UPMC Pinnacle Lititz — A

UPMC Pinnacle West Shore Hospital — A

UPMC Pinnacle Harrisburg Hospital — A

UPMC York Memorial (formerly York Memorial Hospital) — C

UPMC Pinnacle Community Osteopathic — A

UPMC Pinnacle Carlisle — A

UPMC Pinnacle Hanover — A

WellSpan Good Samaritan Hospital — C

WellSpan York Hospital — C

Geisinger Holy Spirit Hospital — C

Chambersburg Hospital — A

WellSpan Gettysburg Hospital — C

WellSpan Ephrata Community Hospital — C

Geisinger Medical Center, main hospital in Danville — A

Geisinger Lewistown Hospital — A

Reading Hospital — A

Penn Medicine Lancaster General Hospital — A

UPMC Presbyterian Shadyside — B

Hospital of the University of Pennsylvania — B

Lehigh Valley Hospital Cedar Crest — A

The Johns Hopkins Hospital — A

The following Pennsylvania hospitals received a D:

Einstein Medical Center Elkins Park — D

Einstein Medical Center Philadelphia — D

Lehigh Valley Hospital Schuylkill Medical Center — D

Somerset Hospital – D

St. Luke’s Gnaden Huetten Campus — D

St Luke’s Palmerton Campus — D

UPMC Hanover — D

UPMC Lancaster – D

Hospitals Are Held to Standards

Hospitals are required to uphold proper standards of care for their patients and must …

  • Use reasonable care in the maintenance of safe and adequate facilities and equipment.
  • Select and retain only competent physicians.
  • Oversee all persons who practice medicine within their walls as to patient care.
  • Formulate, adopt and enforce adequate rules and policies to ensure quality care for their patients.

Again, keep in mind that Leapfrog is an organization that essentially is working for the corporate environment and, in particular, insurance companies.  The Leapfrog information comes from hospitals, and hospitals are not required to provide anything to Leapfrog, let alone honest and accurate information.  Information that comes from Medicare (CMS) in states such as Pennsylvania and New York may be a much better indication of patient safety than anything that comes from Leapfrog.  The problem with patient safety in the United States is that there are no real foolproof reporting systems and there is a lack of benchmarks as to what the standard should be.  For example, in Pennsylvania Act 52 governs infections in hospitals.  Certain benchmarks were established the first year the system came into being, but has anybody heard about whether hospitals are better or worse than those benchmarks first established?  The issue has largely fallen silent in Pennsylvania.

There is still a tremendous amount to be done in the patient safety movement.

Trust Our Firm for Honest Answers

If you or a loved one has suffered harm due to a hospital’s negligent safety practices, you may be entitled to compensation for your losses, including medical and rehabilitative costs, lost wages, and loss of life’s pleasures.  However, medical malpractice law is highly regulated by a complex body of rules, and your case must be handled properly, or you may never receive the compensation you are entitled to.

Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced Pennsylvania hospital medical malpractice attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann are thoroughly prepared and committed to achieving a just outcome.  With our competent staff, we offer strength in experience while providing top-notch personal service.

Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association.  Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award.  Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years.  Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir.  Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers.  Rieders is on committees and organizations that write the law in many fields of practice.  Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania.  Cliff Rieders wrote the book on medical malpractice that lawyers use in the state.  Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state.  Cliff Rieders is recognized as an outstanding authority in the medical malpractice field.  Cliff has even testified before the legislature on medical malpractice laws. Rieders is a Nationally Board-Certified Specialist for Civil Trial and Civil Practice and Procedure, a cum laude graduate of New York University as well as Georgetown University Law Center.  Rieders is admitted in Pennsylvania, New York State, District of Columbia and numerous federal courts including the Supreme Court of the United States.  Rieders is a life member of the American Law Institute which publishes recommended legal principles utilized throughout the United States.  Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical and hospital malpractice and pharmaceutical/vitamin supplement fields.  Cliff Rieders does substantial work in multi-district litigation in connection with pharmaceutical products and medical devices.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

Do not delay. Contact us online or call our offices today to set up your free consultation.

MEDICAL MALPRACTICE-STATUTE OF LIMITATIONS-DISCOVERY RULE-TOLLING

Nicolaou v. Martin, No. 44 MAP 2017 (Pa. S. Ct. October 17, 2018) Baer, J.  This appeal presents the issue of whether Appellants Nancy and Nicholas Nicolaou (collectively referred to as “Plaintiffs”) satisfied the discovery rule so as to toll the running of the statute of limitations on their medical malpractice action filed against Appellee health care providers (collectively referred to as “Defendants”) for failing to diagnose and treat Mrs. Nicolaou’s Lyme disease. The trial court granted summary judgment in favor of Defendants, deeming Plaintiffs’ action time-barred. The Superior [J-13-2018] – 2 Court affirmed, holding that the discovery rule did not toll the statute of limitations because, as a matter of law, Plaintiffs failed to establish that they pursued their action with reasonable diligence. For the reasons set forth herein, we hold that summary judgment was granted improperly because the determination of whether Plaintiffs acted with due diligence under the circumstances presented is one of fact for a jury to decide. Accordingly, we vacate the judgment of the Superior Court, reverse the order granting summary judgment, and remand to the trial court for further proceedings consistent with this opinion.

Central to Plaintiffs’ position is their contention that the determination of whether a person is able to ascertain an injury is a subjective one, dependent upon what an individual in the plaintiff’s particular circumstances would do, i.e., a reasonable person uneducated in complex medical issues who had four Lyme disease tests with negative results; who had been repeatedly and definitively diagnosed with MS and had been convinced by the treating physician that any suspicions of Lyme disease were unfounded; and who had been unable to pay the costs related to a suggested fifth Lyme disease test.

Viewing the summary judgment record in the light most favorable to Plaintiffs as the non-moving party, we respectfully find that the Superior Court erred by concluding, as a matter of law, that Plaintiffs knew or should have known sometime between July and September of 2009 (the dates of the first few visits with Nurse Rhoads) that Mrs. Nicolaou suffered from Lyme disease and that her debilitating health problems could have been caused by Defendants’ failure to diagnose and treat such condition. The Superior Court relied upon the fact that by such time an MRI had indicated that Mrs. Nicolaou had suffered from either Lyme disease or MS, Nurse Rhoads had informed Mrs. Nicolaou of a probable diagnosis of Lyme disease based upon her clinical symptoms, and some of Mrs. Nicolaou’s symptoms had improved upon administration of antibiotics. When viewed in a vacuum, these facts may have alerted a reasonable person that she suffered an injury at the hands of medical professionals who failed to diagnose and treat her Lyme disease. Indeed, these circumstances may or may not persuade a jury to so conclude.

It is simply uncertain whether Plaintiffs knew or should have known that Defendants’ misdiagnosis caused Mrs. Nicolaou’s injuries at the precise moment that Nurse Rhoads suggested the same. At that point in time, Mrs. Nicolaou had been repeatedly and definitively told by several health care professionals, most recently Dr. Gould, that her suspicions of Lyme disease were unfounded and that her inability to walk and function as she previously had done resulted from the devastating effects of MS. Further, Mrs. Nicolaou had undergone, not one, but four separate Lyme disease tests, which had all produced negative results. Finally, there was evidence suggesting that Mrs. Nicolaou’s lack of health insurance precluded her from paying the cost required to take the IGeneX Lyme disease test when Nurse Rhoads initially recommended.

In summary, we conclude that it is within the province of a jury to determine whether an untrained lay person who had been repeatedly and definitively diagnosed with MS by several previous physicians, had four prior negative Lyme disease tests, and lacked health insurance to cover the costs of further diagnostic testing “reasonably should have known” that she suffered from Lyme disease after Nurse Rhoads informed her of a “probable” diagnosis of that disease based on her clinical symptoms, and when some of her symptoms improved after taking antibiotics prescribed for that condition. See Wilson, 964 A.2d at 365-66 (internal citations omitted) (“Pursuant to the application of the discovery rule, the point at which the complaining party should reasonably be aware that he has suffered an injury is a factual issue ‘best determined by the collective judgment, wisdom and experience of jurors’”). Moreover, it is for the jury, and not a court, to determine whether a person in Mrs. Nicolaou’s circumstances acted reasonably in delaying the administration of a fifth Lyme disease test to confirm Nurse Rhoad’s probable diagnosis. We reach this conclusion keeping in mind that the appropriate formulation of discovery rule jurisprudence applies “a reasonable-diligence requirement, as opposed to an all-vigilance one.” Wilson, 964 A.2d at 363. 

Whether Plaintiffs knew or should have reasonably known that Mrs. Nicolaou’s injuries were caused by Defendants’ misdiagnosis is disputed and should be resolved at trial. Thus, Defendants’ motion for summary judgment should have been denied.

Mental Health Procedures Act, Immunity, and Gross Negligence

Dean v. Bowling Green Brandywine, 2018 Pa. Super. LEXIS 762 (July 2, 2018) Panella, J.  The Act applies to voluntary inpatient treatment of mentally ill persons.  The Act does not define the term “mentally ill person.”  Andrew Johnson was 23 when he voluntarily applied for admission to Bowling Green Brandywine Treatment Center.  He was suffering from an addiction to opiates and benzodiazepines.  He died at the hospital.  The question was whether the various people sued received the immunity provided by the gross negligence standard?  Dr. Rana provided psychiatric evaluation.  Because Dr. Rana was engaged in the diagnosis, evaluation, therapy or rehabilitation of mental illness in Johnson, the trial court did not err in concluding that Dr. Rana was covered by the limited immunity provided by the MHPA.  As to Dr. Duncklee and Dr. Plumb, emergency room physicians who treated Johnson after he had been transferred by ambulance, the record is far from clear as to whether they had diagnosed and treated Johnson for mental illness.  The trial court erred in applying limited immunity under the MHPA to Johnson’s claims against Dr. Duncklee.  Dr. Plumb also indicated Johnson’s medical history included bipolar disorder.  Dr. Plumb thought the problem was substance abuse.  Dr. Plumb did not propose a diagnosis of mental illness.  Dr. Plumb did not offer any treatment for mental illness.  Dr. Plumb was not engaged in treating Johnson for or medically treating him in conjunction with treatment for mental illness.  The trial court erred in holding to the contrary.  The court erred in dismissing the claims against Drs. Duncklee and Plumb.  That means a vicarious liability claim against Chester County Emergency Room Associates must also be reinstated.  Dr. Khan and Brandywine treated Johnson both before and after Dr. Rana’s psychiatric consult.  Dr. Khan and Brandywine’s actions after the psychiatric consult are covered by the limited immunity provisions of the MHPA.  We conclude limited immunity properly applies to claims against Dr. Rana, Dr. Khan and Brandywine.  In contrast, limited immunity does not apply against Dr. Duncklee and Dr. Plumb and Southern Chester County Emergency Associates.  Brandywine is entitled to the defense of limited immunity.  The trial court properly granted nonsuit to Dr. Rana, Dr. Khan and Brandywine.  We will reverse the grant of nonsuit as to Dr. Duncklee, Dr. Plumb and the Southern Chester County Emergency Associates, PC.

Injury To a Third Party

Laura L. Maas v. Presbyterian, 2018 Pa. Super. LEXIS 752 (June 29, 2018) Bowes, J.  The facts giving rise to this cause of action are as follows. On May 29, 2008, Terrence Andrews attacked and killed Lisa Maas, a neighbor who lived four doors away in his Oakland apartment building. Mr. Andrews had a long history of mental illness. He had been an inpatient at Mayview State Hospital, where he was diagnosed with, inter alia, paranoid personality disorder and antisocial personality disorder. He had attempted suicide on several occasions and suffered opioid and cocaine dependence. In 2006, he was transitioned to the CTT, and placed in a personal care home. It was at that location that defendant Michelle Barwell, M.D., a psychiatrist who worked with the CTT, first saw him.

Four days later, Pittsburgh Police responded to a call of a possible domestic dispute at Hampshire Hall. The officers observed Mr. Andrews, covered in blood, leaving the fourth floor apartment of eighteen-year-old Lisa Maas, a Pennsylvania Culinary Institute student. Ms. Maas was dead due to multiple stab wounds from scissors. Mr. Andrews told police that he did it, and asked to be taken to jail. He also informed the officers that he told Defendant Barwell to put him in WPIC because he was going to kill someone, and that the medication was not working.

The UPMC Defendants moved for summary judgment, alleging that mental health care professionals only have a duty to warn specifically identified persons, not a nebulous group of individuals. Administratrix countered that the victim’s name was not required where the potential victims, Mr. Andrews’s neighbors, were readily ascertainable. The trial court denied the UPMC Defendants’ motion for summary judgment, concluding that the UPMC Defendants had a duty to warn on the facts presented. The UPMC Defendants obtained the requisite certification and permission to appeal that interlocutory order, and they present one question for our review: Whether the [t]rial [c]ourt’s misapplication of Emerich v. Philadelphia Center for Human Development, Inc., 720 A.2d 1032 (Pa. 1998), improperly imposed on mental health care providers a duty to warn about vague, non-specific, and nonimminent expressions of homicidal ideations made by Mr. Andrews?

The UPMC Defendants cite Emerich v. Philadelphia Center for Human Development, Inc., 720 A.2d 1032 (Pa. 1998), for the proposition that Pennsylvania law only imposes a duty on mental health professionals to warn third parties of the danger posed by a mental health patient in limited circumstances, which they contend are not present here. Specifically, the duty arises where (1) a special relationship exists between the mental health professional and the patient; (2) the patient has communicated to the mental health professional a specific and immediate threat of serious bodily injury; (3) the patient’s threat is against a specifically identified or readily identifiable third party; and (4) the mental health professional determines, or should determine, that the patient presents a serious danger of violence to the third party. Id. at 1043. The dispute herein primarily involves the third prong. The UPMC Defendants contend that since no potential victim was identified by name, they had no duty to warn.

It is undisputed that Mr. Andrews did not verbalize a specific threat against Lisa Maas or any other named individual. However, he communicated to the UPMC Defendants his intent to kill his neighbor and his next-door neighbor. He had a plan. He was going to use scissors to stab his neighbor. Shortly before the tragic events herein, he told the UPMC Defendants that he was carrying scissors on his person for that purpose.

We agree with the trial court that Administratrix made the requisite prima facie showing of a duty under Emerich. The remaining questions as to whether the UPMC Defendants breached that duty, whether their conduct fell below the standard of care, and if so, whether it was a cause in fact of Lisa Maas’s death, are questions of fact for the jury.

Medical Malpractice Copays

Mulberry Square Elder Care and Rehabilitation Center v. Department of Human Services, 2018 Pa. Cmwlth. LEXIS 352 (July 26, 2018) Simpson, J.  Mulberry Square Elder Care and Rehabilitation Center (Nursing Facility) petitions for review from an order of the Secretary of the Department of Human Services (Department).  The Secretary affirmed the Bureau of Hearings and Appeals’ (BHA) order adopting the Administrative Law Judge’s (ALJ) recommendation denying relief and rejecting Nursing Facility’s billing practice.  Specifically, the Department disallowed Nursing Facility’s practice of recouping unpaid copayments from residents eligible for medical assistance by billing the Department for the copays as medical expenses.  The Department also concluded this practice constituted balance-billing prohibited by applicable law.  Nursing Facility argues the Department did not promulgate a regulation explicitly precluding its billing practice.  Discerning no error below, we affirm.

MEDICAL MALPRACTICE-CORPORATE NEGLIGENCE-EXPERT REPORT

Barnhill v. Storm, 2018 Phila. Ct. Com. Pl. LEXIS 35 (June 1, 2018) Massiah-Jackson, J.  Defendant Children’s Hospital of Philadelphia (“CHOP”) filed a motion for partial summary judgment on the issue of corporate negligence.  First, the defendant asserted that the expert report submitted by plaintiff Barnhill was based on speculation and conjecture and was inadmissible.  Further, CHOP asserted that the negligence, if any, claimed by plaintiff was a decision made by co-defnedant Philip B. Storm, MD to surgically resect into Ms. Barnhill’s brain on December 15, 2014, without the use of intraoperative angiography.  Thus, CHOP claimed that the defendant hospital was not directly/corporately negligent for an independent action by the physician.

After careful consideration of the issues presented, it was apparent that material facts were in dispute; that insufficient evidence existed to make out a prima facie case; and, there was sufficient evidence where a jury might find in favor of the non-moving party.  The court was unable to conclude that summary judgment was appropriate as a matter of law.

Estates Forfeiture Medical Malpractice

Estate of Charles L. Small, 2018 Phila. Ct. Com. Pl. LEXIS 36 (June 7, 2018) Overton, J.  Juanita Small filed an appeal of this Court’s February 27, 2018 Decree denying her Petition for Forfeiture of Estate.  Appellant asserted that Appellee forfeited his right or interest in their deceased son’s $90,000 medical malpractice settlement.  This court finds that Charles L. Small was not a dependent child pursuant to 20 Pa. Cons. Stat. Ann. § 2106 and therefore the forfeiture statute is inapplicable to the case at bar.

Charles L. Small died intestate on July 11, 2013 at the age of 37.  Letters of Administration were granted to Juanita Small (“Appellant”), Charles Small’s mother, on November 26, 2013.  A medical malpractice claim was filed in Delaware County and settled in the amount of $90,000.  Appellant petitioned this court for forfeiture of estate pursuant to 20 Pa. C.S. § 2106(b).  Appellant asserted that Laverne Dollard (“Appellee”), Charles Small’s father, forfeited any right to the proceeds of the Estate of Charles L. Small, Deceased.

Appellant asserts this Court abused its discretion and committed reversible error failing to apply the forfeiture statute to make a determination whether the Appellee forfeited his rights under 20 Pa. C.S. § 2106.  This claim is without merit.

Where the decedent is not a “minor or dependent child” at the time of death, the forfeiture provisions of § 2106(b) are inapplicable.  In re Kistner, 858 A.2d 1226, 1229 (2004).  Based on this court’s previous analysis, Mr. Small was not a dependent child.

Therefore this claim is without merit.

MEDICAL MALPRACTICE-DUTY-THIRD PARTY PROTECTION-CRIMINAL CONDUCT

Walters v. UPMC Presbyterian Shadyside, 2018 Pa. LEXIS 2999 (June 19, 2018) Wecht, J.  In these consolidated cases, we granted allowance of appeal to determine whether and to what extent a hospital and a health care staffing agency have a legal duty to prevent a terminated employee from causing harm to patients at another health care facility. Plaintiffs claim that David Kwiatkowski, a radiology technician formerly employed at UPMC Presbyterian Hospital (“UPMC”), who was placed there by staffing agency Maxim Healthcare Services, Inc. (“Maxim”), engaged in the diversion and substitution of intravenous fentanyl. Specifically, Kwiatkowski injected himself with fentanyl from a preloaded syringe, refilled the syringe with saline or another substance, and then replaced the now-contaminated syringe where it could be used by others to inject patients. In doing so years later at a Kansas hospital, Kwiatkowski allegedly communicated hepatitis C to Plaintiffs, who were patients at that hospital. Pursuant to federal regulation, UPMC (but not Maxim) indisputably had a legal obligation to report the diversion of controlled substances to the United States Department of Justice’s Drug Enforcement Administration (“DEA”). UPMC failed to do so. The Superior Court determined that Plaintiffs established that both UPMC and Maxim (collectively, “Defendants”) had a duty to report Kwiatkowski’s misconduct to the DEA and to “law enforcement,” and that Defendants’ failure to do so could provide a basis for negligence claims. See Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104 (Pa. Super. 2016). We affirm the Superior Court’s ruling with respect to UPMC (albeit with a modest caveat), and we reverse the Superior Court’s ruling to the extent it imposed the same duty upon Maxim.

The court analyzed the duties of UPMC and Maxim using the Althaus factors.  The court found that a close call would determine that the hospital duty was clear.  As to Maxim, it leaned the other way and found no duty.  

Focusing strictly upon the relationships at issue, we conclude that Defendants were in respective master-servant relationships with Kwiatkowski when the putative duty to report arose. Such reports might have led to the end of Kwiatkowski’s career working for CSA registrants, because the same regulation that imposes the duty to report also provides that a registrant “shall not employ, as an agent or employee who has access to controlled substances, any person who has been convicted of a felony offense relating to controlled substances.” 21 C.F.R. § 1301.76(a). Inasmuch as a felony prosecution of Kwiatkowski could have followed upon a report to either DEA or another law enforcement agency, as it ultimately did in New Hampshire for the same conduct, this factor clearly supports imposing a duty to report upon both UPMC, and to a lesser extent Maxim, given that it could have done so even absent the legal reporting obligation that applies to UPMC.

For the foregoing reasons, we affirm the Superior Court’s ruling that UPMC had a duty to report Kwiatkowski’s misconduct to appropriate authorities, subject to the limitations set forth above.  However, we reverse the Superior Court’s ruling that Maxim, too, had such a duty.

Justices Baer and Dougherty joined in the opinion.

Saylor filed a concurring and dissenting opinion.

Justice Todd did not participate, and Justices Donohoe and Mundy did not participate.

MEDICAL MALPRACTICE-MCARE ACT-EXPERTS-QUALIFICATION-RADIOLOGIST

Tong-Summerford v. Abington Memorial Hospital and Radiology Group of Abington, P.C., 2018 Pa. Super. LEXIS 648 (June 13, 2018) Stevens, P.J.E.  $5M verdict, wrongful death and survival for an elderly woman who suffered from a feeding tube placement that went into her lung instead of her stomach.  With delay damages, the verdict was over $5 million.  The testimony of the expert was satisfactory because the theory was failure to seek an additional study to achieve a proper diagnosis rather than misreading of the initial x-ray.  Plaintiff’s expert did not testify that there was a breach in the standard of care with respect to interpretation of the study itself.  The doctors do not offer an expert opinion that there was a violation of the standard of care, but rather that there was a need for an additional x-ray to confirm placement of the feeding tube.  The facts are sufficient to sustain the verdict.  Expert testimony was probative by referring to a graph.  Radiologist was qualified to give testimony on causation based upon his 30 years of experience.  He could testify to increased risk of harm.  Even though decedent was unmarried and had no children or dependents, the verdict was appropriate.  “Services” in the context of wrongful death extends to profound emotional and psychological loss suffered upon the death of a parent or child where there is evidence of negligence.  There were photographs of family time together, which were appropriate.  The verdict was not excessive or shocking.  Pain and suffering damages are best left to a jury.  The woman was described as having almost been a drowning victim.  Corporate negligence claim that there should have been some rules and regulations in effect as to what technicians should photograph in support of corporate negligence claim.  Vicarious liability was also appropriate in this situation.  There should have been some standard as to what the technician should have x-rayed in order to confirm placement of the tube.  Liberal qualification of expert witnesses.

Anticoagulation therapy and Corporate Negligence

Gintoff v. Thomas, et al., No. 16 CV 2155 (C.P. Lackawanna May 4, 2018) Nealon, J. In this medical professional liability action alleging negligent prescription and monitoring of anticoagulation therapy that caused a right occipital hemorrhage which warranted an emergency craniotomy and resulted in permanent harm, the defendant-hospital has filed a motion for summary judgment seeking to dismiss plaintiffs’ claims for vicarious liability and corporate negligence on the ground that they are not supported by the requisite expert opinion establishing a triable issue of fact as to a deviation from the applicable standard of care and a causal connection between that deviation and the harm claimed.  The sole liability report produced by plaintiffs contains opinions from a hematology expert only as to the causal negligence of the co-defendant hematologist.  Plaintiffs’ hematology expert does not criticize the care provided by any hospital personnel, and plaintiffs previously stipulated that the co-defendant hematologist was not an actual or ostensible agent for whom the hospital could be found vicariously liable.  Nor does the hematologist’s expert report offer any opinion or evidentiary support for an institutional negligence claim against the hospital. Even when the summary judgment record is examined in a light most favorable to plaintiffs as the non-moving parties, it lacks sufficient expert opinion to establish a prima facie claim for vicarious liability or corporate negligence on the part of the hospital, as a result of which the hospital’s motion for summary judgment will be granted.

Judge’s Personal Involvement In Jury Selection

Trigg v. Children’s Hospital of Pittsburgh of UPMC, 2018 Pa. Super. LEXIS 499 (May 14, 2018), Kunselman, J.

Mendy Trigg (Jillian Trigg’s mother) and Smithfield Trust, Inc. filed this appeal following a jury verdict in favor of Children’s Hospital of Pittsburgh of UPMC. The Triggs claim that Allegheny County Civil Division’s jury selection process deprived them of their right to a fair trial. The Hospital insists that the palpable-error deference standard announced in McHugh v. P&G Paper Prods. Co., 2001 PA Super 130, 776 A.2d 266 (Pa. Super. 2001), requires us to affirm. However, for the reasons that follow, we cannot extend the McHugh deference standard to trial judges who fail to observe voir dire in person. After reviewing the Triggs’ challenge to Prospective Juror 29 de novo, we reverse and remand for a new trial.

The Triggs submitted three questions on appeal, all of which challenge the jury selection process in this case:

1. Did the trial court err in denying the [Triggs’] Motions to Strike for Cause potential jurors who exhibited such bias and prejudice that they could not have been fair and should have been stricken from the panel, which required the [Triggs] to use 3 of [their] 4 [peremptory] strikes to remove these potential jurors causing obvious prejudice to the [Triggs].

2. Did the trial court err specifically when it denied the [Triggs’] request to ask voir dire questions of the venire about (1) the [Hospital] and its relationship in the community, especially in light of [the Hospital’s] opening statement when these issues were placed before the jury without any voir dire examination, (2) unintentional harm, since many jurors do not understand the burden of proof and hold the plaintiff to a higher burden than is required in civil cases; and (3) generally in imposing a restriction on additional voir dire questions that they may not include any facts or law of the case.

3. Did the trial court err:

(1) in failing to observe the demeanor and tenor of prospective jurors or; if observation by the Court wasn’t being offered, in failing to assume that the demeanor and tenor of the prospective jurors exhibited extreme bias;

(2) in instructing and having the county clerk engage in rehabilitation [*3]  following an expression of bias, rather than explore the bias; and

(3) in limiting [the Triggs’] Counsel’s follow-up after an expression of bias by a potential juror.

The Triggs dispute the results of this system because the judge, lacking any firsthand perception of the jurors’ demeanor during the voir dire, ruled that all three of the jurors that the Triggs challenged were unbiased and impartial. The Triggs were then forced to exhaust three of four peremptory strikes to remove the challenged jurors. This left them with only one peremptory strike for the rest of the jury panel, which they used. On appeal, the Triggs attack the trial court’s voir dire process on various grounds. First and foremost, they argue that the judge erred by not striking for cause the three “potential jurors who exhibited such bias and prejudice that they could not have been fair[.]”

Here, however, the trial judge personally observed nothing; therefore, we see no reason to extend the McHugh deference standard in this situation, where only the attorneys and the clerk witnessed the physical and verbal cues that the challenged jurors exhibited. The trial judge acquired none of the wisdom or insight that he could have from noting a jurors’ furtive glance, a tremor of voice, a delayed reply, a change in posture, or myriads of other body language.

We, therefore, review de novo the Triggs’ challenge to Prospective Juror 29. The Triggs challenged this juror for cause on the grounds that she admitted she would favor medical practitioners.  Her sister and brother-in-law were both doctors. When asked if “in a close call” she “would tend to favor the medical profession,” Juror 29 replied, “Probably, yes.”  Her further explanation demonstrated empathy for medical professionals and indicated a bias in favor of the Hospital. She stated:

I see what they go through and I know how much they care about their patients and I know they would never do anything wrong. Obviously I realize there are people out there who aren’t my siblings. So obviously they might not be as fair and clear in judgment.

This answer shows her implicit trust for medical professionals. Juror 29 clearly viewed the patient/doctor relationship through the rose-colored glasses of familial love and admiration, and assumed the medical professionals sued in this case would do no harm. We, therefore, must disagree with the trial court’s conclusion that having a sister and brother-in-law who were physicians was simply a life experience that this juror brought to the case. By her own admission, her predisposition would have influenced her deliberations to some degree. This influence was a justifiable cause to exclude her from serving as juror in this case, where the Triggs have accused a healthcare provider of malpractice. Even “the slightest ground of prejudice is sufficient” to disqualify a potential juror. Shinal, 162 A.3d at 439, (quoting Commonwealth v. Lesher, 17 Serg. & Rawle 155, 1827 WL 2776 at 2 (Pa. 1828)). Our judicial system abhors even the appearance of partiality. “One of the most essential elements of a successful jury trial is an impartial jury.” Id. at 438 (citations omitted).

Having found error, we must next consider whether it was harmless. As noted above, the trial court’s ruling as to Juror 29 forced the Triggs to exhaust all of their peremptory challenges. In this situation, reversible error has occurred. See Commonwealth v. Penn, 2016 PA Super 19, 132 A.3d 498, 505 (Pa. Super. 2017) (citing Commonwealth v. Johnson, 299 Pa. Super. 172, 445 A.2d 509, 514 (Pa. Super. 1982) (holding “[w]here, as here, a defendant is forced to use one of his peremptory challenges to excuse a prospective juror who should have been excused for cause, and then exhausts his [peremptory strikes] before the jury is seated, a new trial will be granted.”)

Accordingly, we reverse the order denying a new trial and vacate the judgment entered upon the verdict. Based on our decision with respect to Juror 29, we need not address the remaining issues raised by the Triggs in this appeal. This matter is remanded for a new jury selection and trial.

Judgment vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

MEDICAL MALPRACTICE-PEER REVIEW PROTECTION ACT-OUTSIDE CONTRACTOR

Reginelli v. Boggs, et al., No. 23 WAP 2016 (Pa. S. Ct. March 27, 2018) Donohue, J.  The Peer Review Protection Act, 63 P.S. §§ 425.1-425.4 (“PRPA”), provides a narrow evidentiary privilege to protect the “proceedings and documents of a review committee” conducting peer review activities by professional health care providers in conformity with its provisions. In this medical malpractice action, Monongahela Valley Hospital (“MVH”) contracted with UPMC Emergency Medicine, Inc. (“ERMI”) to provide staffing and administrative services for its emergency room. Both MVH and ERMI claim that the PRPA’s statutory evidentiary privilege protects from disclosure the performance file of Marcellus Boggs, M.D. (“Dr. Boggs”) that had been prepared and maintained by Brenda Walther, M.D. (“Dr. Walther”), who served as the director of MVH’s emergency department and was Dr. Boggs’ supervisor.1 Dr. Boggs and Dr. Walther were employees of ERMI. Under the facts presented in this case and the applicable statutory language of the PRPA, neither ERMI nor MVH may claim the evidentiary privilege. ERMI is not a “professional health care provider” under the PRPA, and the performance file at issue here was not generated or maintained by MVH’s peer review committee. We therefore affirm the decision of the Superior Court upholding the trial court’s ruling that PRPA’s evidentiary privilege has no application in this case. In January 2011, Eleanor Reginelli was transported by ambulance to MVH’s emergency department with what she reported at the time to be gastric discomfort. She was treated by Dr. Boggs. Mrs. Reginelli and her husband, Orlando Reginelli, allege that Dr. Boggs failed to diagnose an emergent, underlying heart problem and discharged her without proper treatment. Several days later, Mrs. Reginelli suffered a heart attack.

In the present case, ERMI does not qualify as a professional health care provider under the PRPA because it is not approved, licensed or otherwise regulated to practice or operate in the healthcare field in Pennsylvania, and it did not become one because one of its employees (Dr. Walther) conducted an evaluation of another of its employees (Dr. Boggs). Accordingly, we affirm the Superior Court’s determination that ERMI was “not an entity enumerated in the [PRPA] as being protected by peer review privilege.”

The PRPA’s evidentiary privilege is reserved only for the “proceedings and documents of a review committee[.] 63 P.S. § 425.4 (emphasis added). MVH does not contend that Dr. Walther was a member of the hospital’s peer review committee, and the certified record contains no evidence to support such a finding. Instead, MVH argues that Dr. Walther acted, ostensibly, as a “separate” peer review committee for the ERMI-supplied emergency department physicians.

Although “individuals reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto,” 63 P.S. § 425.2, are defined as a type of “review organization,” such individuals are not “review committees” entitled to claim the PRPA’s evidentiary privilege in its section 425.4. For these reasons, while it is possible that Dr. Walther, as an individual, may qualify as a “review organization” under the second sentence of the PRPA’s definition of that term, the PRPA does not extend its grant of the evidentiary privilege to that category of “review organization”’ (i.e., credentials review). Individuals conducting peer review are not defined as a “review committee” under the PRPA, even if they qualify as another type of “review organization.” As a result, we must conclude that Dr. Walther, as an individual, was not a “review committee” engaging in peer review, and thus MVH is not entitled to claim the PRPA’s evidentiary privilege based upon her work as a member of its medical staff.

MEDICAL MALPRACTICE-PEER REVIEW-DOCTOR STATEMENT TO BLUE CROSS FIRST PRIORITY HEALTH

Venosh v. Henzes, No. 11 CV 3058 (C.P. Lackawanna January 18, 2018) Nealon, J.  During the discovery deposition of the defendant-orthopedic surgeon in this malpractice case, defense counsel refused to permit the surgeon to testify regarding a written statement that he provided to plaintiff s health insurance company as part of its internal quality-of-care review of the medical treatment provided to plaintiff. Although the defense asserted that the surgeon’s statement was protected from discovery as privileged peer review, the insurer’s quality-of-care materials were later determined to be discoverable. Following plaintiff s receipt of those records, including the surgeon’s statement, she made no attempt to redepose the surgeon concerning that statement, and instead certified this case for trial based upon the Representation by counsel that all discovery was completed. After this matter was assigned a trial date, plaintiff belatedly attempted to schedule another deposition of the surgeon, and also served additional discovery seeking information related to the 2017 sale of the surgeon’s practice group, thereby resulting in the instant motion to compel once the defense objected to that requested discovery as untimely.

The surgeon’s written statement to the health insurer is clearly relevant, and the surgeon has not established that he will be subject to unreasonable annoyance, burden or expense if he is required to submit to a supplemental  deposition limited solely to the subject of that statement. While it is true that plaintiff’s procrastination and lack of diligence in attempting to redepose the surgeon on that issue should not be countenanced, the defense has not identified any prejudice that it will suffer from that additional deposition since the trial of this matter is nine months away. Therefore, the request to redepose the surgeon regarding his statement to plaintiff s health insurer will be granted. However, inasmuch as the surgeon’s practice group has confirmed that its sale in 2017 has not resulted in any separate insurance coverage or funds for plaintiff s claims, the motion to secure further financial details concerning that transaction will be denied.

The written statements that Dr. Henzes forwarded to Blue Cross on December 23, 2009, including his comments concerning Venosh’s vascular status in the recovery room, the effect of the anesthetic agents upon her neurological examination and any weakness noted in her leg, Dr. Roche’s statement regarding the location of the intimal tear, and the results of Venosh’s repeat vascular studies, are clearly relevant to the negligence and causation issues in this case. Indeed, we distinctly  noted on December 4, 2014, that Venosh would be entitled to redepose Dr. Henzes  relative to his statement  to Blue Cross if the quality-of-care review materials were determined to be discoverable on appeal. See Venosh, 40 Pa. D. & C. 5th at 429.

Scranton Orthopedic Specialists has confirmed in its responses to Venosh’s supplemental interrogatories that it was sold to Lehigh Valley Services Company in 2017, and that no separate fund has been created or otherwise earmarked for the satisfaction of any claims or lawsuits against it. Venosh’s inquiries seeking further details relating to the assets, equipment and liabilities acquired, any amounts paid to the principals of Scranton Orthopedic Specialists as part of that transaction, and copies  of  all  writings  pertaining  to that sale simply are not relevant to any issues in this case. Thus, Venosh’s request to discover that irrelevant, proprietary information will be denied.

MEDICAL MALPRACTICE-EXPERTS-CAUSATION-REMITTITUR

Tong-Summerford v. Abington Memorial Hospital, 2018 Pa. Super. LEXIS 68 (January 30, 2018) Stevens, P.J.E.  This case involved a feeding tube which was positioned in the left lung erroneously.  This caused the patient’s death.  The verdict was $5M, with 30% to wrongful death claim and 70% to the survival claim.  The expert testimony at trial was sufficient to find that the doctor violated the standard of care by failing to order another study to make sure the feeding tube was in the stomach and not the lung.  There is no entitlement to judgment n.o.v.  The criticism of care was not a misinterpretation of the x-ray but rather failing to recognize that the x-ray was inadequate and failing to order an additional x-ray to confirm placement of the feeding tube.  Counsel for patient asked an expert on radiology on cross-examination whether a first-year resident would be able to identify the path of the feeding tube from the image presented on the x-ray.  The court found there was nothing wrong with that question and did not give the misimpression of incompetency.  It also found the issue waived.  The trial court did not abuse its discretion in permitting an expert to opine that the deviations from the standard of care increased the risk of harm.  The doctor was board certified in radiology and had enough experience to give an opinion that the misplacement of a feeding tube in plaintiff’s lung increased the risk of harm to decedent.  Other claims were found to be waived.  The court found the $5M jury verdict was not excessive or punitive.  The court explained the damages in the wrongful death action as well as a survival action.  There was nothing new or novel in the court’s explanation.  The jury’s $1.5M award for wrongful death and $3.5M for conscious pain and suffering caused by the negligence of defendants fell within the uncertain limits of fair and reasonable compensation.  There was no abuse of discretion in the trial court decision to permit the doctor to reference an earlier x-ray, not specifically at issue in the negligence case.  In the context of the entire testimony, it helped the jury understand the standard medical practice pertaining to radiological studies taken to confirm the proper insertion of a feeding tube.  The earlier x-ray was within defendant doctor’s medical records which the expert said he reviewed.  Therefore there was no surprise or prejudice.  The testimony was sufficient to establish both causation and notice with respect to corporate negligence.  The evidence was not insufficient.  There was sufficient evidence to support the conclusion that the hospital’s failure to formulate and implement appropriate policies and procedures in 2008 with respect to chest x-rays was a factual cause of the patient’s death.  There were no written policies or protocols in place in 2008 regarding the performance of the chest x-ray.  There was no chest x-ray obtained as ordered by a doctor.  The technicians were left on their own to determine what anatomy to image.  There was an inconsistency within the department regarding how a chest x-ray should be performed.  Plaintiff’s expert stated that the x-ray failed to include portions of the patient’s airway to enable the physician to make a correct interpretation.  This was enough to support a corporate negligence claim.  Plaintiff’s admitting he was not a radiology technologist who had taken x-rays and has not positioned a patient for over 30 years.  Nevertheless, he was still qualified to testify by virtue of his experience in the radiology field and active medical practice.

Quality of Care May Depend on Nurses’ Health

Unhealthy healthcare workers can be dangerous to your health. For example, nursing is a high-pressure and stressful profession, and nurses are constantly exposed to germs and diseases, so it is no wonder that a recent study found that more than half of nurses reported poor physical and mental health. The study, in the online Journal of Occupational and Environmental Medicine, found depression to be the major concern of responding nurses, with about a third reporting some degree of depression, anxiety or stress.

Unfortunately for patients, nurses who are depressed or in poor health are subject to making medical errors, at a rate of 26 to 71 percent higher than their healthier peers. The National Academy of Medicine has recently acknowledged that burnout, compassion fatigue, depression, and poor work-life balance affect a large percentage of doctors, nurses and other health professionals.

If a nurse or other healthcare worker is impaired by illness or depression, or if a hospital or healthcare facility is not considering the health of their staff and fails to implement strategies to support good physical and mental health in their employees and prevent spread of disease, patients may be injured, sickened or even die as a result.

If you or a loved one has suffered harm or someone has died due to negligence of a medical professional suffering from health problems, you have the right to seek compensation for your losses. The seasoned Pennsylvania medical malpractice attorney Clifford A. Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann knows the courts and the system and what you need to do to increase your chances of winning a good settlement. We offer a free consultation to carefully examine the individual facts in your case and determine the best way to handle it. Put our experience to work for you today by calling 800-326-9259 or by using our online contact form.

Why the Problem

Nurses, doctors, interns, and other medical professionals often work irregular hours and long shifts that may contribute to fatigue and depression. In addition, healthcare workers are at great risk of contracting and spreading contagious diseases from patients, which they can then spread to other patients, who wind up with a disease that they did not have originally. All too often, healthcare workers resist vaccination, with fewer than half receiving vaccines each year for the common seasonal flu.  Unvaccinated workers who spread the flu can cause tremendous harm, especially when they are dealing with vulnerable patients, such as those in intensive-care units.

According to a 2015 study in JAMA Pediatrics, 94% of clinicians believed working when sick puts patients at risk, but they usually came to work anyway. This was due to reasons such as difficulty finding coverage, being accustomed to working through sickness, and a desire not to let colleagues and patients down. However, JAMA’s editorial staff noted that while healthcare workers are pledged to “do no harm,” they can transmit a variety of infections to patients, and common but untreatable infections like enterovirus and respiratory syncytial virus can prove deadly to patients with compromised immune systems.

What Can Be Done?

The National Academy of Medicine has made clinician well-being a high priority for healthcare quality and safety.  It has been shown that many facility-acquired illnesses can be prevented if healthcare professionals are careful and follow guidelines and stress precautions such as wearing surgical masks and washing their hands frequently.

According to many public health officials, all healthcare workers should be vaccinated. To help, some hospitals use roving carts that bring vaccines to nursing stations and staff meetings. In some facilities, those who refuse to be vaccinated must sign statements acknowledging the risk they are assuming for themselves and for their patients.

Some facilities are providing depression screenings for staff and professional help for those with mental issues. The goal is to improve staff wellness, deal with issues before they get out of hand, and decrease the chances of mistakes being made.

Malpractice Liability

Patients should have the right to expect that their healthcare professionals will not do them harm and that facilities will take every reasonable precaution to protect them from developing a new disease that they did not have upon admission. The failure of medical professionals or facilities to create and implement safe practices to protect patients can amount to medical negligence.

While it can be difficult to determine liability for injuries or death that may result, a thorough investigation into the specific circumstances of whether the harm could have been prevented may indicate who is at fault. An experienced medical malpractice attorney knows how to call in qualified expert medical witnesses to determine if there was compliance with the appropriate medical standard of care, if the illness was preventable, and if the negligence of a medical professional or staff was involved.

Cliff Rieders is a founder of the Pennsylvania Patient Safety Authority. Rieders insisted on the legislation as President of the Pennsylvania Trial Lawyers Association, now the Pennsylvania Association for Justice. The Pennsylvania Patient Safety Authority was served well by Cliff Rieders for 15 years.  The Authority is supposed to receive reports from hospitals in Pennsylvania concerning “incidents” and “serious events.”  The “serious events” are also to go the Pennsylvania Department of Health and are to be received by the patient or his/her family.

Contact Us For Help and a Free Evaluation

If you or somebody you know was harmed or someone has been injured due to the poor health of a medical worker, you can receive a free in-depth consultation by contacting attorney Clifford Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann.  Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association.  He has written a leading textbook on medical malpractice, which is used in Pennsylvania by lawyers who work in the field. He is a well-known teacher, media authority, speaker and writer who testifies frequently on medical practice matters and who has helped write Pennsylvania legislation on the subject.

Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award, the George F. Douglas Amicus Curiae Award, and the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field and has even testified before the legislature on medical malpractice laws. He is the lawyer that other lawyers call for counsel and advice and is admitted in state and federal courts, including the Supreme Court of the United States.

Contact Pennsylvania medical malpractice attorney Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling 800-326-9259, or contact us online. Based in Williamsport, our firm serves clients throughout the state of Pennsylvania and provides you with experience, knowledge, compassion, and a long history of results.

STATUTE OF LIMITATIONS-MEDICAL MALPRACTICE-SURVIVAL ACTION

Robert Dubose v. Quinlan, 2017 Pa. LEXIS 3125 (November 22, 2017) Mundy, J.  Statute of limitations for medical professional liability cases in the form of wrongful death or survival actions is two years from the time of decedent’s death.  Accordingly, the Superior Court judgment is affirmed.  Date of death of this nursing home patient was October 18, 2007.  The patient died from sepsis of multiple pressure sores which had occurred over a period of time.

The nursing home argued that the survival claims were barred by the two-year statute of limitations for personal injury actions which began to run at the time of the patient’s injury which was in 2005.  At issue was 42 Pa. C.S. § 5524(2).  It was argued by the estate of patient Dubose that even if the statute of limitations had run as to the survival action, the “discovery rule” tolled the statute of limitations.  The nursing home relied upon § 513(d) of the Mcare Act, which is the statute of repose.  A statute of repose places an outer limit on the right to bring a civil action.  That limit is measured not from the date on which the claim accrues, but instead from the date of the last culpable act or omission of the defendant.  Statute of limitations requires plaintiff to pursue “diligent prosecution of known claims.”  Statutes of repose affect the legislative judgment that defendant should “be free from liability after the legislatively determined period of time.”  Statutes of limitations, but not statutes of repose, are subject to equitable tolling.  Statutes of repose generally may not be tolled even in cases of extraordinary circumstances beyond the plaintiff’s control.  The Supreme Court held that § 513(d) declares that a survival action in a medical liability case resulting in death accrues at the time of death, not at the time of decedent’s injury.  § 513(d) establishes a specific statute of limitations for survival and wrongful death actions in medical professional liability cases that prevails over the general statute of limitations for personal injury actions contained in 42 Pa. C.S. § 5524(2).  If the General Assembly wanted to set a statute of repose of two years from the date of decedent’s death, it could have provided for that but it did not.  The survival actions were timely filed within two years of death.

Patients Cannot Get Enough Nursing Time

When Pennsylvania nurses have to work with high nurse-to-patient ratios, patients die, get infections, get injured, or get sent home too soon without adequate home-care education that can prevent further illness or deterioration. Unfortunately, there is an increasing shortage of nurses in our country, leading to a shortage of time nurses can devote to patients, and the situation is getting worse. According to the Bureau of Labor Statistics, there will be 1.2 million nursing vacancies for registered nurses between 2014 and 2022.

This is bad news for patient care.  Proper nurse staffing saves lives and reduces errors, injuries, patient complications, and nurse fatigue and burnout — situations that may lead to medical malpractice. When something goes wrong and you or a loved one has suffered injury due to nurse understaffing, you may have recourse under Pennsylvania malpractice law.

If damages were caused by negligent care on the part of nurses or other medical professionals, you may have grounds for a lawsuit to get compensation for your loss. However, not everything that goes wrong during a medical procedure is grounds for medical malpractice. For a claim to be successful, the burden of proof is on the patient to prove their case by a preponderance of the evidence.  A preponderance of the evidence is described by the courts as tipping the scale “ever so slightly” in favor of the patient.  It is important to have an experienced and skilled medical liability lawyer on your side.

The experienced and compassionate Pennsylvania medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to medical negligence. We offer a free consultation to examine your situation and show you how we can help. Call us today at 1-800-326-9259 for your free consultation, or use our online contact form.

Factors Leading to the Nursing Crisis

The following are the major reasons why the nurse-patient ratio is getting worse:

  • Aging patient population – The large baby-boomer generation is getting old. Between 2010 and 2030, the population of senior citizens will increase by 75 percent to 69 million; by 2050, an estimated 5 million peoplein the U.S. will be aged 65 and older and need more medical care.
  • Increase in chronic diseases — Older people have more chronic diseases and use more health-care services, driving the demand for nurses.
  • Nurse population aging — The country’s nurses are also aging. About one-third of the current nursing workforce will reach retirement age in the next 10 to 15 years.
  • The inadequate nursing-education system — According to an American Association of Colleges of Nursing report, “U.S. nursing schools turned away 79,659 qualified applicants from baccalaureate and graduate nursing programs in 2012 due to insufficient number of faculty, clinical sites, classroom space, clinical preceptors, and budget constraints.” Age is also a factor — as nursing faculty members near retirement, nursing schools cannot expand since they have to maintain critical student-to-teacher ratios.
  • Working conditions that nurses have to endure. While nurses can be well paid, in some settings they are severely overworked and they are undermined by other practitioners who do not have nursing skills.  Nurses may also find themselves terribly mistreated by doctors and other professional staff.  Oftentimes, nurses get the hardest work with the least support.

The Nursing Situation in Pennsylvania

According to a survey by the nurses’ union, the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP), nearly two-thirds of Pennsylvania nurses surveyed on working conditions said they are unsatisfied or highly unsatisfied with their work. Their biggest complaint is poor working conditions due to understaffing.  Nearly 90% of nurses cited inadequate and unsafe staffing as a main cause of stress in their work lives. Fifty-five percent said that staffing was often or always inadequate, and nearly nine in 10 said they have less time for their patients.

Nurses caring for critical patients were often assigned three patients instead of two, the industry norm. In less critical areas, nurses reported being assigned eight patients, instead of the norm of five patients.  In addition, half the nurses said their hospitals do not have adequate measures in place to protect caregivers from violence on the job.

PASNAP is now working with elected leaders in Pennsylvania to enact the Pennsylvania Hospital Patient Protection Act, bipartisan legislation to guarantee minimum staffing standards. HB 1426 and SB 553, modeled on an extremely successful 1999 law in California, would amend the Health Care Facilities Act to establish life-saving minimum nurse-to-patient ratios.

Many claims, especially in nursing homes, are brought because of lack of staffing. Lack of staffing can be deliberate. Some institutions know full well that they are not complying with the standard of care in terms of nursing ratios, but nevertheless undermine patient care.

We observed one situation in a well-known hospital where there was only one nurse on the floor of a critical care unit. A patient went out with his IV to bum a cigarette off somebody in the street, and was able to get out of the building, unnoticed by anyone. When the nurse was asked where the patient was, she had no idea whatsoever. Such a situation can only happen in a hospital inadequately staffed and monitored.

Contact Us for a Free Consultation

If you or a loved one has suffered from medical malpractice as a result of a nursing shortage or negligence on the part of any medical practitioners or facilities, you may be entitled to compensation for your medical expenses and other economic losses, pain and suffering, and even punitive damages if the malpractice actions are deemed malicious and reckless. However, medical malpractice laws are complicated, so it is essential to have a skilled and knowledgeable medical malpractice lawyer on your side.

The Rieders Travis Law Firm has its roots back to the Redding Allen firm from the early 1830’s.  Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state.  Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.

Whether in settlement negotiations or pursuing a favorable trial verdict, our attorneys are familiar with the law and thoroughly prepared and committed to achieving a just outcome and getting you the compensation you deserve. Together with our staff, we offer strength while providing top-notch personal service.

If you or your loved one has suffered from medical malpractice, do not delay. Consult Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling 1-800-326-9259 for a free consultation, or use our online contact form.

Our lawyers in Williamsport PA offer a free consultation on all injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

MEDICAL MALPRACTICE-PEER REVIEW PROTECTION ACT-CREDENTALING FILE

Appellant Community Medical Center appeals from an Order granting emergency petition to compel discovery of Defendant doctor’s credentialing file. The hospital took interlocutory appeal claiming that Regine/Ii vs. Boggs, 181 A.3d 293 (Pa. 2018) did not announce a blanket rule depriving all previously-protected credentialing committee materials of peer review protection. The trial court was affirmed in requiring production of the materials pursuant to the emergency motion. The Regine/Ii court indicated that the PRPA does not extend its grant of an evidentiary privilege to materials that are generated and maintained by entities reviewing the professional qualifications or activities of medical staff. In Regine/Ii, the performance file was not generated or maintained by the hospital’s peer review committee. In Krapa, the trial court conducted an in-camera review as did the Superior Court and determined that the files at issue “consist entirely of credentialing materials …. ” In terms of the doctor’s personnel files, the PRPA protections do not extend to the credentialing committee materials because this entity does not qualify as a “review committee.” Estate of Leonard P. Krapa vs. Lyons, 2019 Pa. Super. LEXIS 508.

NURSING HOMES-DAMAGES-PUNITIVE

Scampone v. Grane Healthcare Co., 2017 Pa. Super. LEXIS 603 (August 8, 2017) Bowes, J.  In this appeal, Richard Scampone, in his capacity as executor of the estate of Madeline Scampone (“Mr. Scampone” or the “Plaintiff”), challenges a number of rulings that the trial court rendered in this long-standing nursing home liability action. After close review, we reverse and remand for a new trial.

This action has been to this Court twice, the Supreme Court once, and the trial court twice.

In this lawsuit, Mr. Scampone averred that substandard care rendered by Highland and Grane caused Madeline’s dehydration, malnutrition, and second UTI and those conditions lead to her death. Punitive damages were also demanded. Mr. Scampone asserted that Grane and Highland were liable based upon theories of both vicarious liability for the actions of their employees/agents and for direct corporate liability. Vicarious liability as to Highland was based upon its employees’ failure to deliver food, water, medicine, and proper medical care to Madeline from December 18, 2003 to January 30, 2004. Grane’s vicarious liability was premised upon the fact that some of Grane’s employees were directly involved in overseeing the care delivered to patients of the nursing home. Direct corporate negligence was adopted by our Supreme Court as a basis for liability against a hospital in Thompson v. Nason Hospital, 591 A.2d 703 (Pa. 1991). In the present case, direct corporate liability was premised upon Mr. Scampone’s allegations that the nursing home was chronically understaffed, Highland and Grane knew about and failed to correct the problem, and the understaffing rendered Highland employees incapable of providing appropriate care to the nursing home residents, including Madeline. Thus, Mr. Scampone averred a breach of the duty imposed on a corporation by Thompson to formulate, adopt, and enforce adequate rules and policies to ensure quality care for the patients of the nursing home.

In 2007, the case proceeded to a jury trial, where Grane was granted a compulsory nonsuit at the close of the Plaintiff’s evidence. Thereafter, only Highland remained as a defendant. The trial court refused to submit the issue of punitive damages to the jury, but permitted the Plaintiff’s cause of action for direct corporate and vicarious liability to be submitted to the jury against Highland. The jury determined that Highland had both vicarious and direct corporate liability for Madeline’s death. It awarded Mr. Scampone compensatory damages in the amount of $193,500.

Scampone I is found at 11 A.3d 967 (Pa. Super. 2010).  That court held that Grane was subject to vicarious liability for the actions of certain employees, and that Grane was subject to direct corporate liability due to the level of control it exercised over the management of the nursing home.  Causation was found between understaffing and negligence, as a causative factor.  Scampone I also reversed the trial court’s refusal to submit the question of punitive damages to the jury.

The Supreme Court decided the case at 15 A.3d 427 (Pa. 2011).  The high court affirmed the Superior Court, but for different reasons.  It rejected the argument advanced by Highland and Grane that nursing homes and nursing home management companies were exempt from liability on a direct corporate negligence theory, and that under Thompson, liability should be limited to hospitals.  The Supreme Court permitted negligence to be proven on theories of direct and vicarious liability either concomitantly or alternatively.

Under Scampone I, the Supreme Court required an examination of the relationship between the estate and Highland Park and separately with Grane Healthcare.  The Scampone II Court indicated that both Grane and Highland could not be liable under a direct corporate negligence theory.  There must be an individualized inquiry into duties of care for each agency.

Following are thequestions:

  1. 1. Was Grane properly granted a nonsuit a second time?  The proper inquiry is whether Grane should have recognized that its contractual undertaking to manage and oversee the care and treatment of the patient was necessary for her protection.  It should have so recognized as fact based upon the evidence and the law.  A jury question was presented as to causation, and nonsuit was improperly granted by the trial court on this ground.  According to the proof, Grane’s nursing consultants failed to supervise the staff properly because the nurse consultants knew, and did nothing about the fact, that Highland staff did not provide nursing home residents proper fluid, testing, nourishment, and medication.  As we have observed in Scampone I, Mr. Scampone linked the deficiencies to the patient’s death since plaintiff’s proof was sufficient for a jury to find that insufficient staffing levels was a contributing factor in the inability of Highland employees to provide proper care to nursing home residents.  Nothing in Scampone II alters our conclusion that Grane was subject to vicarious liability.  Highland and Grane employees were joinly involved in the care rendered to the patient.  Liability therefore is joint and several.  We award a compensatory trial against Grane.  The new trial can be ordered against one, without the other, notwithstanding that they are joint tortfeasors.
  1. 2. Punitive Damages.  In this case, there was proof of systemic understaffing, the defendants’ knowledge of the same and inaction in the face of it, and the defendants’ employees altered patient records to reflect that care was given when it was not. The DOH surveys had a tendency to confirm that these types of abuses occurred. They were therefore relevant herein, and the trial court abused its discretion in excluding them from evidence.

We also conclude that the punitive damages trial must include Highland since, according to Mr. Scampone’s evidence, its employees colluded with Grane employees in some of the actions that warranted imposition of punitive damages, i.e., the alteration of patient records. There is no need to have the jury, once again, face a situation where it cannot impose liability on an entity involved in the activities at issue.

  1. 3. Discovery violations.  However, this Court does express its profound disapproval of the flaunting of the applicable discovery rules by Grane and Highland. Their failure to produce the manual and update discovery responses were improper and inexcusable, and if the fault of counsel, may well constitute a violation of the Rules of Professional Conduct. Especially egregious was Highland’s “sudden” discovery of staffing sheets during trial and payroll records critical to the understaffing issue, which was an aspect of Mr. Scampone’s punitive damages claim. Appellees also misrepresented their insurance coverage. Despite these improper actions, we cannot find an abuse of discretion in the trial court’s refusal to impose the extreme sanction of precluding Appellees from presenting a defense.

Nevertheless, some type of sanction, including a monetary fine to prevent further abuses by Appellees, would be appropriate. We observe that, in his motion, in addition to requesting that Highland be prevented from mounting a defense at the upcoming punitive damages trial, the Plaintiff did request, “such other and further relief as this Court may deem just and proper under the circumstances.” Plaintiff’s Motion To Strike Highland Defendant’s Answer And Affirmative Defenses, 9/18/14, at 9. Appellees’ contumacious behavior warranted some sort of punishment as it represented an open flaunting of the applicable discovery rules. Hence, upon remand, the trial court is to consider another type of sanction that would be appropriate herein.

  1. 4. Recusal.  No grounds for recusal are offered.
  1. 5. Entry of Judgment.  Here, Mr. Scampone did not argue that the court abused its discretion in temporarily staying his writ of execution. Rather, he asserts that the court denied him due process by enjoining his execution because he has a vested property right in that judgment. Mr. Scampone does not expand upon this position or explain how the rules regarding execution violate his right to due process. Instead, he complains that Highland could have averted this issue by tendering to him an unconditional offer.
  1. 6. Assuming Mr. Scampone has a vested property interest in his judgment, he has not argued that the trial court abused its discretion in staying his writ of execution. Moreover, even if he asserted that argument, we cannot find that the trial court abused its discretion when entering the order because this matter remained ongoing both as to Highland and Grane when the order was entered.

MEDICAL MALPRACTICE-EXPERTS-CONSORTIUM CLAIM

James v. Albert Einstein Med. Ctr., 2017 Pa. Super. 293 (September 12, 2017) Platt, J. Appellant, Florence James, individually and as the executrix of the estate of her deceased brother, Lafayette James, appeals from the jury verdict of no negligence in this medical malpractice claim. We affirm. Appellant alleges that the defendants/Appellees, five physicians and the institutional medical providers for which they practiced, failed, for a period of over six years, from December of 2004 until March of 2011, to diagnose the cause of her brother’s various recurring abdominal problems. In 2011, after a CT scan, liver biopsy, colonoscopy, and other tests, Lafayette was determined to have a neuroendocrine carcinoid tumor.  He died three years later, in February of 2014.

Appellees defended on the ground that the physicians met the appropriate standard of care in all respects. The available record confirms that for the most part, decedent Lafayette only presented every year or two, when his abdominal symptoms were acute.

Appellant also tried to introduce evidence supporting a loss of consortium by testimony from the decedent’s mother.

On independent review, we conclude that none of Appellant’s issues merit relief.

In this case, counsel for appellant obtained Dr. Peikin’s concession that he is not board certified in oncology.  Nevertheless, there is no dispute that Dr. Peikin is board certified in internal medicine and gastroenterology.

We note that the requirements for expert testimony on standard of care are even more stringent than the requirements for expert testimony on causation. Under either standard, however, we discern no error of law or abuse of discretion in the trial court’s decision to accept Dr. Peikin as an expert in the field of carcinoid tumors. Appellant’s first issue does not merit relief.

Appellant argues that Mother was improperly prohibited from testifying about the impact of the death of her son on her life. (See id. at 31-37). We disagree.

Mother would not be entitled to damages for the loss of consortium with regard to her son. It is well-settled that Pennsylvania does not recognize a right of filial consortium. See Machado v. Kunkel, 804 A.2d 1238, 1244 (Pa. Super. 2002), appeal denied, 819 A.2d 547 (Pa. 2003); see also Jackson v. Tastykake Inc., 648 A.2d 1214, 1217 (Pa. Super. 1994) (collecting cases). The trial court properly sustained objections to testimony about mother’s pain and suffering, which raised the issue of mother’s loss of consortium. Appellant’s second claim does not merit relief.

On the fifth claim, Appellant challenges the trial court’s cautionary instructions on the scope of testimony of plaintiff/Appellant’s oncology expert, Dr. Andrew Schneider. Counsel for Appellant had agreed in advance to limit the scope of Dr. Schneider’s testimony to causation, apparently in recognition of the fact that Dr. Schneider was not qualified to testify as an expert on standard of care.

We conclude that the trial court’s explanation for the repeated cautionary instructions, necessitated by the repeated failure of both Appellant’s counsel and Dr. Schneider to abide by the agreed-on restrictions, was more than adequate to demonstrate that no error of law or abuse of discretion occurred.

MEDICAL MALPRACTICE-NURSING HOMES

Breslin v. Mountain View Nursing Home, 2017 Pa. Super. LEXIS 752 (Sept. 28, 2017) Musmanno, J.  Roberta Breslin (“Breslin”), executrix of the Estate of Vincent Breslin (“Vincent”), deceased, appeals from the Order sustaining the Preliminary Objections filed by Mountain View Nursing Home, Inc. (“MVNH”), and dismissing Breslin’s claims, with prejudice. We affirm in part, reverse in part, and remand for further proceedings.

From October 9, 2013, to October 16, 2014, Vincent was a patient at MVNH.  During the year in which he was a patient at the facility, Vincent developed multiple Grade III and/or Grade IV pressure ulcers in his ischial areas, sacral area, right foot and left foot.

We conclude that application of the Althaus factors to the facts averred in the Amended Complaint weighs in favor of imposing on MVNH the non-delegable duties identified by the Thompson Court. Here, under the first Althaus factor, we conclude that there was a special relationship between MVNH and Vincent, which began when Vincent began residing as a patient at MVNH. See Althaus, 756 A.2d at 1169 (holding that duty is predicated upon the relationship existing between the parties at the relevant time). Breslin alleges that Vincent was “sick, elderly and frail,” and that he “relied completely and exclusively on [MVNH] to provide all of his medical care, daily care and personal needs.” See Amended Complaint, at ¶¶ 8, 19. Breslin further alleges that MVNH exercised compete and exclusive control over Vincent’s medical care during his stay as a patient at MVNH. These facts create the type of relationship between MVNH and Vincent to support the imposition of a duty of care. Thus, the first Althaus factor weighs in favor of imposing the non-delegable duties on MVNH.

Accepting as true the facts of the Amended Complaint and all inferences drawn therefrom, as we must, we conclude that Breslin has stated sufficient facts to establish that MVNH owed Vincent a duty of care under an Althaus analysis. See Scampone, 2017 PA Super 257 *43-44 (Pa. Super. 2017) (agreeing with the trial court’s determination that the nursing home “had a non-delegable duty to render proper care to [Ms. Scampone] by virtue of its direct contractual relationship with her, the fact that it was the licensed owner of the nursing home facility, and due to its direct rendition of care services to its residents.”). Whether these facts will survive discovery and a motion for summary judgment, or whether Breslin can meet her burden before a jury and obtain recovery, is for another day. See R.W. v. Manzek, 888 A.2d 740, 751 (Pa. 2005). It was, however, error to dismiss her claim for corporate negligence on preliminary objections. See id. We therefore reverse the trial court’s Order granting MVNH’s preliminary objection with regard to Breslin’s claim for corporate negligence based on the non-delegable duties identified by the Thompson Court.

Based on our review, we conclude that the Amended Complaint properly set forth the material allegations of negligence upon which Breslin’s claim for vicarious liability against MVNH was based, including Vincent’s inability to care for himself, his complete reliance upon the staff of MVNH “to provide all of his medical care, daily care, and personal needs[,]” and that, while under the care of MVNH’s staff, Vincent developed several pressure ulcers on his body. See Amended Complaint, ¶¶ 17, 19. While Breslin did not identify by name the nurses, doctors or other staff allegedly responsible, the names of those who performed services in connection with Vincent’s care are either known to MVNH, or could be ascertained during discovery. See Estate of Denmark, 117 A.3d at 307. When read in the context of the allegations of the Amended Complaint, Breslin’s references to “nurses, physicians, resident physicians, fellows, attending physicians, therapists, agents, servants, workers, employees, contractors, subcontractors, and/or staff” were not lacking in sufficient specificity, and pled a cause of action against MVNH for vicarious liability. See id. Thus, we reverse the trial court’s Order granting MVNH’s preliminary objections with regard to (1) Breslin’s claim for vicarious liability; and (2) insufficient specificity.

Based on our review, we cannot say that the allegations in question are “immaterial and inappropriate” to Breslin’s claims. See Common Cause/Pennsylvania, 710 A.2d at 115. Nor has MVNH affirmatively shown any prejudice resulting from these allegations. See Hartford Accident and Indem. Co., 396 A.2d at 888. Indeed, the references that the trial court struck may bear upon MVNH’s non-delegable duties, as identified by the Thompson Court, to select and retain competent physicians; oversee all persons who practice medicine within its walls; formulate, adopt, and enforce adequate rules and policies to ensure quality patient care; observe, supervise, or control the patient’s treatment approved by multiple physicians; apply and enforce its consultation and monitoring procedures; and ensure the patient’s safety and well-being while at the hospital. See Thompson, 591 A.2d at 705, 707. Accordingly, we reverse the trial court’s Order sustaining MVNH’s preliminary objection regarding scandalous and impertinent matter.

Here, Breslin alleges that MVNH, motivated by a desire to increase profits, knowingly mismanaged and/or reduced staffing levels below the level needed to provide adequate care and supervision to its patients, including Vincent. See Amended Complaint, ¶¶ 31, 32. Breslin has averred facts that establish MVNH knew, or should have known, its understaffing “created recklessly high patient-to-staff ratios, including high patient[-]to [-]nurse ratios.” Id., ¶ 36. This Court cannot say with certainty that, upon the facts averred, no reasonable inference from those facts supports a punitive damages award. Accordingly, we reverse the trial court’s Order sustaining MVNH’s preliminary objection to Breslin’s claim for punitive damages.

In sum, the facts averred in the Amended Complaint sufficiently set forth causes of action against MVNH for corporate negligence and vicarious liability pursuant to Pennsylvania law. Accordingly, we affirm the trial court’s Order as it relates to the references to fraud in the Amended Complaint, which Breslin voluntarily agreed to strike, and reverse the remainder of the Order as it relates to the other preliminary objections filed by MVNH.

Order affirmed in part, reversed in part; case remanded for further proceedings. Superior Court jurisdiction relinquished.

MEDICAL MALPRACTICE-CHRISTIAN SCIENCE

Seels v. Tenet Health Sys. Hahnemann, LLC, 2017 Pa. Super. LEXIS 532 (July 18, 2017) Shogan, J. Appellant, Raymond Seels, administrator of the estate of Terri Seels-Davila (“Seels-Davila”), deceased, and Raymond Seels,1 in his own right, appeal from the judgment entered on July 22, 2015, in favor of Tenet Health System Hahnemann, LLC, d/b/a Hahnemann University Hospital and Philadelphia Health & Education Corporation and Drexel University College of Medicine (collectively “Appellees”) in this medical malpractice action. We affirm. On September 6, 2012, Appellant filed a medical malpractice suit against Appellees and included claims of vicarious liability, corporate negligence, negligent infliction of emotional distress, wrongful death, and survival. Appellant filed an Amended Complaint on October 19, 2012, and Appellees responded by filing preliminary objections. On December 20, 2012, the trial court sustained in part and overruled in part Appellees’ Preliminary objections. The trial court struck, without prejudice, Appellant’s claims of negligence against unnamed agents, servants, employees, contractors, workmen, and apparent or ostensible agents and other language deemed overly broad in Appellant’s Amended Complaint at paragraphs 8, 24, 34, 62, 63, 66, 75, 79, 80, 82, 93, and 95. Order (Drexel), 12/20/12; Order (Hahnemann), 12/20/12. Despite the trial court striking these claims without prejudice, Appellant did not file a second amended complaint.

A jury trial began on April 21, 2015, and on April 30, 2015, the jury returned a verdict in favor of Appellees. The jury found that the conduct of Dr. Green and Dr. Daniels did not fall below the applicable standard of care. N.T. 4/30/15 at 5-6. Thus, there was no negligence which could stand as the basis for Appellant’s ancillary claims, including vicarious liability. Accordingly, the trial court entered a verdict in favor of Appellees. Appellant filed post-trial motions, and the trial court denied the motions on May 13, 2015. Appellant filed a notice of appeal on June 5, 2015.

After review, we discern no abuse of discretion by the trial court in refusing to qualify Dr. Paynter to testify as an expert. Dr. Paynter appears to conflate the medical objective of minimizing blood loss during surgery with a “bloodless medicine” program, which, as presented is primarily administrative. Dr. Paynter failed to establish that he had any specialized skill, knowledge, or experience in the area of bloodless medicine that would have aided the jury in the search for truth. Sowell, 839 A.2d at 363. Rather, we agree with the trial court that Dr. Paynter’s proposed testimony would have only served to confuse the jury. Therefore, we conclude that Appellant is entitled to no relief on this claim of error.

As discussed above, Appellant failed to produce an expert competent to testify regarding Appellees’ bloodless medicine policies or the applicable standard of care. As such, we agree with the trial court’s conclusion to grant Appellees’ motion for nonsuit as Appellant failed to provide the required support for a claim of corporate negligence. Reading Radio, Inc., 833 A.2d at 209-210; Rauch, 783 A.2d at 827. Accordingly, no relief is due.

Next, Appellant avers that the trial court erred in denying his motion in limine in which he sought to preclude the admission of the consent-for-treatment evidence. We disagree.

We agree with the trial court’s analysis, and we discern no abuse of discretion in its ruling on the admissibility of the consent forms. The consent forms were not admitted merely to show that Seels-Davila understood the risks of treatment yet elected to proceed; rather, the consents were admitted to prove that Seels-Davila knowingly refused treatments that would have saved her life. Accordingly, Appellant is due no relief on this issue.

Finally, Appellant argues that the trial court erred in the language utilized on the jury verdict slip because it did not permit the jury to consider whether “other” unnamed hospital staff members or agents were negligent. Appellant’s Brief at 37. This argument is meritless, and it fails to acknowledge or address a pretrial ruling striking allegations in Appellant’s complaint.

Appellant’s line of argument is absurd on its face, given that he asserted in his own Amended Complaint that Appellees were vicariously liable for Drs. Daniels’ and Green’s allegedly negligent acts, and Appellant’s counsel used Dr. Prince’s testimony to suggest that these two doctors gave Seels-Davila substandard treatment. See Amended Complaint at 7, 14; N.T. 4/23/15 at 34-55, 57-144 (testimony from Dr. Prince regarding treat[ment] provided by Drs. Daniels and Green to Seels-Davila). Furthermore, the verdict sheet’s plain language that Drs. Daniels and Green were being referred to therein as Appellees’ agents or employees, rather than as direct defendants. See id.62

Additionally, Appellant’s counsel fails to identify, in anything more than vague terms, any other agents or employees for whom Appellees were vicariously liable who should have been named on the verdict sheet. See Statement of Errors at 9-10. The only evidence of possible negligence presented by Appellant pertained to the actions of Doctors Green and Daniels. Assuming arguendo that this allegation of error referred to the Hahnemann PACU staff, see N.T. 4/28/15 at 47, 111-12, this argument is still without merit. First, as noted supra, Judge Panepinto struck “all of Appellant’s allegations of negligence against unnamed agents, servants, workmen, employees, contractors and/or apparent of ostensible agents of Hahnemann,” without prejudice on December 20, 2012. See Panepinto Order, 12/20/12 #1 at 1. At no point thereafter did Appellant’s counsel address this ruling by filing a more specific Second Amended Complaint on behalf of her client. Therefore, with regard to Hahnemann, the only employees or agents for which that entity could have been deemed vicariously liable were those specifically named in Appellant’s Amended Complaint, a group which obviously did not include the unidentified members of the PACU staff. Moreover, despite Appellant’s counsel claim that her client was prejudiced by the “error”, counsel has failed to offer a scintilla of evidence, or explanation, as to the nature of the prejudice.

After review, we discern no errors of law or abuses of discretion committed by the trial court. Accordingly, we affirm the July 22, 2015 judgment entered in favor of Appellees.

Judgment affirmed.

MEDICAL MALPRACTICE-INFORMED CONSENT-RISK/COMPLICATION EVIDENCE

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 trial court denied the Motion.  The trial court allowed the introduction of testimony related to the general risks and complications of a laparoscopic hysterectomy. Here, while evidence of risks and complications of a surgical procedure may be admissible to establish the relevant standard of care, in this case, such evidence was irrelevant in determining whether Defendants, specifically Dr. Shikora, acted within the applicable standard of care. Acknowledging a liberal threshold to determine the relevancy of such evidence, we nevertheless emphasize that the evidence must be probative of whether Defendants’ treatment of Mitchell fell below the standard of care. The fact that one of the risks and complications of the laparoscopic hysterectomy, i.e., the perforation of the bowel, was the injury suffered by Mitchell does not make it more or less probable that Dr. Shikora conformed to the proper standard of care for a laparoscopic hysterectomy and was negligent. Indeed, in deciding to undergo this surgery, Mitchell expects that the treatment will be rendered in accordance with the applicable standard of care, regardless of the risks. Moreover, the evidence would tend to mislead and/or confuse the jury by leading it to believe that Mitchell’s injuries were simply the result of the risks and complications of the surgery.  Thus, the risks and complications evidence was immaterial to the issue of whether Defendants’ treatment of Mitchell met the standard of care. Accordingly, we hold that the evidence was inadmissible, and that the failure to grant Mitchell’s Post-Trial Motion on this issue was error by the trial court. Based upon the foregoing, we reverse the Judgment entered in favor of Defendants, and conclude that a new trial without the admission of risks and complications evidence is required.

MEDICAL MALPRACTICE-STATUTE OF LIMITATIONS-TOLLING-DISCOVERY RULE

Fidler v. Geisinger Med. Ctr., 2017 U.S. Dist. LEXIS 165534 (M.D. Pa. October 5, 2017) Brann, J.  Treatment in 2011 by Geisinger Medical Center and doctors for chronic, non-healing wound on sole of plaintiff-patient’s right foot.  Case filed August 16, 2015.  Plaintiff was treated by a doctor in Florida through March 2011.  During this time, and unbeknownst to the patient, a pathology report confirmed that the chronic, non-healing wound on the right foot is actually melanoma.  From August through October 2011, Plaintiff was treated by Geisinger Defendants.  During that time, Geisinger Defendants neither independently diagnosed Plaintiff nor did they receive the 2011 pathology report confirming a melanoma diagnosis.  From January 2012 through June 2013, Plaintiff was treated by two different wound care specialists.  He discontinued treatment with both physicians prior to uncovering his underlying affliction.  In June 2013, Plaintiff began to treat with a Dr. Bernstein and received a diagnosis of the previously undisclosed malignant melanoma.  Plaintiff requested his medical records from the Geisinger Defendants.  While the records did not include the 2011 pathology report, Plaintiffs nevertheless instituted this action on August 15, 2015.  It was not until July of 2015, following commencement of a lawsuit against the doctor in Florida, the Plaintiff became aware of a fax cover sheet intimating that medical records had in fact been sent to Geisinger Defendants.  The court found that Plaintiff’s claims accrued on June 28, 2013, and no genuine dispute of material facts existed as to the applicability of the tolling doctrines.  The case is time-barred.  The statute of limitations began running June 28, 2013.  On that date, Plaintiff learned that he had a biopsy proving melanoma dating back to 2011 treatment with the Florida doctor.  The melanoma was undiagnosed and untreated by subsequent medical providers, including Geisinger Defendants.  Given the June 28, 2013 accrual date, Geisinger Defendants argued that Plaintiff’s August 16, 2015 complaint was untimely because it was filed 54 days following the expiration of the applicable 2-year statute of limitations.  The court agreed.  It is undisputed that on June 28, 2013, Plaintiff had inquiry notice of “injury” but not necessarily “legal injury” attributable to the actions of Geisinger Defendants.  The words and actions of the Plaintiff acknowledged that “injury” by Geisinger Defendants as learned on June 28, 2013, extended beyond the legal theory of “failure to act” under the 2011 pathology report to a broader formulation of injury.  It was only in the amended complaint on November 16, 2015, that a claim was made that Geisinger Defendants possessed but failed to act on the 2011 pathology report.

Based on the above reasoning in conjunction with my review of the factual record, I find that Plaintiff knew, through his June 28, 2013 diagnosis, that he had melanoma as early as 2011 and his subsequent physicians failed to inform and/or treat him accordingly.  As a matter of law, the statute of limitations began to run on that date.  Plaintiff’s argument to the contrary, relying on an unsupported formulation of “legal injury,” is therefore unavailing and insufficient to prevent the imposition of summary judgment.

Viewing the factual record in the light most favorable to Plaintiff, I nevertheless find that he has not proven by “clear, precise, and convincing evidence” that an estoppel has resulted.  The fraudulent concealment doctrine therefore does not save Plaintiff’s claims.  In reaching this conclusion, I note that the doctrine of fraudulent concealment employs the same standard as the discovery rule and, in relying on Geisinger Defendants’ non-production of the 2011 Pathology Report, Plaintiff is again relying on a foreclosed theory of “legal injury.”  This argument fails as a matter of law.

The above persuasive case law leads the Court to two conclusions.  First, while Plaintiff argues that Geisinger Defendants’ failure to produce the 2011 Radiology Report in July 2013 constituted fraudulent concealment sufficient to toll the statute of limitations, this argument relies upon a formulation of “legal injury” that is legally foreclosed.  Second, Plaintiff’s contention that this failure by Geisinger Defendants to produce the 2011 Pathology Report effectively relaxed his vigilance is contradicted by his own actions.  Specifically, and as noted and detailed more fully above, Plaintiff filed an August 15, 2015 Complaint which, by any reasonable interpretation, was premised at least in part on conduct independent of the 2011 Pathology Report.

Therefore, I find that the factual record, viewed in the light most favorable to Plaintiff, does not prevent the issuance of summary judgment in favor of Geisinger Defendants on this alternative tolling doctrine.  Specifically, as no genuine dispute of material fact remains concerning the fraudulent concealment, I find that Geisinger Defendants are entitled to summary judgment as a matter of law.  Plaintiff’s claims remain time-barred.

ARBITRATION-MEDICAL MALPRACTICE-NURSING HOME MALPRACTICE-POWER OF ATTORNEY

Kindred Nursing Ctrs. P’ship, et al. v. Clark, 2017 U.S. LEXIS 2948 (May 15, 2017) Kagan, J.  Justice Kagan wrote that the Federal Arbitration Act requires courts to place arbitration agreements under equal footing with other contracts.  The Kentucky Supreme Court said that a general grant of power of attorney does not permit a legal representative to enter into an arbitration agreement for someone else.  In this case, the arbitration agreement required arbitration of a claim against the nursing home.  Because the rule singles out arbitration agreements for disfavored treatment, the Supreme Court of the United States, with Justice Thomas dissenting, said that it violated the Federal Arbitration Act.  This absolutely horrible opinion said the court may invalidate arbitration agreements based on generally applicable contract defenses like fraud or unconscionability, but not on legal rules that apply only to arbitration or derive their meaning from the fact that an agreement to arbitrate is at issue.  The Act also displaces any rule that covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements.   The court mocked the reasoning of the Kentucky Supreme Court.  Justice Kagan blew aside the right to trial by jury, suggesting that the FAA “edict” seemed to surpass constitutional principles.  There is never any direct discussion of the 7th Amendment.  However, the Kentucky Supreme Court said that the power of attorney was insufficiently broad.  The court said that for that reason it would send the case back to determine whether the reason arbitration was not allowed was because of the breadth of the power of attorney as opposed to the fact that arbitration agreements were being handled differently than others.

MEDICAL MALPRACTICE-NEW TRIAL

Crespo v. Hughes, 2017 Pa. Super. LEXIS 535 (July 18, 2017) Ransom, J. Appellants, William B. Hughes, M.D., Hughes & Hensell Associates, P.C., and Temple University Hospital, Inc., appeal from the judgment entered June 21, 2016, in favor of Appellees, Antonio Crespo in the amount of $4,679,676.00 and Edward Torralvo in the amount of $538,000, following a twelve-day jury trial finding Appellants liable for medical malpractice. We affirm in part but remand for a new trial limited to damages attributable to Appellee Crespo. 1. Wage Loss Claim. In their first issue, Appellants maintain that the court erred in denying their pre-trial motion in limine to preclude the wage loss claim. Appellants’ Br. at 18; 1925(b) statement, 7/29/2016, at 1. According to Appellants, Crespo had earned income as a construction worker from 2001 to 2008, until injuring his back in an unrelated incident. However, Appellants claim that there was no documentary evidence to support his contention that he worked as a musician in 2009, 2010, or 2011, prior to his injury in this matter. Appellants argue that Crespo never filed any tax returns reporting income he allegedly earned as a musician. In response to the pre-trial motion in limine, Appellees maintained that Crespo’s pre-trial deposition established that he had a career as a musician and that there was sufficient evidence to present the wage loss claim to the jury based on reports of vocational and actuarial experts that proposed to testify as to Crespo’s loss of potential earning capacity. In addition, Appellees’ expert report from their vocational expert, Dr. Robert Cipko, provided pertinent wage calculations for a musician in the Philadelphia area. Here, Appellees presented sufficient evidence that Crespo’s economic horizons had been shortened as a direct result of his injury for his wage loss claim to go to trial. See Lupkin, 636 A.2d at 664; Kearns, 493 A.2d at 1364. Accordingly, we discern no error of law or abuse of discretion in the trial court’s denial of Appellants’ pre-trial motion in limine to preclude the wage loss claim. See Parr, 109 A.3d at 690. The court determined that the probative value of Crespo’s marijuana use was outweighed by the tendency of the evidence to be unfairly prejudicial to the defense. See TCO at 22. We agree. Crespo’s marijuana use is not relevant to any fact that is of consequence in the underlying cause of action. Accordingly, the trial court did not abuse its discretion in precluding questions related to his marijuana use. See Pa.R.E. 403. Here, the trial court found that “past support orders would risk inducing the jury to render a verdict based on emotion or contempt.” TCO at 25. We agree. The court has broad discretion to exclude potentially misleading evidence based on the danger of unfair prejudice. According to Appellants, Dr. McClellan rendered an expert opinion on causation even though he was not identified as an expert. See Appellants’ Br. at 10-12 (citing in support Pa.R.C.P. 4003.5 (requiring pre-trial disclosure of experts and expert reports “acquired or developed in anticipation of litigation or for trial”); Sindler v. Goldman, 454 A.2d 1054, 1057 (Pa. Super. 1982) (recognizing that compliance with Rule 4003.5 is critical to prevent unfair surprise)). Dr. McClellan is a physician specializing in plastic and reconstructive hand surgery and wound healing with whom Crespo had seventeen office visits. See N.T., McClellan, 2/2/2016, 19. Dr. McClellan performed the surgical amputation of his fingers. See id. On direct examination, counsel asked Dr. McClellan to clarify a note on his medical records regarding the cause of devitalization in Crespo’s fingers. See id. at 28. Dr. McClellan testified, over Appellants’ objection, that “[he] felt that the treatment rendered previously and the acid caused these injuries.” Id. In this instance, Dr. McClellan was asked to clarify his own notes on medical records that he made at the time of rendering treatment to Crespo as his treating physician. Because Dr. McClellan’s opinions were not developed in anticipation of litigation, Rule 4003.5 does not apply. See, e.g., Miller v. Brass Rail Tavern, 664 A.2d 525, 531-32 (Pa. 1995) (noting that, under Pa.R.C.P. 4003.5, the rule of preclusion for failing to identify experts applies only where the expert opinions were formulated “in anticipation of litigation or for trial”). Accordingly, Appellants’ argument is without merit, and we discern no abuse of the trial court’s discretion. Next, Appellants contend that the court erred in permitting Cruz to render expert opinions regarding Crespo’s pre-injury and post-injury skill as a musician. They argue that this testimony exceeded the scope of Pa.R.E. 701 because the “average lay person is unlikely to know anything about the Latin music business and/or the cuatro guitar, let alone what someone who plays the cuatro guitar would be expected to earn.” Appellants’ Br. at 14-15. According to Appellants, Appellees’ failure to provide notice of such expert testimony prevented them from retaining an expert in the music industry to rebut their opinions. Appellants’ argument is not persuasive. We discern no abuse of the trial court’s discretion. In their fifth issue, Appellants contend that the court erred in allowing Appellees’ standard of care expert, Dr. Mosier, to testify outside of the scope of his pretrial report. Upon review of the record, we deem this issue as properly preserved at trial. Nevertheless, as noted by the trial court, because Dr. Mosier relied upon the policies in reaching his conclusions, the trial court properly overruled Appellants’ objections. See TCO at 21. We discern no abuse of discretion. Accordingly, Appellants’ claim is without merit. The trial court made a pre-trial ruling that precluded Dr. Toborowsky from testifying about “Crespo’s history of molestation at the hands of his uncle” before the jury. TCO at 23; see also N.T., Toborowsky, 2/9/2016, at 21. The court found that this abuse was: remote in time in comparison to the loss of fingers; overly prejudicial due to the nature of the subject matter; and far more prejudicial than probative. TCO at 24.8 We agree. The court has broad discretion to exclude evidence where it finds that its probative value is outweighed by unfair prejudice or needless presentation of cumulative evidence. Brady, 80 A.3d at 484; see also Pa.R.E. 403. Accordingly, the court did not abuse its discretion in limiting Dr. Toborowsky’s testimony. In their seventh issue, Appellants contend that the court erred in permitting cross-examination of Appellant Dr. Hughes with scientific literature from 2015, when the events in question occurred in 2011. See Post Trial Motion, 2/22/2016, at 3; 1925(b) Statement at 1; Appellants’ Br. at 23. According to Appellants, the article constituted hearsay and it was erroneous for the court to permit Dr. Hughes to read the article into evidence. Id. (citing in support Majdic v. Cincinnati Machine Co., 537 A.2d 334, 339 (Pa. Super. 1988) (en banc); Burton-Lister v. Siegel, Sivitz and Lebed Assocs., 798 A.2d 231 (Pa. Super. 2002)). In support of their argument, Appellants rely upon Burton-Lister, in which this Court considered a litigant’s failure to make a specific objection to the impermissible reading of an article and failure to request a specific limiting instruction for the jury dispositive to preserving the issue on appeal. Burton-Lister, 798 A.2d at 239-40. Similarly, Appellants failed to request any instruction to limit the jury’s consideration of the treatise to the proper purpose for impeachment of Dr. Hughes. See id. Accordingly, we deem this matter waived and we need not reach the issue of prejudice. Burton-Lister, 798 A.2d at 239-40 (failure to make specific objection and request limiting instructions rendered the issue waived); see also Aldridge, supra. This was clear error by the trial court. Here, Crespo’s 2014 conviction for receiving stolen property is crimen falsi that is per se admissible under Pa.R.Evid. 609. See Allen, 653 A.2d at 1253. Moreover, upon a party’s request for a crimen falsi jury instruction following such evidence, the court should instruct the jury regarding its relevancy and the use of which the jury can make of it in determining the witness’s credibility. See Commonwealth v. LaMassa, 532 A.2d 450, 452 (Pa. Super. 1987). Despite the request for a crimen falsi instruction, the court refused to instruct the jury as required, thus compounding the violation of Rule 609. See N.T., Points for Charge, 2/9/2016, at 24-25; but see LaMassa, 532 A.2d at 452. Clearly, Crespo’s testimony controlled the outcome of his claims for damages. His testimony was instrumental in establishing not only his status as a musician before the accident and his lost earning capacity after the accident, but also the severity of his injury, i.e. his pain and suffering. Thus, the court’s erroneous rulings directly and adversely impacted Appellants’ ability to challenge the credibility of Crespo’s damages claims. We must determine whether Appellants are entitled to a new trial limited to damages. This is not a case in which the issue of damages is intertwined with the issue of liability and the issue of liability is free from doubt based on the record. Kiser, 648 A.2d at 8. It is fair here to both parties to limit the new trial to the specific issues of damages. See id. Accordingly, we reverse the damages awarded for Crespo’s noneconomic and wage loss claims, and remand for a new trial limited to determining damages, permitting cross-examination of Crespo regarding his prior conviction and juror instruction regarding the impeaching effect of his prior conviction. Nevertheless, we briefly note the following. Appellants allege that there is no evidence that Appellee Torralvo suffered an injury. See Appellants’ Br. at 29. To the contrary, as recognized by the trial court, the jury considered substantial evidence of an injury. See TCO at 27-28. For example, Torralvo testified that his right index finger was repeatedly injected and that the injections caused his fingers to blister, change colors, and experience significant pain and cold sensations. See id. (citing testimony). The jury also saw photos of Torralvo’s finger, which depicted the black portion of his finger that had to be surgically removed due to necrosis. See id. The evidence established Torralvo had permanent disfigurement. Id. Toralvo also complained of ongoing pain and difficulty in cutting his fingernails to the jury. See N.T., Torralvo, 2/4/2016, at 49; N.T., McClellan, 2/2/2016, at 23-24. Accordingly, the court did not abuse its discretion in determining that Torralvo’s award for pain and suffering was not so excessive as to shock the conscience. See Gbur, supra.

MEDICAL MALPRACTICE-PEER REVIEW

In this case, a doctor was the plaintiff, claiming that outside peer review was done to ruin his career.  The hospital was concerned that the physicians had performed unnecessary stent procedures.  They wanted to take action against the physicians.  The physicians sued, claiming that the hospital was in bad faith in trying to undermine their practice of medicine.  The question was the discoverability of the outside peer review done by the hospital.  Communication had been sent to a non-attorney, and there was also a question of waiver.  The lawyer in question was not involved in legal discussions about whether the doctors would be publicly named as having unnecessarily performed the stent procedures.  The attorney was hired by Excela to handle a media event announcing the results of the investigation by the hospital and it was not consulted to aid in the legal discussion.  The lawyer in question was hired to orchestrate the media event.  Excela does not support its factual position that Jarrard was in any way a participant into the question of the legal advisability of naming the two doctors during the public announcement.  Jarrard was an independent contractor hired, in this instance, to aid Excela in making a public announcement about the purported stenting issues and the doctors involved.  The issue of the legal ramifications of naming the doctors was already a decided matter when Jarrard was engaged.  As to the work product privilege, the party invoking the privilege must delineate facts showing the privilege has been properly invoked.  Once this is done, the burden shifts.  There was no pending litigation, and nothing was prepared in anticipation of litigation.  Citing the Sandusky case, the court agreed that Excela may have been fearing litigation.  The opinion letter did fall within the penumbra of the work product privilege.  However, the question is whether it was waived.  The work product privilege, like the attorney-client privilege, was waived through Excela’s dissemination of the relevant email to an outside party, Jarrard.  Bousamra, MD v. Excela Health, No. 1637 WDA 2015 (Pa. Super. March 13, 2017) Bowes, J.

Hammons v. Ethicon, Inc., No. 03913, Control No. 15083405 (C.C.P. Philadelphia September 30, 2016)

On May 31, 2013, Plaintiff Patricia Hammons commenced this action by filing a complaint against defendants for injuries stemming from the implantation of Pro Lift Pelvic Mesh.  On December 22, 2015, the jury assessed $7 million in punitive damages, raising the total verdict to $12.5 million plus the addition of delay damages.  Delay damages of $797,602.70 were added to the verdict.  Patricia Hammons is a 65-year-old woman.  Mr. [sic] Hammons lives in Washington, Indiana.  Ms. Hammons was diagnosed with pelvic organ prolapse in 2009.  Pelvic organ prolapse occurs when the pelvic organs drop from their normal place in the abdomen and push against the walls of the vagina.  Ms. Hammons was diagnosed with an anterior prolapse of her uterus and bladder.  At the time of her diagnosis, Mrs. Hammons was sexually active and the condition was mild and painless.  This case was tried based upon Indiana law in connection with products liability.  Despite preservation notices concerning pelvic mesh litigation, thousands of documents were destroyed and could not be produced to plaintiff.  The Court allowed plaintiff to present evidence of the unavailability of documentation and also allowed defendant to present evidence concerning the reasons for the destruction, which they claimed, was appropriate and inadvertent.  A jury is entitled to know what documentation was and was not available to counsel in preparing and presenting their case.  Given this information the jury without any need for instruction from the court could understand why other documents had not been presented to them [sic] draw whatever conclusions were appropriate from this evidence.  Punitive damages was governed by New Jersey law.  Given the persistent pain and inability to have sex which Ms. Hammons has suffered, the effect on her relationship with her boyfriend, the effect on her self-image, and the embarrassment and humiliation she has suffered together with the multiple surgeries the evidence clearly supported the compensatory and punitive verdicts of the jury.  The evidence presented concerning the issues in development including the questions specifically raised by defendant’s own investigator supported the propriety of the punitive damage award.

Crespo v. Hughes, No. 2231 EDA 2016 (C.C.P. Philadelphia September 2, 2016)

Defendants-Appellants are William Hughes, M.D. and Hughes & Hensell Associates, P.C. (hereinafter “Defendants”).  Plaintiffs-Appellees are Antonio Crespo (hereinafter “Crespo”) and Edward Torralvo (hereinafter “Torralvo”).

This case was called to trial with jury selection on January 29, 2016.  After hearing evidence, the jury rendered a verdict for Plaintiffs against Defendants on February 12, 2016.  The jury verdict for Crespo was in the gross amount of $4,526,000.  The jury verdict for Torralvo was in the amount of $500,000 for non-economic damages only.

This case involved amputation of fingers because of alleged mistreatment at defendant hospital.

Hughes Defendants state the following matters complaied of on appeal:

  1. (1) The court abused its discretion when it permitted “fact witnesses,” Dr. McClellan, Charlie Cruz, and David Lapointe to offer expert opinions at trial;
  2. (2) The court erred in denying Defendants’ pre-trial Motion in Limine seeking to preclude Plaintiff Crespo’s wage loss claim;
  3. (3) The court erred in its handling of Plaintiff Crespo’s criminal conviction;
  4. (4) The court erred in not permitting Defendant Hughes and Defense expert Lozano from addressing pathology findings that were raised and/or referenced by treating physician, Dr. McClellan;
  5. (5) The court erred in permitting cross-examination of Defendant Dr. Hughes with literature from 2015;
  6. (6) The court erred in granting Plaintiff’s Motion in Limine seeking to preclude references to Plaintiff’s marijuana use and child support orders;
  7. (7) The court erred in limiting the testimony of defense psychiatric expert, Dr. Toborowsky;
  8. (8) The court erred in allowing Plaintiffs’ standard of care expert, Dr. Mosier, to testify outside the scope of his pretrial report; and
  9. (9) The court erred in denying Defendants’ Motion for Remittitur.

The court found that it made no errors with respect to the above.

Vaccaro v. Scranton Quincy Hospital Company, No. 14 CV 7675 (C.C.P. Lackawanna October 27, 2016)

The “Motion in Limine of Defendants, Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital, and Scranton Quincy Clinic Company d/b/a Physicians Health Alliance, Inc., to Preclude Plaintiffs’ Expert Opinions and/or Testimony Regarding the Efficacy and Medical Necessity of Alternative Therapy/Treatment” is DENIED.  Relying on Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the hospital defendants seek to preclude any testimony by plaintiffs’ experts, Tiffani McDonough, M.D., and B. A. McGettigan, RN, MS, CNLCP, regarding stem cell treatment, Anat Baniel Method (“ABM”) therapy, and intensive therapy at the Neurological and Physical Abilitation (“NAPA”) Center ohn the grounds that it involves novel scientific evidence whose underlying methodology has not gained general acceptance in the relevant scientific community.  Referencing literature published by the American Neurological Association, information provided on the NAPA Center’s website, http://www.anatbanielmethod.com//children/cerebral-palsy, and the academic and professional qualifications of Dr. McDonough, plaintiffs submit that stem cell treatment, ABM therapy and NAPA Center therapy do not involve novel science and have gained general acceptance in the pediatric neurology community.

The only scientific literature that has been submitted for review supports plaintiffs’ assertion that stem cell treatment, ABM therapy and NAPA Center therapy do not involve novel science or implicate methodology that has not gained general acceptance in the field of pediatric neurology.  Therefore, a Frye hearing is not warranted under Rule 207.1.

The “Motion in Limine of Defendants, Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital and Scranton Quincy Clinic Company, d/b/a Physician’s Health Alliance, to Preclude Plaintiffs’ Expert Opinions and/or Testimony Regarding the Life Expectancy of Emma Vaccaro” is DENIED.  Defendants lodge Frye objections to the conclusions of Dr. McDonough and Nicholas Abend, M.D., that Emma Vaccaro has a “near-normal life expectancy,” and argue that “neither Dr. Abend nor Dr. McDonough account for Emma Vaccaro’s co-morbidities and the risk facts associated with a reduced life expectancy, including cerebral palsy, epilepsy, and G-tube dependence.”  As noted above, challenges to an expert’s opinion, rather than the expert’s methodology or underlying scientific principles, does not provide a proper basis for the exclusion of expert testimony under Frye and Rule 207.1.

The “Motion in Limine of Defendants, Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital and Scranton Quincy Clinic Company d/b/a Physician’s Health Alliance, Inc., to Preclude Speculative Opinions and/or Testimony Regarding Causation” is DENIED.  Defendants seek to preclude any testimony by Dr. McDonough, James J. Abrahams, M.D., Paul A. Caruso, M.D., Corinne L. Leach, M.D., and Jordan Perlow, M.D., concerning the cause of Emma Vaccaro’s global hypoxic-ischemic injury.

In light of this less demanding causation standard, an opinion by a medical expert is sufficient to establish causation even if the expert opines that other naturally occurring conditions combined with medical negligence to produce an indivisible harm to a newborn child.

Hence, it is not necessary for Dr. Abrams, Dr. Caruso, Dr. McDonough, Dr. Leach and Dr. Purlow to specify what fetal harm was caused by the placental abruption as opposed to defendants’ failure to promptly and properly treat that condition on December 13, 2012.

“The Motion in Limine of Defendants, Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital and Scranton Quincy Clinic Company d/b/a Physicians Health Alliance, Inc., to Preclude Speculative Opinions and/or Testimony Regarding In-Home Care” is DENIED.  Defendants baldly assert that the cost projections for Emma Vaccaro’s home-care set forth in the life care plan prepared by palintiffs’ expert, B. A. McGettigan, RN, MS, CNLCP, “are merely speculative and based on conjecture” since they are “medically unsubstantiated.”

Once again, defendants’ objections are more properly addressed to the weight, not the admissibility, of plaintiffs’ life care plan evidence.

The “Motion in Limine of Defendants, Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital and Scranton Quincy Clinic Company d/b/a Physicians Health Alliance, Inc. to Preclude Plaintiffs from Offering Opinions and/or Testimony Regarding Corporate Negligence at the Time of Trial” is DENIED.  Defendants seek to bar plaintiffs’ experts, Jordan Perlow, M.D., and Howard Blanchette, M.D., from testifying in support of plaintiffs’ claims for corporate negligence against the hospital defendants.  Defendants contend that the opinions of Dr. Perlow and Dr. Blanchette “that Dr. DeCesare was unfamiliar with the hospital policy regarding STAT Cesarean sections amount to criticism of an individual, not an institution,” and do not provide sufficient support for a corporate liability claim.

If health care professionals providing treatment within a hospital or similar facility lack familiarity with that institution’s policies and procedures due to inadequate education or training of those professionals, then the institution itself may be corporately liable for failing to enforce its policies and oversee all persons who practice medicine within its walls.

“Defendants, Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital and Scranton Quincy Clinic Company d/b/a Physicians Health Alliance, Inc.’s Motion in Limine to Preclude Plaintiffs’ Negligent Infliction of Emotional Distress Claim” is DENIED.

Plaintiffs’ submissions reflect that Ms. Vaccaro is advancing a claim for NIED under the “physical impact” rule for the trauma she experienced in connection with her placental abruption, as well as the “bystander rule” for the harm that she observed being inflicted upon Emma Vaccaro.  Contrary to defendants’ argument, a relative’s “observance of the lack of medical care” is adequate to sustain a claim for NIED.

ARBITRATION-MEDICAL MALPRACTICE-NURSING HOMES

Taylor v. Extendicare Health Facilities, 147 A.3d 490 (Pa. 2016).  JUSTICE WECHT. The Federal Arbitration Act (“FAA”) provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Pennsylvania Rule of Civil Procedure 213(e) requires the consolidation of survival and wrongful death actions for trial. A representative of Extendicare Health Facilities, Inc., d/b/a Havencrest Nursing Center (“Extendicare”), executed an arbitration agreement with Anna Marie Taylor (“Decedent”) requiring the arbitration of claims arising from Decedent’s stay at the Extendicare facility. Following Decedent’s death, Daniel and William Taylor (“the Taylors”) brought wrongful death claims on behalf of themselves as wrongful death beneficiaries and survival claims on behalf of Decedent’s estate against Extendicare and two other defendants. Extendicare moved to bifurcate the wrongful death and survival actions, and to compel arbitration of Decedent’s survival claim pursuant to the arbitration agreement and the FAA. The trial court relied upon Rule 213(e) to deny Extendicare’s motion to bifurcate, and the Superior Court affirmed. We granted review to determine whether the FAA preempts the lower courts’ application of Rule 213(e) under the facts presented. Upon review, we conclude that the FAA preempts the application of Rule 213(e), and requires arbitration of the survival claim against Extendicare. We therefore reverse the Superior Court, and we remand to the trial court for further proceedings.

The FAA was intended by Congress “first and foremost” to ensure judicial enforcement of arbitration agreements into which parties had entered.

Originally, the FAA was perceived to be a procedural statute applicable only in federal courts.

By striking down state laws targeting arbitration agreements, the Supreme Court has limited the role of state courts to regulating contracts to arbitrate under general contract law principles in accord with the savings clause, under which it has held that only “generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2.”

The FAA is now perceived as applying to almost every arbitration agreement, although the savings clause envisions a limited role for state law. In this respect, arbitration has come a long way from its origin as a mutually agreed-upon method of dispute resolution by two business entities of equal bargaining power, and now is employed in a variety of contracts, many of which are contracts of adhesion.  As arbitration clauses proliferate, individuals will ever more broadly exchange their right to a jury trial for basic consumer products or nursing home care.

One of the striking consequences of the shift away from the civil justice system and toward private adjudication is that corporations are routinely stripping individuals of their constitutional right to a jury trial. While one’s right to a jury trial may be waived, it is not at all apparent that signatories to arbitration agreements are aware that they waive their right to a jury trial upon the execution of an arbitration agreement.

The only exception to a state’s obligation to enforce an arbitration agreement is provided by the savings clause, which permits the application of generally applicable state contract law defenses such as fraud, duress, or unconscionability, to determine whether a valid contract exists.

Rule 213(e), however, is not a substantive defense, but a procedural mechanism to effectuate the state’s interest in the efficient resolution of wrongful death and survival actions in one judicial forum. Thus, it does not fall within the savings clause.

Declining to bifurcate the wrongful death and survival actions against Extendicare in the interest of efficiency would nullify the ADR Agreement, a result not permitted by the Supreme Court’s FAA jurisprudence.

We cannot, however, disregard or defy controlling precedent from the United States Supreme Court in order to redress these inequities and deficiencies.

Upon remand to the trial court, the parties will have the opportunity to litigate whether there is a valid and enforceable arbitration contract in accord with generally applicable contract defenses and the FAA’s savings clause.

MEDICAL MALPRACTICE-DRUG USING EMPLOYEE-DANGER TO PATIENTS AND THIRD PARTIES

Plaintiffs, including a person who died of Hepatitis C, sued UPMC Presbyterian Shadyside and Maxim Healthcare Services in connection with a drug addict radiologist employee of Maxim who worked at UPMC.  UPMC fired the radiologist and banned him from the premises, but did not report him to criminal authorities.  Plaintiffs were patients in the cardiac cath unit during the drug dependent employee’s employment there.  Each plaintiff received intravenously administered medication using the syringe that the employee used to self-administer controlled substances, refilled with water, and replaced for use by unsuspecting staff upon patients.  Plaintiffs alleged that the employee transmitted the Hepatitis C infection to them and others through contaminated needles.  One plaintiff died due to the infection.  The court carefully examined the duty of care in a negligence case.  Both UPMC and Maxim knew that the employee was an addict who would continue to steal controlled substances.  The court distinguished other case law.  Seebold v. Prison Health Services, Inc., 57 A.3d 1232 (2012) was the Pennsylvania Supreme Court case imposing no duty on the part of defendants, stating that the healthcare provider had no duty of reasonable care to warn or otherwise protect a prison guard charged with strip-searching inmates from the dangers of the transmission of MRSA from its patients.  This case is different because it is not a physician-patient relationship.  The radiologist in Walters was an employee of UPMC and Maxim, not a patient.  UPMC and Maxim had no special relationship with plaintiffs.  However, there was a special relationship between UPMC and Maxim and the drug-addicted employee.  That special relationship imposed a responsibility upon the employer to report the employee to the criminal authorities.  UPMC banned the employee from its facilities, and informed Maxim of his conduct.  This shows they understood the danger.  Plaintiffs pled sufficient facts that could support an imposition of common-law duty of care both upon UPMC and Maxim to report the employee’s criminal conduct to the DEA and/or other law enforcements agencies for prosecution.  However, the court would not imposed negligence per se.  The Superior Court agreed with the trial court that there was no indication that the reporting requirement in the law was intended to protect a particular group to which plaintiffs belonged.  There was a dissent by Judge Jenkins on that point.  Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104 (Pa. Super. 2016).

Birth injury lawsuit wins $53 million verdict

In another state, a woman and her son recently won a multi-million dollar verdict in a medical malpractice case that they have been fighting for several years. In the end, it was decided that the hospital staff was negligent during the labor and delivery of the child which led to a serious birth injury. As numerous parents in Pennsylvania may be in similar situations as this family, this case certainly is one that may be of interest.

According to reports, a case was filed in 2013 against a noted medical center in another state by a woman and her now 12-year-old son, asserting that the actions of medical staff contributed to the child’s cerebral palsy diagnosis. The plaintiff alleges that a failure to properly monitor her labor, see in a timely manner that the baby was in distress and promptly perform a cesearan section resulted in the child suffering brain damage. The young boy has since, and will for the rest of his life, require full-time care.

The hospital — UChicago Medical Center — is, of course, planning to fight this verdict. A spokeswoman for the facility denies any wrongdoing and claims that normal oxygen levels were detected when the child was born. The hospital believes that an infection that occurred before birth is the real cause of the cerebral palsy.

When a infant suffers a birth injury during or after labor and delivery, it is perfectly normal for the child’s parents to consider how the actions of medical providers may have contributed to the injury. Unfortunately, medical negligence is sometimes responsible. If medical malpractice is suspected, parents in Pennsylvania may pursue legal actions in civil court in an effort to seek compensation for the resulting damages.

Source: beckershospitalreview.com, “UChicago Medical Center to pay $53M in birth injury lawsuit“, Heather Punke, July 1, 2016

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS-STILLBORN BIRTH

Page v. Moses Taylor Hospital, Civil No. 11 CV 1402 (C.P. Lackawanna May 18, 2016) Nealon, J.  Plaintiff Jo Ann Page instituted this malpractice action against Defendants alleging a failure to properly diagnoses and treat her preeclampsia during her pregnancy with twins, as a result of which she suffered an eclamptic seizure that caused the stillbirth of the twins due to placental abruption attributable to Page’s seizure and her assoiated hypovolemic shock, tachycardia and massive hemorrhaging.  Defendants seek to bar Page from introducing evidence of any emotional or psychological harm she suffered as a result of the stillbirth of the twins.  However, as Page has noted in her responsive briefs, her NIED claim is viable under the “physical impact” rule since giving birth to a stillborn child physically impacts the mother.  Irrespective ow whether Page can prove her conscious and contemporaneous observance of a discrete and identifiable traumatic event, so as to state a NIED cause of action under the “bystander” rule, she may proceed with her NIED claim pursuant to the “physical impact” rule.  Provided that Page presents proof that she has experienced some physical manifestation of her emotional distress, such as persistent depression, nausea, sleep disturbance, nightmares, flashbacks, breathing difficulties or hysterical attacks, she may recover damages for NIED.  Even assuming arguendo that Page is unable to sustain a cognizable claim for NIED at trial, it would not foreclose her from seeking to recover damages for the emotional distress and mental anguish that she has suffered from the stillbirth of her twins.  Therefore, even if Page’s NIED evidence proves to be insufficient at trial, she may nonetheless seek to recovery for the “emotional and psychological loss” that she has suffered due to the stillbirth of the twins.

Pennsylvania medical malpractice: Deaths caused by medical errors

A recent report suggests that medical errors are a leading cause of death in the United States. In fact, medical errors rank just behind heart disease and cancer, causing an average of 250,000 deaths every single year. With a number this significant, this issue of medical malpractice is likely to affect quite a few families in Pennsylvania.

When people die as a result of medical mistakes, the entire system is investigated — from the staff allegedly involved, all the way up to facility administration. Was the death the result of policy problems or staff negligence? These and other questions will need to be answered.

It is believed that medical errors are often the result of lapses in judgment, mistaken diagnoses, preventable complications or system failures. As such, at least in hospital settings, protocols are put in place and adjusted as needed to help prevent these issues. However, despite changes and improvements, every year approximately 1 percent of patients admitted to hospitals in the United States are the victims of medical mistakes that have proved fatal.

Those residing in Pennsylvania who have lost loved ones as the result of medical errors may have legal recourse. Medical malpractice claims may be filed against all those believed responsible, including medical providers, staff members and the facility of care. Claims of medical negligence can take time to investigate; however, if legal actions are successful, surviving family members may be awarded was is deemed fair and full compensation for their losses — either through litigation in civil court or through out-of-court settlements.

MEDICAL MALPRACTICE-DOCTORS CREDENTIALS AND PRIVILEGES

Vaccaro v. Scranton Quincy Hospital Company, No. 14 CV 7675 (C.P. Lackawanna Dec. 8, 2015) Nealon, J.  Plaintiffs filed a discovery appeal from a master denying their motion seeking to compel from defendant-hospital the following:  (1) malpractice history records that the hospital obtained relative to defendant obstetrician in connection with the obstetrician’s initial application for clinical privileges; (2) biannual “ongoing professional practice evaluation” report prepared by the hospital with respect to defendant-physician; and (3) two warning letters that the hospital’s chief medical officer and medical records consultant forwarded to the defendant obstetrician with respect to delinquent medical records.  The hospital claims protection under the Pennsylvania Peer Review Protection Act, 63 P.S. §§ 425.1-425.4.  The malpractice history and the administrative admonitions concerning records do not involve the disclosure of peer review information.  However, the biennial professional practice evaluations were submitted to the hospital’s quality management department and are immune from discovery under the PRPA.  Accordingly, the hospital was directed to produce the requested malpractice claims information and warning letters, but they are permitted to withhold from discovery the “ongoing professional practice evaluation” reports.

PHARMACEUTICALS-PAXIL/ZOLOFT-EXPERT WITNESSES-METHODOLOGY-ADMISSIBILITY OF SCIENTIFIC OPINION TESTIMONY

Porter v. Smithkline Beecham, No. 03275 Sept. term 2007 (C.P. Philadelphia February 10, 2016) Bernstein, J.  Minor child was born with giant omphalocele.  This is an abdominal wall birth defect.  Mother took antidepressants Paxil and Zoloft for depression.  Defendants claimed that plaintiff experts failed to meet the consensus methodological requirements for admissibility of scientific opinion testimony and should be precluded at trial.  The court noted that pursuant to the Frye standard, the Court need only determine whether an appropriate scientific community considers the methodology used to reach an opinion is scientifically sound.  To be permissible for jury evaluation, the methodology employed by the expert must be scientifically acceptable.  The trial court faces two primary questions in any Frye analysis:  (1) is the data and other underlying information relied upon the type of data proper relied upon in a scientific discipline appropriate to the question presented for jury determination? And; (2) was this proper data analyzed in accord with a scientific discipline appropriate to the question presented for jury determination?  Proper epidemiological methodology begins with published results which demonstrate an association between a drug and an unfortunate effect.  Once association has been found, a judgment as to whether a real causal relationship between exposure to a drug and a particular birth defect exists must be made.  The judgment requires a critical analysis of the relevant literature applying proper epidemiologic principles and methods.  Scientific studies must be analyzed for the possibility that the apparent associations were the result of chance, confounding and bias.  It must also be considered whether the results have been replicated.  A class effect cannot be assumed.  The causation conclusion must be drug specific.  Different birth defects should not be grouped together unless they are a part of the same body system, share a common pathogenesis or there is a valid justification or necessity for an association and chance, bias, and confounding have been eliminated.  Even then, when generally accepted proper epidemiological methodology has found causation the Bradford-Hill Criteria must be considered.  Plaintiff’s expert effectively relied on only one study for causation.  Reliance on this one study was questionable because of its limitations.  Studies that rely on a very small number of cases can present a random statistically unstable clustering pattern that may not replicate any pattern in a larger population.  The authors of the study relied upon in this case were unable to rule out confounding or chance.  The results had never been replicated.  Women who are depressed and take SSRIs have been more likely to smoke, be older, have less education, have poor nutrition, use other drugs, and have chronic diseases such as diabetes and hypertension than women who do not use SSRIs.  These factors have been linked to an increased risk of birth defects.  Plaintiff’s expert does not address this confounding.  There is no study which replicates or supports plaintiff’s expert’s conclusions on causation.  Without significant independent scientific justification it is contrary to generally accepted methodology to assume the existence of a class effect.  Generally accepted causation criteria must be based on the data applicable to the specific birth defect at issue.  Plaintiff’s expert improperly lumped together disparate birth defects.  Plaintiff’s expert did not explain why or how any of the factors he cited supported his opinion of biological plausibility.  The temporal relationship between the exposure and disease is also a factor which must be considered in assessing specific causation.  For an exposure to be the cause of a disease the exposure must have occurred prior to the disease.  Clinical differential diagnosis is a generally accepted methodology.  Plaintiff’s expert was not a clinical and did not profess to perform a clinical differential diagnosis of cause.  Plaintiff’s expert did not discuss and failed to rule out maternal risk factors such as age, obesity, cigarette smoking, alcohol, maternal stress, and family history.  The court went further to state that animal studies are of limited utility in determining teratogenicity where a significant body of human exposure studies exists in the published medical literature.  This related to plaintiff’s other expert.  Animal studies can be instructive in determining teratogenicity of a pharmaceutical and in the absence of human studies may become the basis for a valid extrapolated scientific opinion.  Neither of plaintiff’s experts, in analyzing SSRIs, exclude the pharmaceutical Paxil.  Paxil is a causal factor in birth defects.  Plaintiff expert’s opinion did not contain any adequate discussion of the differences between Paxil land Zoloft with respect to causation of birth defects.  Plaintiff’s motion for continuance or discontinuance without prejudice was proper and the case was dismissed.

Surgical malpractice suit filed against Yale doctors

A woman in another state has filed legal claims against Yale doctors for an allegedly botched surgery. The surgical malpractice claim asserts that the wrong body part was removed during the procedure and that the doctors lied about the mistake. Whether in Pennsylvania or elsewhere, surgical errors happen, and when they do — just as this woman is doing — victims may take legal actions against those believed responsible.

According to a recent report, a 60-year-old woman required a rib removal due a potentially cancerous lesion. After surgery, the patient experienced quite a bit of pain. An X-ray was performed after her complaints of pain, which is when it was allegedly discovered that the wrong rib was removed. A second surgery was required to remove the right rib.

One of the surgeons from the first surgery claims that the right rib was removed, but that not enough was taken out, causing the patient’s pain. This same doctor was part of the surgical team that performed the second surgery, despite the patient’s request that he no longer be apart of her treatment. The plaintiff and her legal counsel say that no apology has been issued for the error.

Surgical errors are fairly common, unfortunately. When mistakes are made in the operating room, it is up to medical staff to quickly acknowledge the problem and take corrective actions. That does not seem to be what happened in this particular case, though, and litigation is still pending. Those in Pennsylvania who feel that they or loved ones have been the victims of surgical malpractice can seek compensation through legal means. With the assistance, fair and full compensation may be achieved through litigation or out-of-court settlements.

Source: christianpost.com, “Yale Doctors Accused of Removing ‘Wrong Rib’ and Covering Up Medical Mistake“, Marvie Balisan, March 28, 2016

Pennsylvania medical malpractice: Hospital acquired infections

It is believed that approximately one out of every 25 patients will acquire an infection while staying in a hospital. Sadly, it has been reported that these infections are often resistant to medications and other known treatment methods. Millions of individuals are affected by these infections every year, many of whom may reside in Pennsylvania. Those who are, or — in events of fatality — their surviving family members, may be entitled to seek compensation for any damages by pursuing medical malpractice claims in civil court.

According to the Centers For Disease Control and Prevention (CDC), it is estimated that every year 2 million people in the United States are infected with some sort of super bug during hospital stays. Approximately 23,000 of these individuals die as a result. Of the 18 known super bugs, six of them are believed to be resistant to antibiotics.

Hospital acquired infections can occur in a number of ways. These include the failure of medical providers to wash hands between patients, improper sterilization of equipment and rooms, and failure to abide by isolation guidelines – among various others. While facilities continue to implement new regulations to help reduce hospital acquired infections, things do happen and the patients and their family members ultimately suffer the consequences.

Hospital acquired infections are a serious concern. Those in Pennsylvania who believe that they or their loved ones have become sick or lost their lives due to preventable infections which developed during hospital stays may have legal recourse. An experienced medical malpractice attorney can review the facts of one’s case and pursue legal actions, if appropriate, in an effort to seek fair and full compensation for one’s losses.

Source: medicaldaily.com, “CDC Reports 1 in 7 Hospital-Acquired Infections Now Caused By Antibiotic-Resistant Super Bugs“, Susan Scutti, March 3, 2016

Deni v. Banka, MD, No. 0327 (C.P. Phila. October 22, 2015)

Massiah-Jackson, J., accord the opinion in Mathai v. Banka, No. 2814 (C.P. Phila. October 22, 2015) Massiah-Jackson, J.  Motion for partial judgment on the pleadings is granted, and all claims relating to conduct prior to December 2, 2006, are dismissed with prejudice.  Pennsylvania Hospital, on April 2, 2013, released a statement to the public and to patients of Dr. Banka concerning medical care the doctor offered.  As a result of this, Dr. Banka’s patients learned for the first time that unnecessary and unwarranted invasive procedures and implantations may have been performed on them.  Several civil actions were filed against Dr. Banka and Penn Medicine.  Defendants raised the MCARE Act’s 7-year statute of repose.  The plaintiffs challenged whether the March 2002 statute of repose was applicable.  All parties acknowledged that the 7-year statute of repose was available, and the court merely calculated the date.  The plaintiffs also argued that claims including battery, fraud, misrepresentation and unjust enrichment and/or punitive damages are not barred by the MCARE statute of repose.  The court did not agree.  The court found that all of those behaviors involved the exercise of medical skills associated with specialized training.  The court found that the MCARE statute of repose effective date was March 20, 2002, and is applicable.  The 7-year deadline was calculated; Deni’s civil action was commenced on December 2, 2013, and was beyond the repose period.

Green v. Pennsylvania Hospital, 123 A.3d 310 (Pa. 2015)

Ronald Green, Executor of the Estate of Joseph Fusco, appealed a Superior Court Order affirming the trial court’s grant of a nonsuit in favor of defendant hospital and doctors.  The Supreme Court reversed and remanded for further proceedings.  Decedent arrived at the hospital complaining of short breath, rapid breathing and wheezing.  He was admitted to the intensive care unit, given medication, and wound up on a ventilator.  He had a number of serious preexisting conditions.  On January 9, 2009, in an attempt to wean decedent from the ventilator, a physician performed a tracheotomy.  A tracheotomy cuff was placed around the tube and inflated.  Blood was coming from the tracheotomy site.  The tracheotomy tube had become blocked, depriving decedent of an airway.  Medical personnel attempted to force air through an improperly placed tube and the trachea collapsed.  This was during an attempt to provide an airway.  A negligence action ensued.

 

A plaintiff may pursue a negligence action on a direct liability or vicarious liability theory.  In 2002, the Pennsylvania legislature enacted the MCARE Act, codifying the vicarious liability of hospitals under the doctrine of ostensible agency.  Here, the lower court found that the doctor had not been proven to be an ostensible agent of the hospital.  The court ruled that the requirement for establishing ostensible agency under Section 1303.516(a)(1) of the MCARE Act, where the evidence must show that a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents, is substantially the same as the requirement for establishing ostensible agency under Section 429 of the Restatement (Second) of Torts, where the recipient of services must demonstrate a reasonable belief that the services were rendered by the employer or by his servants.  At 322.

 

The record presented sufficient evidence to create a jury question concerning whether a reasonably prudent person in decedent’s position would be justified in the belief that the doctor was acting as the hospital’s agent when she rendered care to the decedent.  It is undisputed that decedent became a patient of the hospital through the emergency room.  The doctor in question arrived in decedent’s room 10 minutes after he did.  The doctor was the primary care taker for the patient with respect to the tracheotomy.  “In this Court’s view, when a hospital patient experiences an acute medical emergency, such as that experienced by Decedent in the instant case, and an attending nurse or other medical staff issues an emergency request or page for additional help, it is more than reasonable for the patient, who is in the throes of medical distress, to believe that such emergency care is being rendered by the hospital or  its agents.”  At 323.  Hence, the nonsuit was erroneous.

 

Another question raised in this case is whether a nurse could give causation testimony against another nurse who helped in the procedure.  The MCARE Act does not mandate the admission of a given expert’s testimony.  An abuse of discretion standard will apply.  In this case the trial court determined that allowing the nurse to offer causation testimony as to another nurse, might confuse the jury.  The trial court did not abuse its discretion in this respect.  Thus, based on the expert report, the proffered expert causation testimony of the nurse was based on a course of conduct by nurses and physicians and therefore had the potential to confuse the jury.

Man files legal claim after alleged surgical error

Whether residing in Pennsylvania or elsewhere, medical malpractice is a major concern. The number of these cases is declining, thankfully, but for those who have been injured because of the negligence of medical providers, the damages sustained can be extreme. A man in another state is currently fighting for compensation following what he claims to have been a botched medical procedure. He says that the alleged surgical error has caused him to suffer emotionally, physically and financially.

Legal claims were recently filed in a Midwest court by a gentleman who claims his surgeon made a mistake during a routine procedure and failed to immediately correct the problem. According to the plaintiff, he went in for a gallbladder removal back in September. During the surgery, the doctor allegedly cut the common bile duct which, if left unrepaired, can cause serious or even fatal injuries.

The patient claims that the bile duct was not repaired immediately, resulting in unnecessary pain and suffering and the need for further surgeries in order to correct the issue. He is seeking over $50,000 in damages, plus litigation costs. At this time, it is unknown if the physician or hospital has responded to this individual’s claim.

A gallbladder removal is generally considered a routine and simple procedure, but no surgical treatment is without risk. In fact, bile duct injuries are fairly common during this type of surgery, as bleeding, swelling and/or scarring can mask the duct and make it difficult for a surgeon to avoid. When a surgical error occurs and is not immediately addressed, the patient is the one who suffers. He or she would be well within his or her rights to take legal action against the party or parties deemed responsible. Pennsylvania residents who choose to take this step may be able to achieve fair and full compensation for their losses through litigation or out of court settlements.

Source: Orland Park, Il Patch, “Man Sues Orland Park Surgeon for Medical Malpractice“, Brendan Krisel, Dec. 31, 2015

ARBITRATION-MEDICAL MALPRACTICE

Wert v. Manor Care of Carlisle, PA, LLC, 124 A.3d 1248 (Pa. 2015). This case involved mandatory arbitration of a nursing home dispute.  It had been previously ruled that NAF Designation voided an identical arbitration agreement.  Pursuant to the reasoning of prior decisions and the majority of other jurisdictions, we find that post-consent decree, Section 5 of the FAA, cannot preserve NAF-incorporated arbitration agreements unless the parties made the NAF’s availability nonessential by specifically varying the terms of its procedure. Regardless of whether Section five may apply where there is a lapse in the administrator, by its own rules, the NAF must administer its code unless the parties agree to the contrary.Regardless of whether Section five may apply where there is a lapse in the administrator, by its own rules, the NAF must administer its code unless the parties agree to the contrary.  The parties here agreed that any disputes “shall be resolved exclusively by binding arbitration to be conducted . . . in accordance with the [NAF] Code of Procedure, which is hereby incorporated into this Agreement[.]” R. 348a (emphasis added). We therefore find the provision integral and non-severable. Doing otherwise would require this Court to rewrite the Agreement.  Underlying FAA policy, as interpreted by the Supreme Court in Marmet, does not mandate a different result because our conclusion is based on settled Pennsylvania contract law principles that stand independent of arbitration.

Bock v. Novartis, No. 2:10-cv-1338 (WD Pa. Oct. 7, 2015) Hornak, J.

Personal representative of estate sued pharmaceutical company, claiming that the patient developed a painful and permanently disfiguring condition known as osteonecrosis of the jaw as a result of using Zometa, a prescription medication designed and manufactured by Novartis for the purpose of managing metastatic bone cancer.  Defendant’s motion to dismiss was granted.  Plaintiff claimed negligent failure to warn.  The sole issue raised in Novartis’ summary judgment motion was whether the patient’s injuries were proximately caused by the alleged inadequacy of the pharmaceutical warnings.  In this case, the patient’s physicians were already aware of the risk of the side effect of the prescribed drug.  Both physicians testified they would have discussed the risk with the patient, allowing him to make an informed decision as to the treatment.  The physicians indicated they would still prescribe the drug if presented with a patient such as plaintiff’s decedent because they thought that the risk of the drug was outweighed by its benefits.

Pennsylvania man wins medical malpractice case

A Pennsylvania man was recently awarded a significant sum in a jury trial against the doctors he claims are responsible for his paralysis. The medical malpractice case wrapped up after a quick two week trial in October. Both the victim and his wife were granted compensation for their losses.

According to a report, in 2012, a 50-year-old male was injured after being struck by a 500-pound tree while at work. The man, a logger, was taken to a hospital in Titusville, where a spinal fracture went undetected due to a lack of testing. This individual was sent home after spending three days in the hospital. Two days after his release, he was paralyzed from his chest down and was flown to a medical center in Pittsburgh for treatment. Unfortunately, the damage had already been done.

A surgeon and other witnesses testified on behalf of the victim, claiming the man would be walking had he been properly diagnosed. This, the plaintiff believes, could have been achieved had his treating physicians performed a CT scan rather than taking X-rays. The victim and his wife received a monetary judgment of over $2 million to provide for past and future losses and their pain and suffering.

Pennsylvania residents who have suffered injuries due to issues with their medical care may, just like this gentleman, have legal recourse. Medical malpractice claims may be filed against treating physicians, support staff and even facilities of care if any wrongdoing is suspected. If navigated successfully, victims and their loved ones may be awarded monetary relief at the end of jury trials or through negotiations and settlements.

Source: lancasteronline.com, “Jury awards paralyzed logger $2.2M in malpractice suit“, Oct. 26, 2015

v. Rackish, et al., No. 13-01,871 (C.P. Lycoming Aug. 20, 2015)

Gray, J.  Defendants, on a motion in limine, contend that plaintiff’s expert opinions and testimony about the use and failure to remove internal fixation used in the care of the patient, Mr. Palmer, are beyond the scope of the complaint and not relevant to the issues of negligence that were pled.  Plaintiff made an oral motion to amend the complaint specifically to include defendant’s negligence for using and failing to remove internal fixation in the care of Mr. Palmer.  Even if the use and failure to remove internal fixation were beyond the scope of the complaint, the court found it appropriate to grant plaintiff’s motion to amend because the use and failure to remove the internal fixation is an amplification of the negligence pled and because there is no prejudice to defendants.  The question of negligence posed in the complaint was whether Dr. Rackish complied with the standard of care in his initial treatment of Mr. Palmer’s open fracture that occurred in the Susquehanna River, given the heightened risk for infection.  The topic was discussed in expert reports at the pretrial, and argument in other motions.  The topic was the subject of depositions of the experts, including Dr. Rackish.

MEDICAL MALPRACTICE-PEER REVIEW

Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015).  Two discovery orders are appealed by UPMC.  The two privileges under consideration are the Peer Review Protection Act and the attorney-client privilege.  This case involved a transplant where the donor had Hepatitis C.  At some time after the surgery, UPMC personnel discovered that they had transplanted a Hepatitis C infected kidney into Mr. Yocabet.  The CMS/DOH investigated to determine if UPMC’s kidney transplant program was in compliance with requirements of the Centers for Medicare and Medicaid Services and was thus eligible to continue to participate in the Medicare/Medicaid program.  The Department of Health personnel met with the hospital’s administrators and transplant program staff.  The confidentiality provisions of the Peer Review Act do not apply to the CMS/DOH investigation because the Department of Health is not a professional health care provider and did not conduct peer review.  Since the Department of Health and the Centers for Medicare and Medicaid Services are not professional health care providers, the Department of Health did not engage in peer review during the CMS/DOH investigation.  An entity that is not itself a professional health care provider does not become one merely because it hires a professional health care provider to conduct its investigation.  The Right-to-Know Law is irrelevant.  A review committee must be “engaging in peer review,” and peer review is a “procedure for evaluation by professional health care providers” of services performed by other professional health care providers.  We reject UPMC’s assertion that a record or document automatically is covered by the peer review privilege merely because it was forwarded to a peer review committee.  With respect to interrogatories inquiring about hospital committee meetings, the court ordered an in camera investigation to ascertain if the attorney-client privilege applies.  The attorney-client privilege can apply to a meeting of the governing board of an organization with its executive vice-president and the attorney-client privilege potentially applies to information requested in these interrogatories.  A board of directors of a professional health care provider can conduct peer review.  We reject the postulation that a corporate entity can obtain legal advice only when one of its high-ranking officials meets privately with counsel for advice on behalf of the corporation.  The board of directors of a corporation, in addition to its officers, can act on its behalf for purposes of application of the attorney-client privilege.  The party invoking a privilege must initially set forth facts showing that the privilege has been properly invoked before the burden shifts to the party asking for discovery to set forth facts showing that the disclosure will not violate the attorney-client privilege.

MEDICAL MALPRACTICE-DISCOVERY-PHYSICIAN MEDICAL RECORDS

Ashok Padhiar, MD, appealed from an order granting motion to compel discovery.  The Superior Court reversed and remanded for further proceedings.  Dr. Padhiar operated on plaintiff patient for gangrene.  The doctor had been arrested at least 8 times for driving under the influence in Illinois, Michigan, Ohio and Pennsylvania.  Because of his addiction and subsequent consequences, at least one state revoked his medical license.  At the time, Pennsylvania had not revoked the doctor’s license.  The doctor operated without performing a physical examination.  During or after the amputation, the patient suffered a cardiac arrest and eventually died.  The estate sought records from the doctor relating to drug and alcohol treatment.  The trial court granted the motion to compel the information.  If the information sought contains confidential communications plaintiff must satisfy two requirements of the law.  At issue is the Public Health Services Act, 42 U.S.C. § 290ee-3.  Regulations provided for under the Act are found at 42 C.F.R. § 2.63(a)(3).  The court must find that good cause exists to make the records available.  That means that other ways of obtaining the information are not available or not effective and the public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.  Further, the court may authorize release of records if the disclosure is in connection with  litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.  In the Gallo case, depositions had not yet taken place.  Therefore Dr. Padhiar had not had the opportunity to offer testimony.  In this case, the doctor had not waived his privilege by placing confidential communications at issue in a complaint since he did not file the complaint and rather was the defendant.  The law is litigation-specific, and the fact that the doctor allegedly waived his privilege by disclosing the contents of his treatment records to the employer health care system, the Pennsylvania Medical Licensure Board or the county court is not relevant.  Those prior disclosures have no effect on the privilege asserted by Dr. Padhiar in the Gallo litigation.  The doctor had not “opened the door” in any way.  Plaintiff mostly relied upon 71 P.S. § 1690.108(c).  However, that section does not include a good cause provision.  Accordingly, the Superior Court, in an opinion difficult to justify, held that the trial court erred in determining that the good cause exception of the federal act applies.  The records sought by Gallo are protected by the Act, without exception, subject to disclosure by Dr. Padhiar.

MEDICAL MALPRATICE-PHARMACEUTICALS-BIRTH DEFECTS

Gurley v. Janssen Pharmaceuticals, Inc., 113 A.3d 283 (Pa. Super. 2015).  Judgment in favor of appellees following a jury trial against Janssen Pharmaceuticals, Inc., in the amount of a total verdict of $11,655,294.62, which included delay damages.  On March 27, 2006, Dr. Warner prescribed Topamax for Haley Powell to control her headaches and seizures.  Neither the patient nor the doctor knew that the use of the drug during pregnancy could possibly cause birth defects such as cleft lip, cleft palate, or oral palate.  The drug was categorized by the FDA as a Pregnancy Category C drug.  The child was born with birth defects, and litigation ensued on a failure to warn claim.  The manufacturer claimed preemption based on the argument that the patient was attempting to change the pregnancy category from C to D, a change that was within the sole control of the FDA.  The Superior Court found that this was a red herring.  The trial court entered an order specifically prohibiting patient from presenting any argument or evidence that the manufacturer could have unilaterally changed the Topamax Pregnancy Category without FDA-approval.  This ruling was adhered to.

MEDICAL MALPRACTICE-PODIATRIST

Krepps v. Snyder, 112 A.3d 1246 (Pa. Super. 2015).  Claim was of negligence in following appropriate amputation prevention procedures for diabetic patients, eventually resulting in the below-the-knee amputation of the patient’s leg.  Numerous discovery issues arose, including issues related to Requests for Admissions.  Judgment was entered in favor of the podiatrist, and the patient appealed.  The Superior Court affirmed the judgment.

 

The Superior Court concluded that the trial court did not err when it applied Rule 126 to override Rule 4014(b)’s 30-day response time.  The court noted with disfavor the cavalier attitude towards the rules of discovery displayed by podiatrist lawyers throughout the litigation.  The responses to the Requests for Admissions were filed 18 months after the start of the trial bear less significant time for the patient’s lawyers to conduct additional discovery if they felt the same was necessary after receiving the podiatrist’s responses.  Also, podiatrist counsel waited too long in the trial process to request admission of the exhibit in question addressing the Requests for Admissions.  In addition, the jury was not compelled to accept the facts as true but rather to employ their discretion to weigh the testimony.

 

The court ruled that the trial court properly utilized a merit-based approach to litigation.  The purpose of Rule 4014 is to clarify the issues and streamline the process and authenticate uncontroverted evidence and should not be applied solely as a punitive measure when, as podiatrist lawyers here, eventually complied with the discovery request.  There was no showing of prejudice.

 

The objection to the two-schools-of-thought charge was not properly preserved by the patient’s counsel.

 

The patient’s attorneys on appeal argued that the jury was not instructed to view the evidence objectively.  However, the Superior Court found that the charge was proper.  The court has naturally relied upon the SJIC instruction.  A party is not entitled to have any particular form of instruction given.  It is merely sufficient if the trial court clearly and accurately explains the relevant law and properly covers the requested points for charge.

 

The parties’ experts presented conflicting views of the standard of care under the circumstances presented.  Because of differences in testimony, summary judgment would not have been appropriate for the patient.

Venosh v. Henzes, PICS Case No. 14-1553 (C.P. Lackawanna Sept. 4, 2014) Case Summary

The trial court granted an interlocutory appeal on the question as to whether plaintiff Ann Marie Venosh was entitled to receive information from subpoenas served upon Blue Cross and First Priority seeking copies of “quality of care” reviews and investigations that Blue Cross had conducted with regard to the medical treatment that the named defendants provided to Venosh.  See Venosh v. Henzes, 2014 WL 3886854, at *4 (Lacka. Co. 2014).  Blue Cross objected claiming protection under the Peer Review Protection Act.  By Memorandum and Order, the trial court held on August 8, 2014, that the discovery protections afforded by the PRPA apply only to peer reviews which are initiated and completed by organizations or individuals that provide health care services, as opposed to those entities that sell health insurance.  Since Blue Cross is a “hospital plan corporation” that provides hospitalization and related health insurance benefits to plan subscribers for a fee, and is neither a direct health care practitioner nor the administrator or operator of a health care facility, the court concluded that its “quality of care” reviews including its external peer reviews by third party specialists are not immune from discovery under the PRPA.

Consumer Notification Act No. 2014-169

The Hospital Observation Status Consumer Notification Act requires that a hospital provide notice to a patient or a patient’s designee of the patient’s outpatient status, and information that provides a general description of outpatient observation satus.  Conditions are set for when the Act applies.  A patient note as required shall include a statement that outpatient observation status may impact coverage determinations.  Final decisions related to outpatient observation status can be made after a patient is no longer a patient at the hospital and that a patient should contact Medicare, Medicaid, or other insurance provider if there are specific questions.

Medical Diagnosis and Liability Insurance, Act No. 2014-134

An acupuncturist may treat a person’s condition beyond 60 days if the person obtained a diagnosis of the treating condition from a liecensed physician, dentist or podiatrist.

These sections do not apply if a peson does not present any symptoms of the condition.

The minimum level of liability insurance coverage that must be carried by the acupuncturist is $1 million per occurrence or claims made.

A licensee shall notify the board within 30 days of the licensee’s faliure to be covered by the required insurance.  Failure to notify shall result in automatic suspension.

An acupuncturist may self-insure, purchase personal professional liability insurance or have the insurance provided by employer.

Maya v. Johnson & Johnson, 97 A.3d 1203 (Pa. Super. 2014) Summary

Maya v. Johnson & Johnson, 97 A.3d 1203 (Pa. Super. 2014) was an appeal by McNeil-PPC, Inc., from a $10 million verdict plus statutory and post-judgment interest in a pharmaceutical failure to warn case. A child was given over-the-counter Children’s Motrin, a medication manufactured by defendant McNeil. The drug was given for seizure. The child developed toxic epidermal necrolysis (TEN), described as an especially severe form of Stevens Johnson Syndrome (SJS), a rare but life-threatening disease that causes severe blistering and sloughing off of skin, together with serious damage to the mouth, eyes, throat and esophagus. The court held that the fact that the label which did not mention skin reddening, rash or blisters was not non-defective just because such warnings were not required by the FDA. The court cited, among others, Wyeth v. Levine, 555 U.S. 555, 570-571 (2009). The court also rejected Neil’s contention that the plaintiffs failed to establish causation, i.e., that adding the warnings would have prevented or mitigated the child’s injuries. The learned intermediary doctrine did not apply because Children’s Motrin is an over-the-counter drug. The court rejected a number of other evidentiary challenges, including the failure of the court to give a heeding presumption instruction to the jury. The court noted that neither side objected to the omission of the instruction, and besides, McNeil still could have argued to the jury that plaintiff’s failure to prove an adequate warning would have prevented the child from receiving additional doses of Children’s Motrin after she developed the rash and blisters. The court said that the Standard Jury Instruction Committee charge on Concurring Causes was applicable to defective products of two or more manufacturers, Pennsylvania Suggested Standard Jury Instruction SSJI Civ. 3.26 Concurrent Causes (Subcommittee Draft 1978).

Case Summary – Pollina v. Dishong, 98 A.3d 613 (Pa. Super. 2014)

An investigator can be sued for negligence when he is not operating in the course of any impending investigation.  Here, apparently the investigator formulated opinions for BPI on his own and was not working for any government agency and therefore he could be sued by the doctor investigated for negligence.

Taransky v. Secretary of Health and Human Services, 760 F.3d 307 (3d Cir. 2014)

Taransky was a plaintiff who recovered a tort settlement and was found obligated to reimburse Medicare as a Secondary Payer under the Act (MSP Act), 42 U.S.C. § 1395y(b)(2). The reimbursement provision of the MSP Act provides that a primary plan, which should have made payment for medical expenses, must reimburse the appropriate Trust Fund for any payment made by the Secretary if it is demonstrated that such a primary plan has or had a responsibility to make payment with respect to the services.   An amendment to the MSP Act broadened the definition of “primary plan” to include tortfeasors. The term “primary plan” therefore was intended to include a tortfeasor’s insurance policy. The Third Circuit held that the fact of settlement alone, if it releases a tortfeasor from claim for medical expenses, is sufficient to demonstrate the beneficiary’s obligation to reimburse Medicare. Crucial to this decision was that New Jersey law has not considered whether its subrogation statute operates to prevent a plaintiff from recovering Medicare payments in a tort suit. To the extent that Medicare payments are not recoverable, there would not be an obligation of reimbursement.

Florida Jury Awards $26 Million in Vaginal Mesh Case

A federal jury in Florida found that Defendant Boston Scientific should pay a total of $26.7 million to four women who suffered injuries due to complications with their Pinnace vaginal mesh.  The verdict is the first to come from two consolidated trials that began earlier this month, with a separate case continuing in West Virginia involving four other women who experienced problems with Boston Scientific’s Obtryx mesh.

 

The Miami trial was a combined trial involving four Boston Scientific Pinnacle mesh lawsuits. During eight days of testimony, the plaintiffs presented evidence to the jury that suggested Boston Scientific employees expressed concerns about the safety of the Pinnacle mesh before it was released, calling for more testing to be completed. However, Boston Scientific allegedly ignored the concerns and promoted the product for use in women without warning about the risk that the mesh may erode through the vagina, cause infections or other severe complications.

 

The two consolidated Boston Scientific trials in Florida and West Virginia are part of a “bellwether” program in the federal court system, where more than 70,000 similar lawsuits are pending against various different manufacturers, also including C.R. Bard, Johnson & Johnson’s Ethicon division, American Medical Systems (AMS), Neomedic and Cook Medical.

In the federal court system, the claims have been consolidated before U.S. District Judge Joseph R. Goodwin as part of an MDL, or Multidistrict Litigation, which is centralized in the Southern District of West Virginia for coordinated discovery and pretrial proceedings. Judge Goodwin is overseeing claims filed against other manufacturers as well.

 

If you suffered a severe injury from vaginal mesh, contact Cliff Rieders, Esq. of the Rieders Travis firm to see if you have a claim that can be filed.

Wayne M. Chiurazzi Law v. MRO Corp., 97 A.3d 275 (Pa. 2014)

Wayne M. Chiurazzi Law, Inc. v. MRO Corp., 97 A.3d 275 (Pa. 2014) interpreted the Medical Records Act, 42 Pa. C.S. §§ 6151-6160 requiring reproduction of medical records for patients and their representatives at their estimated actual and reasonable expense of reproducing requested charge for records. The court held that the legislative scheme establishes that the expenses chargeable for medical records are the reproducers actual and reasonable expenses, but subject to a statutory cap. The language and structure of the law plainly suggests that the pricing schedule serves as a cap on the actual and reasonable expenses of reproduction. The fact that the records were requested under § 6155, governing rights of patients, rather than by subpoena under § 6152(a) does not change the analysis. The fact that § 6152(a)(1) speaks of providing the “estimated” actual and reasonable expenses of reproducing the records, rather than an exact figure, does not support the notion that a uniform rate was intended. This would read too much into the statute. The court refused to pass on the issue as to whether voluntary payment constituted a defense and remanded the matter to the Superior Court in that connection.

Settlement reached in out-of-state birth injury case

Bringing a new life into the world should be a time of joy. Sadly, for some families, medical mistakes made during delivery or shortly after birth can hamper the elation of welcoming a brand new baby. A birth injury can lead to lifelong developmental problems for the child, that come at a significant financial and emotional cost to parents. Some parents in Pennsylvania may know this struggle and heartache all too well.

For a family in another state, a settlement was recently reached over a malpractice complaint they filed against a hospital regarding a birth related injury. According to the civil complaint, filed on behalf of a 4-year-old girl, shortly after birth the baby required treatment for jaundice. An IV line was inserted for the procedure. However, it is believed that air was in the tubing, which supposedly led to a lack of blood flow and oxygen to her brain. The lawsuit alleges that this specific procedure resulted in a serious brain injury.

This case was set to go to trial Aug. 4, but that same day, both parties agreed to settlement terms. Details of the settlement have not been made public. The hospital did admit that negligence did play a part and accepted responsibility for the injuries.

Parents in Pennsylvania who believe their child has suffered from a birth injury are certainly entitled to question the care their baby received. If negligence is thought to be the cause of injury, a medical malpractice claim may be an appropriate legal remedy to pursue against the facility and medical staff considered responsible. Successfully prepared claims can result in a monetary award, which can provide for the past, current and future economic losses that may be encountered from medical expenses and necessary care for the child.

Source: milive.com, “Spectrum Health, parents reach settlement in malpractice case over infant’s brain injury“, Sue Thoms, Aug. 4, 3014

Jury finds in favor of family in medical malpractice case

News of medical errors seem to be pretty common these days; not only in Pennsylvania but all across the country. Putting trust in the medical system isn’t always the easiest thing, particularly when the patient is a child. For very good reasons, parents want to know and understand every medical procedure before anything is done, but they also have to trust that these procedures will be carried out properly. Unfortunately, treatment errors happen and sometimes negligence is the underlying cause of these medical malpractice mistakes.

A couple in another state was recently awarded $1.25 million dollars in a medical malpractice suit over the death of their infant daughter. Their little baby died just a few days after birth; which was believed to be the result of a misplaced feeding catheter. The child was born prematurely and the feeding catheter was inserted in the neonatal intensive unit. The tip of the catheter apparently ended up in the baby’s heart, causing a build up of fluid and eventually cardiac arrest. The claim was actually filed against the radiologist, who apparently failed to report the error in placement to the medical staff over the baby’s care, but instead reported there were no abnormalities in the placement.

The family’s claim asserts that if the radiologist had properly viewed the x-ray and given notice to other medical staff, the placement would have been fixed and their child would be alive today. A jury decided that while the radiologists actions weren’t the direct cause of the baby’s death, his failure to accurately diagnose and report findings was negligent and contributed to the death. The radiologist in this case died several months before the suit was brought forward, but the family was able to make the claim against his estate.

Medical errors resulting from negligence that leads to the death of a loved one is unacceptable, and those responsible for the error should be held accountable. Residents of Pennsylvania who have lost a loved one as a result of a medical error have the right to question treatment and seek answers. Medical malpractice claims may be filed in an effort to recoup any financial losses that have resulted from negligence, hold medical staff or facilities responsible and provide some sense of closure to surviving family members.

Source: mlive.com, “Grand Rapids couple awarded $1.25 million in malpractice suit after infant daughter’s death“, Heidi Fenton, March 27, 2014

Settlements continue to be reached for Stryker Rejuvenate Hip Cases

A New Jersey court ordered mediation program continues to result in the successful settlement of Stryker Rejuvenate hip lawsuits, resolving claims over the recalled hip replacement early in the litigation process.

There are currently more than 1,500 product liability complaints pending in New Jersey state court involving the Stryker Rejuvenate and ABG II modular hip systems, which were removed from the market in July 2012 due to a risk that the implant may corrode, fret and ultimately fail within a few years.

Unlike traditional hip implants, which feature a single femoral component, the Stryker Rejuvenate and ABG II contained a modular neck-stem, with two pieces that fit inside of each other to allow the surgeon to customize the length of the femoral component based on the patient. However, the design has been linked to an increased risk of problems that may result from the release of microscopic metal debris as the chromium-cobalt neck rubs against the titanium femoral stem.

As part of coordinated pretrial proceedings before Superior Court Judge Brian R. Martinotti in Bergen County, a mediation program for Stryker Rejuvenate hip cases has been established in an attempt to resolve cases prior to the first bellwether trials, which are expected to begin next summer.

According to a case management order issued following a status conference last month, at least 17 of the 18 cases that have gone through the mediation process in New Jersey state court have settled, with three more cases scheduled for this month.

Given the success in settling Stryker Rejuvenate claims, Judge Martinotti is expected to select an additional ten cases next month, which will move forward through the mediation program.

If you had a Stryker Rejuvenate Hip Implant that failed and required revision surgery, contact Cliff Rieders, Esq. to determine whether you have a claim.

DePuy ASR HIP Settlement Requires Registration By January 6, 2014

Individuals who have previously experienced problems with a DePuy ASR hip replacement, which resulted in the need for revision surgery, must register by January 6 to be part of the settlement program announced in November.

Johnson & Johnson’s DePuy Orthopaedics division currently faces about 12,000 hip replacement lawsuits filed in state and federal courts throughout the United States following the 2010 recall of the DePuy ASR XR Acetubular Hip System.

The metal-on-metal hip replacement system was removed from the market after data suggested that about one out of every eight would fail within five years.

In November, a DePuy ASR settlement program was announced, which will result in the manufacturer paying at least $2.4 billion to resolve claims, but the total benefits that may be available under the offer may reach as high as $4 billion after accounting for medical expense reimbursements and other costs.

Under terms of the agreement, individuals who underwent hip revision surgery prior to August 31, 2013 due to problems with a DePuy ASR hip may be eligible to pursue compensation through the program that will provide an average of about $250,000 per claim.

If you have questions about DePuy ASR Hip Recovery, contact Cliff Rieders, Esq. at the Rieders Travis Firm

Family of Pennsylvania man to get medical malpractice settlement

The family of a West Shore, Pennsylvania man that died after a hip replacement surgery will receive a one million dollar settlement from a medical malpractice suit. The settlement, determined by a judge, came after three years after the original filing of the lawsuit. None of the health care providers are admitting any medical malpractice or wrongdoing.

The insurance company that is paying the settlement is that of a heart doctor that the Pennsylvania man saw before his death. He was complaining of health issues following his hip replacement surgery. The man was complaining of shortness of breath and weakness. The suit claims that the man’s symptoms were misdiagnosed by the doctors and he was mistreated.

While the doctors are adamantly denying any wrong doing, the judge obviously saw merit in granting the family at least a small recompense for the pain and suffering caused by the unexpected death of a loved one. The settlement would perhaps cover any unpaid medical and end of life expenses that were acquired. Any successful wrongful death suit is won by presenting evidence and documentation, as well as any eyewitness accounts that could prove negligence. There is no specific mention of any evidence used by the legal team in the case.

In any medical malpractice case, it is important to carefully examine and evaluate all evidence that could be used to prove that negligence caused the damages claimed. This can be done though medical records, witness accounts or by having expert witnesses testify concerning the case. If a family feels that they have been the victim of medical malpractice, they have the right to explore legal options for seeking restitution.

Source: pennlive.com, “$1M settlement to end malpractice lawsuit over West Shore man’s death,” Matt Miller, July 17, 2013

New Black Box Warning Added for Pradaxa in April 2013 – Lawsuits on the Horizon

Pradaxa (dabigatran etexilate) is a drug that has been on the market since 2010, when it was approved by the FDA as a supposed alternative to Coumadin (warfarin). The drug is manufactured and marketed by a European pharmaceutical giant, Boehringer Ingleheim. Pradaxa is an anti-coagulant or blood thinner, used to reduce the increased risk of blood clot or stroke in heart patients with non-valvular atrial fibrillation, a very common type of heart arrhythmia. Allegedly, Phase III clinical trials (known as the RE-LY) trials, done with guidance from the FDA by the pharmaceutical company, showed a reduced risk of stroke with Pradaxa in this group of patients. The results from this trial can be found here. The majority of the study authors had, problematically, as is the case with most late-stage clinical trials, received consulting fees from the drug company. The publication of the clinical study concluded:

“In conclusion, we compared two doses of dabigatran with warfarin in patients who had atrial fibrillation and who were at risk for stroke. As compared with warfarin, the 110-mg dose of dabigatran was associated with similar rates of stroke and systemic embolism and lower rates of major hemorrhage; the 150-mg dose of dabigatran was associated with lower rates of stroke and systemic embolism but with a similar rate of major hemorrhage.”

However, many on the FDA advisory board were skeptical that the risk of stroke was the same, if not higher, while the bleeding risk was actually greater given Pradaxa’s mechanism (discussed below). Any excellent article discussing the this issue and the skepticism among members of the FDA panel that reviewed the drug for approval can be found here.

The problem with Pradaxa is its mechanism and the fact that there is no antidote to the drug, like there is with warfarin. Pradaxa works as an anti-coagulant. The drug’s mechanism works to stop a series of interactions that lead to blood clotting to prevent but unlike other anti-coagulants, has no antidote, which creates the bleeding risk. However, this risk was minimized by the FDA in the label and warning information that was provided to the public when the drug was first approved, stating only: “Pradaxa can cause serious and, sometimes, fatal bleeding.” Critically, the label did not mention Pradaxa’s key flaw, that the Pradaxa is an anti-coagulant and that there is no antidote to its mechanism of stopping blood clotting, therefore, and overdose of Pradaxa, unlike an overdose of warfarin, cannot be reversed by any known medical means. It is because of this reason that many suspect that Pradaxa may actually have an increased risk of bleeding compared to warfarin, which has over fifty years of known, regulated use on the market. Because of these issues, Pradaxa lawsuits are beginning to emerge challenging that the drug has an unusually dangerous risk of bleeding which was concealed in the RE-LY trial, and hidden by the FDA as a means of quickly bringing Pradaxa to market.

Even worse in the label, it notes in tiny print (as the article hyperlinked above noted) that “risk factors for bleeding include the use of other drugs that increase the risk of bleeding (e.g., anti-platelet agents, heparin, fibrinolytic therapy, and chronic use of NSAIDs),” which a large number of the target patients, heart patients are taking concurrently.

On November 2, 2011, a drug safety communication was issued noting the numbers of serious bleeding events with Pradaxa, including gastrointestinal bleeding and intracranial hemorrhage. The FDA noted that “following the approval of Pradaxa, FDA received a large number of post-marketing reports of bleeding among Pradaxa users,” and therefore conducted an investigation into these events. In fact, there were more reports of side effects to the FDA with Pradaxa in 2011 than with any other drug on the market. At the time, FDA claimed the results of its study of bleeding events was similar to the data from the RE-LY trial conducted for clinical drug approval but that the FDA was continuing to evaluate multiple sources of data.

At the time, FDA stated as follows about Pradaxa: “Pradaxa and warfarin are important medications used to reduce the risk of stroke and blood clots in patients with non-valvular atrial fibrillation (AF), the most common heart rhythm abnormality, which causes the heart (upper chambers or atria) to beat rapidly and irregularly. Although these drugs reduce the number of strokes in patients with non-valvular AF, they can cause bleeding, potentially leading to serious or even fatal outcomes. The risk of bleeding is a well-recognized risk of anticoagulant drugs. ” However, the FDA did NOT change its recommendation for Pradaxa, nor did it change the label, or add information noting that unlike warfarin, there is no antidote to Pradaxa.

On April 30, 2013, just recently, the Boehringer Ingleheim announced that Pradaxa would carry a black box warning for the first time, the most serious type of warning that the FDA employs on prescribing information. A copy of the drug company’s announcement can be found here. The Pradaxa prescribing information now contains a black box warning, altering patients that discontinuing Pradaxa without adequate anti-coagulation increases the risk of stroke. A similar warning had previously been present in small print in the prescribing information, as well as in the Pradaxa medication guide from the FDA, but had not been present in a black box form. In addition, the postmarketing section of the label will now include a risk of thrombocytopenia (low platelets). This black box is still not adequate to show the postmarketing experience of bleeding with the drug. Incredibly, the company continues to deny bleeding is unmanageable and poses no greater a risk with Pradaxa than with warfarin.

If you have taken Pradaxa and suffered from serious bleeding side effects, hemorrhage or stroke, call Cliff Rieders, Esquire, of Rieders, Travis, Humphrey, Harris, Waters, Waffenschmidt & Dohrmannn, (570) 323-8711, to see whether your claim would be appropriate for filing as a new case. If you or a loved one has taken Pradaxa, contact us today to learn about your legal rights and the potential for recovery.

First Verdict Entered for Plaintiff in DePuy Hip Replacement Cases in California State Court; Federal Cases Up for Trial Beginning in September 2014

Much litigation has ensured out of the DePuy ASR hip replacement system since Johnson & Johnson’s voluntary recall in 2010. In March 2013, a jury in state court in Los Angeles ordered J&J to pay $8.3 million to a Montana man in the first verdict in the lawsuits pending over the now-recalled artificial hip. However, the jury declined to issue punitive damages, saying that the DePut orthapedics unit at J&J operated without fraud or malice. The verdict is discussed in a New York Times article here. The majority of the award, $8 was awarded in pain and suffering, while the remainder was for medical expenses.

Additionally, there are more than 7000 federal lawsuits over the DePuy hip replacement system. As of May 2013, more than 4000 of these cases have been consolidated into a federal multidistrict litigation. DePuy, a subsidiary of Johnson & Johnson, is currently facing two multidistrict litigations (MDLs), one for each hip replacement system. MDLs group similar cases together during the pretrial phase in order to expedite the process, avoid complications from multiple rulings, and minimize the expenditure of resources. The DePuy ASR hip MDL is currently allocated to the U.S. District Court’s Northern District of Ohio. The DePuy Pinnacle hip MDL is allocated to the Northern District of Texas.

Early MDL cases that set the tone for the rest of the litigations are referred to as bellwether cases. he outcome of a bellwether case may then be used as a guideline for facilitating agreements within similar cases. The first bellwether trials are scheduled to go to trial in the Ohio MDL in September 2014.

Medical malpractice case ends in a success for man’s family

A Pennsylvania medical malpractice case has ended with a $6.4 million verdict for the plaintiff. The suit was filed two years ago by a man’s family after he died from a massive heart attack only months after being released by a city hospital. The medical malpractice verdict came after a trial that lasted a week. The incident that spurred the malpractice suit came in 2009 after the man, who had a medical history of atrial fibrillation, experienced chest and shoulder pains after playing basketball earlier in the day.

He was transported to the hospital and was assessed by two physicians. The man was diagnosed with pneumonia and syncope and released from the hospital later the same evening. Three months later, emergency responders were called to assist a man, who was having a seizure. Responders found him vomiting, spitting and coughing after a game of basketball. He went into shock and was transported back to Temple University Hospital where he went on mechanical ventilation.

The next evening, the man was diagnosed with an anoxic brain injury and an acute heart attack, which resulted in cardiac arrest. He was treated for pneumonia, an abdominal wound that had become infected and heart-related problems. On Oct. 7, 2009, he was transferred to a long-term care facility where he remained dependent on the ventilator and had to endure several medical procedures.

The Pennsylvania medical malpractice lawsuit maintained that his ultimate demise was caused by the negligence of the defendants, who failed to order appropriate tests for the man. These tests could have properly diagnosed his condition. Courts found one of the doctors to be 88 percent negligent, another to be 10 percent negligent and the hospital to be two percent negligent. The man’s family was awarded $5,657,039.82 in damages. In addition, his family received $750,000 for pain and suffering. Although the family gained monetary compensation for the negligence attributed to the man’s death, the award cannot bring him back. Hopefully this will at least ease some of the grief his family is undoubtedly continuing to endure.

Source: The Pennsylvania Record, “Phila. jury renders $6.4 million plaintiffs verdict in medical malpractice, wrongful death case,” Jon Campisi, June 7, 2012

Medical malpractice case may interest Pennsylvania readers

Medical malpractice can have devastating consequences for patients already suffering through a health concern or crisis. It can seem even more tragic when the circumstances leading up to a case of medical malpractice were avoidable. Pennsylvania residents who have gone through something similar might be interested in the case of a foreign-born doctor who has been accused of medical malpractice for allegedly falsifying his credentials and performing surgeries he was supposedly not qualified to perform.

Apparently, former patients of the man started filing lawsuits against him two years ago. Many of the lawsuits claim that the spinal procedures the man performed on them left them suffering from excruciating pain and injury. Allegedly, some patients have even suffered partial paralysis and the loss of bladder and bowel function. A former colleague also claims that the man proved to actually not be a surgeon at all, and the procedure he used to inject “Plexiglas-like” cement into patients’ spines was both unsafe and ineffective.

It seems that the German-born man is actually an anesthesiologist and pain management specialist, not a surgeon. The hospital which allowed him to perform surgical services has evidently filed bankruptcy protection in the wake of the medical malpractices filed against them regarding this particular man. It has also purportedly made at least a partial settlement on the medical malpractice claims, with the settlement amount reportedly in the neighborhood of $33 million.

Reports indicate that the hospital involved in this medical malpractice case may have ignored red flags as far as the lack of surgical credentials for the anesthesiologist. Hospital staff members who complained about the man’s credentials even say they were told to drop the situation. Pennsylvania patients concerned about medical malpractice issues may benefit from knowing the professional background of any doctor scheduled to operate on them and from seeking the right counsel if it becomes apparent that medical negligence caused or contributed to a serious injury or illness.

Source: Equities.com, “‘Untouchable’ Doc at Center of Malpractice Storm,” Colleen Heild, July 29, 2012

Pennsylvania veteran sues VA for PTSD medical malpractice

Medical malpractice cases can seem even more tragic when they involve individuals who have served their country in the military, especially in war-torn areas like Iraq. One Pennsylvania veteran who served in Iraq has filed a medical malpractice lawsuit against the Department of Veterans Affairs. He is seeking more than $5 million in damages stemming from allegedly poor treatment of the man’s post-traumatic stress disorder.

He and his wife are both plaintiffs in the trial which recently got under way. They claim that the VA prescribed a series of medications that are ineffective when it comes to the treatment of PTSD. Further, their lawsuit asserts that the VA should be well-versed in treating PTSD.

Courtroom testimony revealed the story of how the soldier’s psychological nightmare began after he stormed an apartment home in Iraq and believed himself to be responsible for the death of a child. Other incidents of violence added to his emotional troubles. Once he returned home to the U.S., he began experiencing anger, nightmares, flashbacks, bouts of insomnia and paranoia.

During opening arguments, the plaintiffs pointed out that the VA failed to allow the soldier to speak with a psychiatrist or trained physician to get treatment for his PTSD symptoms. Instead, VA nurses and physicians assistants apparently prescribed the man drugs whenever he complained about the serious difficulties he was having, typically over the telephone. At some point he was referred to psychotherapy but asserts he was never actually given the treatment he needed.

Things reportedly came to a breaking point for the man when he broke into a pharmacy to steal prescription drugs and was thereafter arrested for that incident. The defense maintains that the VA prescribed drugs appropriately based upon the agency’s guidelines. At the time of this report, the medical malpractice trial was set to continue in Pennsylvania court as the plaintiffs seek the outcome they hope will give this Iraqi veteran the justice that he needs to become healthier going forward.

Source: pennlive.com, “Carbondale Man Seeks $5 Million In PTSD Lawsuit Against VA Medical Center,” Sept. 11, 2012

Medical malpractice? Possible insulin pen risk in Pennsylvania

Readers may have heard of a recent situation taking place at a hospital near the Pennsylvania border. Letters have been sent out to more than 1,900 patients from Olean General Hospital, informing them that insulin pens have been reused on multiple patients. Because of this, patients who received injections with insulin pens from Nov. 2009 until Jan. 2013 may be at risk for hepatitis B, hepatitis C and HIV. Even though the risk is slight, there may be a possibility of medical malpractice suits as a result of this situation.

So far, the hospital is not aware of any cases in which a patient has been infected from this practice. While hospital staff changed the needles with each use, there is a possibility that a back flow of blood got into the insulin cartridge of the pen. If this occurred, it may have caused cross-contamination when the pen was used on other patients.

For several years, federal health agencies, such as the FDA, have warned medical centers about the risks of using insulin pens on multiple people. Another warning was issued last year after reports emerged that hospitals were continuing the practice. Olean General Hospital has now removed the insulin pens. Fortunately, a Pennsylvania hospital within the same network has never used them.

The hospital did not identify patients who may be at risk for infection from insulin pens, so it remains to be seen if any Pennsylvania residents are affected. Since there is a history of similar incidents occurring at other hospitals, it is also possible that other situations like this may come to light in the future. Anyone in our state who discovers that he or she may be the victim of medical malpractice may wish to examine what legal options are available.

Source: CBS News, “Second N.Y. hospital warns of HIV infection risk from insulin pens,” Jan. 24, 2013

Is the VA Concealing Medical Malpractice?

Veterans who receive medical care through the Veteran’s Administration (VA) system have the right to believe the care they will receive from the VA doctors and hospitals will be competent and comparable to the care they would receive at private facilities. Unfortunately, this is not always the case. As a result, the VA has come under scrutiny and is facing lawsuits for negligence that has led to preventable deaths and preventable harm to veterans.

The VA is a huge system that provides services for some 22 million American veterans. In recent years, there has been an increase in VA medical malpractice claims, involving mistakes that include prescription of the wrong medication, botched surgeries, failure to diagnose illnesses, and acts that led to wrongful death. According to an article in USA Today that reviewed hundreds of confidential VA records, veterans’ hospitals signed secret settlement deals with doctors, nurses and healthcare workers that included promises to conceal serious mistakes — from inappropriate relationships and breakdowns in supervision to dangerous medical errors. The VA has been under fire in recent years for serious problems, including life-threatening delays in treating veterans and efforts to cover-up shortfalls by falsifying records.

If you or a loved one has suffered harm from negligent care in the VA system, you may be entitled to compensation for your medical and hospital bills, rehabilitation costs, lost wages and future lost horizon, pain and suffering, loss of life’s pleasures, disfigurement, and emotional distress. Awards may be substantial where the evidence permits. According to an analysis of Treasury Department records, as of mid-2014, the VA had spent more than $50 million on medical malpractice claims. Pennsylvania cases include:

  • In 2007 a patient at a Philadelphia VA medical center had eight teeth extracted and was left permanently incapacitated from the surgery. The result was a $17.5 million malpractice judgment.
  • In 2013, the VA Inspector General found that systemic failures involving bacteria in the hospital’s water system at the Pittsburgh VA led to a recent Legionnaires’ outbreak that resulted in the death of at least five veterans.
  • According to The Center for Investigative Reporting, four veterans died due to medical malpractice at the Coatesville Veterans Affairs Medical Clinic, resulting in $1.4 million in wrongful death settlements.

Awards can be substantial, depending on circumstances, but cases must be handled competently by an attorney knowledgeable about VA malpractice procedures; otherwise, you may never receive the compensation you are entitled to.

The experienced Pennsylvania injury attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann, wrote the book on medical malpractice. Cliff is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.

We offer a free consultation to carefully examine the individual facts in your case and determine the best way to handle it. Contact us today by calling 800-326-9259 or by using our online contact form to set up your free consultation.

Suing the VA for Medical Malpractice

Medical malpractice is negligence committed by a professional health-care provider – a doctor, nurse, dentist, technician, hospital, or nursing facility – whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient.

While frequently the federal government is immune to being sued, but in certain circumstances the Federal Tort Claims Act (FTCA) provides an exception to this doctrine. The FTCA allows veterans and their dependants to sue the VA for medical malpractice committed by physicians and other healthcare providers employed by the federal government.

There is a two-year statute of limitations that begins to run on the date that the injury occurred or the date on which the injury was actually discovered or reasonably should have been discovered. This can sometimes be extended if the injured person continues to receive treatment for the injury from a military or VA facility. The statute of limitations is a very complex matter and cannot be explained in one or two sentences.

In filing a VA claim, your attorney must submit a Standard Form 95 (SF 95), along with details that describe the events causing your problems, the injuries you received, and your damages. The government will then investigate the claim and may ask for additional information or interview the injured veteran and family.

The VA can then either:

  • Accept the claim and pay it out in full
  • Settle the claim for less
  • Reject the claim outright.

If the claim is rejected, or if the government fails to offer settlement, your attorney may then file suit in federal court in the district in which the malpractice occurred or in which you live.

There are times when a claim may be filed under 42 U.S. Code § 1983, sometimes referred to as a civil rights claim. These are in highly unusual situations, but the facts dictate whether such a claim can be brought.

Requirements for a Lawsuit

For a medical malpractice claim against the VA to be successful, you must meet certain requirements in the initial stages of the claim. Claims under the FTCA must be specifically for:

(1) money damages, resulting from

(2) “injury or loss of property, or personal injury or death” due to the

(3) “negligent or wrongful act or omission” by

(4) “any employee of the government” who was “acting within the scope of his office or employment” and

(5) under circumstances where the United States, if a private person, would be liable “in accordance with the law of the place where the act or omission occurred.”

Under the FTCA, claims are brought in federal district courts, without a jury trial — not in state courts. Claims, however, must allege negligence as defined by state law, which makes them more complicated. The interplay between federal and state law is a matter of great complexity. There is no dollar limitation on liability, so multimillion-dollar judgments have been obtained against the government.

Damages Available Under the FTCA

If your medical malpractice claim against the VA is successful, you may be entitled to:

  1. Non-economic or General Damages for pain and suffering, loss of enjoyment of life, inability to engage in usual activities, emotional distress, disfigurement, and mental anguish of survivors or disruption of family community in wrongful death cases and survival actions.
  2. Economic or Special Damages for lost wages and services, cost of medical care, and disability.
  3. Future Damages. Economic and non-economic damages that are reasonably certain to occur after claim is settled.

Filing a Claim

Filing a malpractice claim under the FTCA is complicated and must be handled competently or you may never receive the compensation you are entitled to. Before you sue, you must make an administrative claim against the VA for the full amount of damages. You should consult an experienced VA malpractice lawyer to determine what you may be entitled to, as you will never be able to ask for more damages without providing additional evidence. In addition, you must meet the legal deadlines for filing, or you may lose your claim forever.

Achieving Results When it Counts

The skilled and experienced VA Medical Malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. We offer personal attention and loyalty to every client, aggressively fighting for their right to compensation. Whether in settlement negotiations or pursuing a favorable trial verdict, we are thoroughly prepared and committed to achieving a just outcome. With our knowledgeable staff, we offer strength in numbers while providing top-notch personal service.

We have years of experience dealing with the harm that results from VA medical malpractice. As a result, we have been successful in securing substantial recoveries for legitimate claims.

If you or your loved one has suffered harm from the negligence or incompetence from the VA or its employees, your next step should be to consult Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling 800-326-9259 or by using our online contact form. Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

Dental Malpractice and its Consequences

Should Pennsylvania public health dental hygienists be allowed to practice without supervision in areas where dentists are hard to find? People who currently do not have access to dental care might benefit, but many dentists are not in favor.

Pennsylvania is considering regulatory changes that would expand the range of settings where Public Health Dental Hygiene Practitioners (PHDHP) are allowed to practice. Advocates believe this will increase access to dental care and provide care to populations that are not currently getting it. However, the proposal is opposed by dental groups, who claim concerns with issues of safety and comprehensive care, and these could lead to potential lawsuits.

According to Pennsylvania law, all dental professionals must provide a certain standard of care to avoid injury to their patients. Even skilled dentists, oral surgeons, periodontists, and orthodontists can make mistakes or act negligently and injure their patients, which may result in pain, further unplanned treatment and significant financial burden, and sometimes even lead to death. If serious injury occurs because of negligence or incompetence, dental malpractice may be involved and become grounds for a lawsuit.

Similar arguments have been made for nurse practitioners, physician assistants, and others. We have found that, generally speaking, permitting paramedical people to render medical care is not good for patients. If a paraprofessional works under the direct and close supervision of a doctor, and that doctor is legally responsible for the paraprofessional’s actions, then there is benefit to so-called “healthcare expanders.” However, permitting paramedics, paralegals, notaries, and other people who are not supervised and are not properly trained to render critical services is always a bad idea.

Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann, has been involved in writing regulations and laws, testifying on the efficacy of laws and regulations, and advocating for the rights of injured patients. Rieders is a Past President of the Pennsylvania Trial Lawyers Association, now called the Pennsylvania Association for Justice. Rieders is recipient of the George F. Douglas, Jr., Amicus Curiae Award, as well as the Milton D. Rosenberg Award, both from the Trial Lawyers group. Rieders has also served as President of the Central Pennsylvania chapter of the Federal Bar Association. Rieders knows the risks of having nonprofessionals, who are not properly supervised and trained, render care. It is also important that any so-called “expander” be properly insured.

If you or a loved one has been injured from dental malpractice, you may be entitled to medical benefits and compensation for your loss. However, not everything that goes wrong during a dental procedure is grounds for malpractice, and not all dental injuries warrant going to court. For a claim to be successful, the burden of proof, by a preponderance of the evidence, is on the patient, so it is essential to have a skilled dental malpractice lawyer on your side. An expert who testifies in a dental malpractice case has testified to a reasonable degree of medical certainty.

What are Public Health Dental Hygiene Practitioners?

In Pennsylvania, a public health dental hygiene practitioner is defined as a certified and licensed dental hygienist who is certified by the Board as having met their requirements. The dental hygiene practitioner must:

  1. Hold an active license in good standing
  2. Have professional liability insurance in a minimum amount of $1 million per occurrence and $3 million per annual aggregate
  3. Be certified by a licensed dentist to have completed a minimum of 3,600 hours of practice as a licensed dental hygienist under the dentist’s supervision.

Public health dental hygiene practitioners are already able to perform dental hygiene services without the supervision of a dentist in the certain settings. These include:

  1. Public and private elementary and secondary instruction schools
  2. Correctional facilities
  3. Healthcare facilities, institutions under the jurisdiction of a federal, state or local agency, and free and reduced-fee nonprofit health clinics
  4. Personal care homes, domiciliary care facilities, older adult daily living centers, and continuing-care provider facilities.

All of these regulations, however, do not by themselves address the important supervision issue. Permitting the practice of dental hygiene without onsite supervision always has the potential of being dangerous to the patient.

What the Proposal States

The proposal would expand areas where public health dental hygiene practitioners can work without supervision to include additional places such as daycare centers, pediatrician’s offices and other locations. Advocates say the proposed change could, for example, reach children in the offices of pediatricians who accept Medicaid, since few dentists take Medicaid. The practitioners can perform services such as cleaning teeth, stressing the need for oral health care, and referring people to dentists for further care.

Opponents feel the expansion “will jeopardize patient safety, and allow a standard of care below what is acceptable,” according to a statement on the Pennsylvania Academy of General Dentistry website. Dentists believe that they are the only ones trained in diagnosis and in treatment for dental disease, and that dental hygienists should work as part of a dental team and be connected with a dentist for all procedures.

On many occasions, dental hygienists will call the dentist into the office and the dentist may find evidence of cancer or another serious condition that cannot be diagnosed even by a well-trained hygienist. A dentist should always look at a patient who is being worked on by a hygienist or any other paraprofessional.

Dental Malpractice in Pennsylvania

Dental problems can affect not only your mouth, but the rest of your body. Your mouth is full of bacteria and nerves, so when mistakes are made by any dental professional, whether a dentist or a hygiene practitioner, the results can lead to nerve and bone damage, enormous pain, and life-threatening infections.

Negligence that leads to dental malpractice can occur through:

  • Errors during oral surgery and surgery that fails
  • Errors in administering anesthesia
  • Injury to nerves, such as the lingual or mandibular nerve, that may be painful and even permanent
  • Teeth that are removed needlessly or damaged by procedures
  • Failure to look for, detect and diagnose oral cancer
  • Damage leading to permanent impairment or injury to the jaw, mouth, lips or tongue
  • Bacterial infections due to oral treatment that start in the mouth and become systemic, damaging the body or even causing death.

Put Your Trust in Us, Contact Us for a Free Consultation

If you or a loved one suffered an injury from a dental procedure, time is of the essence. Pennsylvania malpractice laws are complicated, so it is essential to have a skilled and knowledgeable dental malpractice lawyer on your side.

Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced Pennsylvania dental malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann is familiar with the law and thoroughly prepared and committed to achieving a just outcome and getting you the compensation you deserve. With our sizeable staff, we offer strength in numbers while providing top-notch personal service.

If you or your loved one has suffered from dental or medical malpractice, do not delay. Consult Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling 1-800-326-9259 for a free consultation, or use our online contact form.

Pennsylvania Gets Poor Grades on Home and Community Safety

Bad things happen to good people. When injuries, death and harm are preventable, the situation is even more tragic. According to a report by the National Safety Council entitled The State of Safety – A State-by-State Report, covering a period of time through 2015, preventable deaths in the United States are at an all-time high. Pennsylvania gets an overall rank of “D” in terms of prevention.

The report concludes that 40.6 million serious, preventable injuries and over 146,000 fatalities occur each year, and nearly three-quarters of them occur in homes and communities. The financial cost to society is more than $850 billion each year, and on top of these are the costs of pain and suffering, not to mention the disruption to people’s lives.

If you or a loved one has suffered an injury or there has been a death due to someone’s negligence, you may be entitled to financial compensation to cover your medical expenses, lost wages, property loss, pain and suffering, disfigurement, loss of life’s pleasures, and emotional distress. The seasoned Pennsylvania accident personal injury attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has helped hundreds of people file successful personal injury lawsuits. With decades of experience with many types of accidents and an excellent reputation in the legal community, we are well positioned to handle even the most difficult cases. We offer a free consultation to examine the facts of your case and find the best approach to getting you the compensation you deserve.

What the Report Showed

The NSC report looked at accidents in the categories of (1) Road Safety, (2) Home and Community Safety, and (3) Workplace Safety. Each category has sub-category safety issues pertaining to:

  • mechanisms of injury, such as falls, poisonings, and fire
  • risk or protective factors, such as distracted driving and seat belt use
  • vulnerable populations, such as older drivers, child passengers
  • legislative action, such as health promotion in the workplace.

The indicators for each of the safety issues were summed up to determine grades for how each state deals with the issues.

  1. Road Safety –

An estimated 40,200 people died on our nation’s roads in 2016. Motor vehicle crashes are the second leading cause of unintentional death in the United States, primarily caused by distraction, speed and alcohol. According to the NSC, a comprehensive road safety approach that integrates laws, enforcement and driver education can shift culture over time, so that safety becomes the norm and safe behaviors become customary.

Pennsylvania needs serious change in the area of road safety. The state received a “D” in the road safety category, based on rankings of Alcohol-Impaired Driving, Child Passengers, Distracted Driving, Older Drivers, Seat Belts, Speeding, Teen Drivers, and Vulnerable Road Users. Pennsylvania ranked 36th when compared to other states.

  1. Home and Community Safety –

There were 121,904 preventable deaths in the home and community safety area in 2015. The most common reasons for these deaths are ordinary circumstances like falls, poisonings, choking or sports injuries. These injuries often affect children and older adults and cost $240 billion annually.

The home and community safety areas rated in the NSC report include 24 indicators grouped under six safety issues: youth sports-related concussions, drowning, older-adult falls, firearm fatalities, home fires and poisoning. Poisoning itself accounted for over 50 percent of the deaths, due to the high rate of opioid overdoses.

States can make a difference by passing legislation that helps minimize problems. For example, access to guns is regulated through laws relating to purchasing, selling, storage, training and background checks. Also, states may mandate sharing mental health and criminal records with the National Instant Criminal Background Check System (NICS) to prevent firearm access to individuals who are involuntarily committed, subject to a domestic violence protective order, or are otherwise prohibited from owning firearms under federal law.

However, when it comes to home and community safety, Pennsylvania also ranks 26th among states, with a dismal D rating.

  1. Workplace Safety –

The NSC reports that each day 13 American workers die on the job, with 4,836 reported workplace fatalities in 2015. Another 12,000-plus American workers are injured each day.

Leading causes of workplace death are motor vehicle crashes, falls, and contact with objects and equipment, as well as workplace violence. The leading preventable causes of worker injury include overexertion; slips, trips and falls; and incidents involving contact with objects or equipment.

Although many aspects of occupational safety and health are regulated by OSHA at the federal level, states can do their part to encourage employers to put policies in place to create safer workplaces. For example, states can ensure that workplaces have programs to address safety and health issues and engage all levels of workers to participate; they can also pass workplace violence laws

In workplace safety, Pennsylvania ranked 17th among states, with a C rating.

  1. Hospital and Patient Safety –

The Pennsylvania Patient Safety Authority reports almost a third of a million incidents and serious events a year. Yet in Pennsylvania, according to the Administrative Office of the Pennsylvania Courts, approximately 1,400 cases are actually filed. Therefore, very few people sue to receive compensation for preventable medical harm in Pennsylvania.

Contact Us For Help and a Free Consultation

If you or a loved one has been injured by, or a death has resulted from, a preventable accident due to someone else’s negligence, you may be entitled to compensation. The experienced and compassionate attorney Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. We offer personal attention and loyalty to every client, aggressively fighting for their right to compensation. Our deep sense of loyalty to each client drives us to pursue each claim vigorously. Whether in settlement negotiations or pursuing a favorable trial verdict, we are thoroughly prepared and committed to achieving a just outcome.

Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.

If you have been in an accident, time is of the essence, so do not delay. We offer a free consultation, so call 800-326-9259 or use our online contact form. Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

More Hurdles to Bringing Legitimate Medical Negligence Claims

Your right to collect legitimate compensation for serious harm as a result of medical negligence may face another hurdle as a result of a recent bill passed by the United States House of Representatives. If enacted, the law would place a limitation of $250,000 on what is often the most important damages awarded to legitimate victims. These damages, sometimes called “noneconomic damages,” would include compensation for serious pain and suffering, loss of life’s pleasures, and the kinds of damages that constitute the biggest lawsuits.

The damages erroneously referred to as “noneconomic” damages have existed since biblical times. They compensate seriously injured people for pain and suffering, loss of life’s pleasures, disfigurement and disabilities that are often the most serious portion of any case. In fact, Pennsylvania courts have noted that these kinds of injuries are below the waterline and may be the biggest damages even if somebody has loss of income and medical/hospital bills. The limitation on damages would affect most medical malpractice areas such as surgical errors, unsafe drugs, abuse and neglect in nursing homes, negligence in anesthesia administration, and perhaps even sexual assault committed by medical professionals. Damages such as medical expenses or lost wages would not be affected by the limitation of the law. However, those are the expenses that may be covered by other insurance or government benefits. Therefore, for most people the real losses when they suffer terribly from medical negligence are loss of life’s pleasures, pain and suffering, disfigurement, and what we all think about when people are seriously hurt.

If you or a loved one has suffered harm caused by negligent, incompetent or substandard care on the part of medical professionals, you may have grounds for a medical malpractice lawsuit to get compensation for your loss. However, not everything that goes wrong during a medical procedure is grounds for medical malpractice. For a claim to be successful, the burden of proof is on the patient, so it is essential to have a skilled medical malpractice lawyer on your side. A person suing must prove their case by a preponderance of the evidence, which is sometimes referred to as “tipping the scale.”

The experienced and compassionate Pennsylvania medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to medical negligence and faulty devices. We offer a free consultation to examine your situation and show you how we can help.

Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.

Why the Attempt to Limit Reimbursement Under the Law?

The goal of this legislation is to prevent people from suing and collecting money even where they have been legitimately and seriously injured. Sometimes it is claimed that this will help lower the cost of health insurance by lessening the number of lawsuits filed. Obviously, patients cannot collect anything significant, the guilty will walk away scot free. What is important is that money paid out to patients as a result of medical malpractice is the smallest portion of the national medical healthcare bill. Even medical organizations have estimated that the total cost of medical payouts are no more than 1-3 percent of the healthcare bill nationally, if that. It is sometimes claimed that doctors and hospitals do extra procedures because of fear of lawsuits. These are typically procedures they should do anyway. Blaming proper medical care on the threat or fear of lawsuits is rubbish. The truth is that medical liability lawsuits are the “cop on the beat.” A head of one medical institution down south has even said to a group of doctors that the medical industry needs “both the carrot and the stick.” In every phase of life, people have to be accountable and responsible when they commit a wrong. Why should doctors or hospitals receive immunity when they do the wrong thing?

The proposed legislation in the House limits attorney’s fees, so that people cannot get good lawyers, and may reduce the time that people have to sue. In Pennsylvania, a person must sue for medical malpractice within two (2) years unless the discovery rule applies. Pennsylvania also has a statute of repose. The statute of limitations is different for minors. This is a complex area of the law, and you should consult a good attorney.

Why the Bill is Bad

The Seventh Amendment to the United States Constitution guarantees a right to trial by jury and has no caps or limitations. Those who pursue these bills to limit legitimately injured patients from collecting what they deserve have no respect for the United States Constitution. They have no respect for the history of the law. There is no convincing proof that simply denying patients the right to legitimate recovery is going to reduce any healthcare bill. In fact, the opposite would happen because clearly negligence would then skyrocket. When doctors and hospitals are negligent, what happens? Patients need more medical care. The fact that 10 percent of patients who go into U.S. hospitals wind up with infections increases the healthcare bill enormously. The reason for that is not because of lawsuits, but because of the outrageous expense of antibiotics.

The healthcare bill is increased by overcharging by pharmaceutical companies and the ridiculous cost of medical devices. States already considerably regulate medical malpractice in Pennsylvania. For example, we have the Mcare Act. Pennsylvania already limits punitive damages in medical liability cases. In fact, Pennsylvania has created so many hurdles and obstacles to medical malpractice that it is very expensive to bring these cases and very hard to find expert witnesses.

The medical community further clamps down on legitimate medical malpractice cases by essentially blackballing doctors who will testify truthfully in medical liability cases. Some medical groups have even sanctioned doctors for giving truthful testimony. Every state in the United States requires expert medical testimony unless the medical malpractice is extremely obvious, which is rare. The courts are reluctant to say that even the most gross medical malpractice is so clear that an expert is not needed.

So-called “frivolous lawsuits” are nonsense. The federal court system and virtually every state in the Union has ruled against frivolous lawsuits which sanction and punish both lawyer and claimant.

Under current law, lawyers must put forth a huge amount of money for expert witnesses, since usually clients cannot pay. The contingent fee system is the key to the courthouse. Obviously, those who would deny legitimate claims based upon medical malpractice, would like to take that key away.

It is difficult now for the old and the young to bring medical liability claims because of limitations on damages in so many states. In many states currently, for example, loss of earnings cannot be recovered unless there are dependents. That makes cases for the old and young extremely difficult to bring. The doctors and hospitals will never agree to a small claims court for medical malpractice, because they do not want claims being brought at all, regardless of how meritorious they may be.

Consider the Patient Safety Authority in Pennsylvania, for example. We know that there are a quarter million cases reported per year of incidents and serious events. Yet, how many lawsuits are actually filed in Pennsylvania? The most recent number is 1,400 per year. Very few people sue for medical or hospital malpractice because of the great obstacles and hurdles, and now Congress wants to create even more.

Essentially, what has been proposed in Congress is to take away the Seventh Amendment right to trial by jury, and to give bad actors a free pass. That is bad law, and bad policy. Worse yet, it encourages the speeding driver to drive faster, to drink more alcohol, and to run the red light. Very literally, doctors and hospitals who fear no consequences from their actions will continue to maim and kill patients.

In 1999, the Institute of Medicine reported that as many people die unnecessarily in U.S. hospitals as though two 747’s crashed per month, with a loss of all life aboard. Would we accept that in the airline industry? Hell no! We would not accept that in any industry. We have required that cars have airbags all over the place because of the great danger of automobiles. Yet, do we have the equivalent of airbags in medical and hospital malpractice cases? Absolutely not.

What we need is more responsibility and accountability by doctors and hospitals and not less. We need to eliminate the secret peer review and root cause analysis, which is just a cover-up so that hospitals and doctors do not have to tell patients what happened to them.

We need to ban blackballing of doctors who testify in medical liability cases, and to seriously punish blackballing.

We need to expand the concept that certain harm to patients can only occur because of negligence, and in such situations experts should not be needed. If somebody goes into a hospital and comes out with an infection, there should be liability for that.

It is time to remove the artificial protections that exist for wrongdoers, and to assure competent and fair recovery by those harmed due to medical malpractice.

The bill in the House of Representatives would provide immunity for doctors who prescribe or pharmacists who fill prescriptions for a drug or medical device which was approved, licensed or cleared by the Food and Drug Administration. Medical pharmaceutical devices already have immunity. This terrible concept is called preemption. In essence, the laws and regulations passed by the industry-controlled FDA take away the right to sue. This is one of the reasons why there are so many dangerous drugs on the market, and unsafe medical devices.

The vitamin and dietary supplement industry is virtually unregulated. It is extremely difficult for the government to do anything about unsafe pharmaceuticals and dietary drugs that are labeled “natural” when in fact they may not be.

If you want to invest in the stock market, what do you buy? Pharmaceutical companies and medical device manufacturers are among the wealthiest industries in the world, and they continue to get richer and richer every day off the backs of suffering patients.

Put Your Trust in Us, Contact Us for a Free Consultation

If you or a loved one has suffered from medical malpractice, time is of the essence. It is essential to have a skilled and knowledgeable medical malpractice lawyer on your side, especially since the laws are so complicated and may be changing to limit the amount you can collect.

 

Too Many Mothers Die in Childbirth

Mothers in the United States die in childbirth at higher rates than in other developed countries. Cliff Rieders, a partner in the Law Firm of Rieders, Travis, Humphrey, Waters & Dohrmann, has brought this directly to the attention of the Pennsylvania Patient Safety Authority. Cliff Rieders was a founding member of the Patient Safety Authority and served on the Board for 15 years. Cliff was President of the Pennsylvania Trial Lawyers Association, now the Pennsylvania Association for Justice, when the Mcare Act was rewritten to include the Patient Safety Authority. It was Cliff Rieders who insisted upon a Patient Safety Authority, and Pennsylvania’s was the first one in the country.

Every year in the United States, 700 to 900 women die from pregnancy or childbirth-related causes, more than any other developed country in the world. According to ProPublica and NPR, maternal mortality is more common among African-Americans, low-income women and in rural areas, but childbirth complications kill women of every race and ethnicity, education and income level. The rate of women who die has been rising.

All medical professionals involved with pregnancy, childbirth, and maternal care are held to national standards of care, and maternal health must be administered and monitored properly. Sadly, this does not always happen. If preventable injuries or death are caused by negligence, the doctor, nurses, anesthesiologist, medical facility, and hospital may be liable for personal injuries that are caused as a result.

If you or a loved one has suffered injury or death due to maternal care medical negligence, you may be entitled to compensation. The experienced and compassionate Pennsylvania maternal mortality medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann understands what you are going through. We offer a free consultation to help you investigate the cause and extent of the injury and determine the options available to make sure you secure maximum benefits and compensation.

What is Maternal Mortality?

Maternal mortality is defined as the number of maternal deaths per 100,000 births from any cause related to or aggravated by pregnancy, management during pregnancy, and childbirth, or that occurs within 42 days of termination of pregnancy. This statistic does not include accidental deaths.

According to the 2016 rankings based on the CDC’s National Vital Statistics System statistics from 2010-2014, the maternal mortality rate in Pennsylvania was 16.7, compared to the national rate of 19.9 per 100,000.

When Cliff Rieders brought the subject up to the Patient Safety Authority, he was shocked to learn that the Physician General of Pennsylvania does not keep such statistics. The Physician General agreed to look into the matter promptly.

What Causes Maternal Fetal Death?

An analysis by the CDC Foundation on maternal mortality data identified more than 20 “critical factors” that contributed to pregnancy-related deaths, including lack of standardized policies, inadequate clinical skills, failure to consult specialists and poor coordination of care. The average maternal death had 3.7 critical factors.

Deaths commonly were caused by heart problems, massive hemorrhage, blood clots, infections and pregnancy-induced hypertension (preeclampsia). Preeclampsia, a type of high blood pressure that occurs only in pregnancy or the postpartum period, can lead to seizures and strokes. Around the world, it kills an estimated five women an hour, but in developed countries, it is highly treatable. Britain has reduced preeclampsia deaths to one in a million — a total of two deaths from 2012 to 2014; but in the U.S., preeclampsia still accounts for about 8 percent of maternal deaths— 50 to 70 women a year.

The analysis found that there are many reasons for higher maternal mortality in the U.S., including:

  • Age. New mothers are older than they used to be, with more complex medical histories.
  • Planning. Half of pregnancies in the U.S. are unplanned, so many women don’t address chronic health issues beforehand.
  • C-sections. Greater prevalence of C-sections leads to more life-threatening complications.
  • Poor health care system. The fragmented health system makes it harder for new mothers to get the care they need. Hospitals are often unprepared for a maternal emergency and have erratic protocols for dealing with maternal complications.
  • Poor treatment. Confusion about how to recognize symptoms and treat obstetric emergencies leads to medical errors.
  • Lack of attention to mothers compared to infants. The 2016 Title V federal-state program devotes about 6 percent of block grants to programs for mothers, compared to 78 percent for infants and special-needs children. Medicaid often provides care for mothers for 60 days postpartum, while their infants are covered for a year.
  • Poor training. Some doctors in the U.S. can complete maternal-fetal training without ever spending time in a labor-delivery unit.

What is important is to have a cop on the beat. In many countries, there are very strict regulatory systems concerning doctors and hospitals so that the proper agencies know of neglect, do proper peer review, and take remedial action. In the United States, there is very little supervisory action by state medical boards, the Joint Accreditation Commission, or anyone else. Therefore it falls to lawyers and the patients to do something about negligence when it occurs. The legal system in the United States is the cop on the beat. Unfortunately, it can be very difficult to get information from hospitals and doctors, especially because of peer review immunities. Such immunities stand as an obstacle to patients with legitimate grievances.

What Can Be Done

Here are some suggestions that might help stem the tide of maternal deaths:

  • Increase vigilance for high blood pressure. Some leading medical organizations advise that a blood pressure reading of 140/90 for pregnant women with no previous history of high blood pressure signifies preeclampsia, and that when systolic readings hit 160, treatment should immediately start.
  • Increase vigilance for signs of deterioration such as swelling and rapid weight gain, gastric discomfort and vomiting, headache and anxiety.
  • Increase education and training for all labor and delivery nurses about preeclampsia, training for staff in Advance Life Support Obstetrics, and training on methods to assess patients and improve communications.
  • Increase care before pregnancy and in between pregnancies to address nutrition, exercise, healthy diet and weight, physical activity, quitting substance use, and preventing injuries.

According to the Philadelphia Department of Public Health, over 50 percent of women giving birth in Philadelphia are overweight or obese, and obese women are 50 percent more likely to have a surgical birth and experience complications such as preeclampsia or gestational hypertension.

Eliminate artificial barriers and hurdles to recovery in legitimate medical liability claims. Make it easier for experts to testify against doctors. Eliminate retaliation against doctors who testify for patients. Mandate that doctors provide proper information to their patients when needed in a medical liability claim. Eliminate the problems with electronic medical records. Eliminate secret peer review and make peer review available to other doctors, regulators and lawyers. Open the files of the databank to patients with legitimate grievances. Put the cop back on the beat.

Trust Our Firm for Answers

If you or a loved one has suffered an injury or someone has died due to maternal care negligence, you should seek legal assistance to ensure you get the compensation you deserve. Medical malpractice cases are complicated, as each person’s symptoms and circumstances are unique. Since symptoms change over time and evidence and witnesses disappear, it is important to contact an attorney experienced in medical malpractice as soon as possible.

Whether in gathering evidence, dealing with medical professionals and insurance companies, negotiating settlements or pursuing a favorable trial verdict, the experienced Pennsylvania anesthesia malpractice attorney Clifford A. Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann is familiar with the law and thoroughly prepared and committed to achieving a just outcome. With our sizeable staff, we offer strength in numbers while providing top-notch personal service. We offer a free consultation to help you investigate the cause and extent of your injury and determine the options you have to secure lifetime benefits and compensation.

Noneconomic Damages: What is Below the Tip of the Iceberg?

If you have suffered from medical or hospital malpractice caused by negligent care, you may be entitled to collect compensation for both economic and noneconomic loss. Economic damages, sometimes called “compensatory damages,” are provided for such items as medical and hospital bills, lost income due to taking time off work, and other so-called “out-of-pocket expenses.” These damages are often referred to as the tip of the iceberg. What is below the iceberg? Noneconomic damages. These noneconomic damages will compensate you for costs that are not easy to calculate, such as pain and suffering, humiliation, disfigurement and, often most importantly, loss of life’s pleasure. These damages are different when a person dies due to negligence. Those damages are governed by Pennsylvania’s Wrongful Death and Survival Act. Spouses may also have a claim, which is called loss of consortium, society and services.

One of the reasons why you need a good and competent lawyer is that oftentimes insurance companies and others may request subrogation, also called reimbursement. There are times when amounts of money have to be repaid to insurers and government agencies. There are also times when this does not have to be done. The rules are extremely complex. The lawyer you hire needs to know what they are doing.

Economic damages may be more straightforward and easier to calculate. However, there is also the question of benefits that an employer may provide and, of course, cost of living increases. There is no noneconomic barrier as such. Pennsylvania does not have formal limits as to what can be awarded in compensatory and noneconomic damages. However, in medical liability cases, the Mcare Act does provide for remittitur and other ways to review a verdict. In a medical liability case, the burden of proof, by a preponderance of the evidence, remains on the injured patient.

Medical malpractice is highly regulated by a complex body of rules and laws. Cliff Rieders, of Rieders, Travis, Humphrey, Waters & Dohrmann, wrote THE BOOK on medical malpractice in Pennsylvania. Medical Malpractice in Pennsylvania is the book that most lawyers and judges use to educate themselves. Cliff Rieders also teaches the course annually given by the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association, and by other organizations. Cliff has spent decades honing his skills and successfully representing Pennsylvania families who have suffered injury or loss due to medical and hospital negligence. We offer a free consultation.

Remember that Cliff Rieders also has a substantial practice in pharmaceutical and medical device litigation. These are also very important areas of the law, requiring great skill and knowledge.

What is Considered Medical and Hospital Malpractice?

According to Pennsylvania law, medical malpractice occurs when a healthcare professional commits medical negligence by violating the generally accepted standard of care that other medical professionals use to treat patients suffering from a disorder or illness. The medical negligence must have directly resulted in the patient’s injuries, so you and your attorney will have to prove that the negligent act caused the damage. One of the most difficult challenges is finding appropriate expert witnesses to testify. It is rare that a treating physician will help a patient, but it does happen. Cliff Rieders has dealt with hundreds of expert witnesses over the years.

What are Noneconomic Damages?

Pennsylvania defines “noneconomic loss” as pain and suffering and other nonmonetary detriment. Noneconomic damages usually fall into the following categories:

  • Pain and suffering: The law says that people who are injured are entitled to be fairly compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress suffered. Compensation is figured from the date of the injury until the date of trial, plus compensation for injuries that are expected to be suffered in the future as a result.
  • Emotional distress and trauma: Seriously injured individuals often suffer great mental anguish, stress, and anxiety, especially if they are unable to work and become dependent on others. They may suffer flashbacks and panic attacks and have other mental issues that arise from the medical malpractice.
  • Embarrassment and humiliation: Injured individuals may suffer present and/or future embarrassment and humiliation due to their reduced ability to function or because they are disfigured, incapacitated, or unable to make decisions and take independent actions due to the medical malpractice.
  • Loss of enjoyment of life: Seriously injured individuals are often deprived of the pleasure of participating in social, athletic, and volunteer activities in the community with family members and friends. They may be unable to engage in a hobby that was pleasurable or enjoy doing things with children and grandchildren. They may suffer each time they attempt to perform the basic activities of daily life due to the medical malpractice.
  • Loss of consortium and companionship: Marriages, friendships and family relationships may be destroyed if individuals can no longer engage in the give and take and responsibilities of marriage, social, and family life.

Remember, there may also be a claim for consortium, loss of society and services for the spouse. Further, in death cases damages are governed by Pennsylvania’s Wrongful Death and Survival Action. There are cases where relatives who are “bystanders,” as the law defines that, may be entitled to damages for infliction of emotional distress. That is a very difficult and problematic area of the law.

How is Compensation Determined?

Since there is no easy way to calculate a dollar amount for what noneconomic damages are worth, the amount of the settlement or verdict will be based on several factors, including:

  • the age of the injured party
  • the type and severity of the injuries or disfigurements
  • how the injury affects the individual – the extent to which they can still perform previous activities and the effects on marriage, family, and social relationships
  • whether the injury is permanent or temporary, and whether there is treatment for the problems
  • the amount and duration of the pain and suffering
  • how the loss of life’s pleasures affects the person involved on a daily basis.

Since Pennsylvania does not have caps on compensatory and non-economic damages, there is no limit on how much a court can award you for these types of damages — if you and your attorney can prove that the damages were a result of the medical malpractice. Pennsylvania does, however, under unusual circumstances, grant remittitur and may reduce a verdict. There certainly are guidelines and rules concerning appropriate damage awards and settlement amounts.

Is There a Statute of Limitations?

The statute of limitations for medical and hospital malpractice claims is two (2) years. Pennsylvania also has something called a “tolling” or “discovery rule.” Under certain circumstances, the statute of limitations may be extended from the time when a person knew or, in the exercise of reasonable diligence, should have known of the relationship between the harm and its cause. This is an extremely complex area of the law. Cliff Rieders has written about it in his book on Pennsylvania Medical Malpractice. Pennsylvania also has a 7-year statute of repose. Likewise, this is a complex issue and does not necessarily extend the statute of limitations but may close the door where the discovery rule applies. A minor has two (2) years after reaching the age of 18 to bring a medical liability action. There is a different statute of limitations for sexual assault. The statute of limitations is one of the most difficult areas of the law. It is important to act quickly and diligently.

Put Your Trust in Us, Contact Cliff Rieders for a Free Consultation

If you or a loved one has suffered losses from medical malpractice, you must act quickly. Due to the statute of limitations and the fact that medical evidence can be destroyed over time, delaying action could mean forever losing your right to seek compensation. It is essential to have a skilled and knowledgeable medical malpractice lawyer who knows the judges, the courts, and the system, especially since noneconomic damages may be difficult to prove.

 

What Do Hospital Rankings Show?

When you go into a Pennsylvania hospital, you expect that you will be safe and treated according to a reasonable standard of medical care. Unfortunately, this is not always the case. Too many hospitals have poor safety records that wouldn’t be tolerated in any other industry. The latest spring 2017 hospital ratings from The Leapfrog Group, giving hospitals a grade of A to F for patient safety, show that 23.5 percent of the 132 Pennsylvania hospitals graded received an A, but seven were graded a D.

Leapfrog, an organization that collects and reports hospital data, states that more than 1,000 Americans die each day from preventable hospital errors. Hospitals given a B rating by Leapfrog had a 9 percent higher risk of avoidable death than A hospitals; C hospitals had a 35 percent higher risk, and the risk in D and F hospitals was 50 percent higher. Pennsylvania hospital safety was ranked a dismal 34th in the nation, down one slot from the previous year.

Leapfrog is only one of many “report card” grading companies. Thomson Reuters, Newsweek, and others purport to rate hospitals. All of those ratings are suspect and depend upon information provided by hospitals themselves and sometimes regulators with faulty information. The Pennsylvania Patient Safety Authority receives more than a quarter million reports a year of incidents and serious events. Clearly, there is underreporting in the Pennsylvania system, especially as to “serious events.” The reason for that is, in Pennsylvania, “serious events” must be reported not only to the Patient Safety Authority and the Pennsylvania Department of Health, but also to the patient or their family. Hospitals do not like patients or their families to learn about “serious events” because the hospitals fear that the patients or their families may take legal action. This has been well known and documented. In Pennsylvania, many hospitals and doctors do not report “serious events” because they erroneously believe that if a patient has been informed about a particular risk, there is no need to report a “serious event” if that risk occurs, regardless of whether the risk occurred due to a preventable medical error or negligence.

Cliff Rieders, a founding and current member of Pennsylvania’s Patient Safety Authority, continues to push the envelope on patient safety and work hard to make sure that the Pennsylvania Patient Safety Authority does its job of making hospitals safer.

When patients suffer harm due to the medical care at a hospital and the hospital is at fault, it can be held financially responsible. If you or a loved one has been injured or someone has died due to hospital negligence, you should seek legal representation to determine if you can be compensated for your loss.

The experienced and compassionate Pennsylvania medical malpractice attorney Clifford Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to hospital negligence. Our deep sense of loyalty to each client drives us to pursue each claim vigorously.

We offer a free consultation to examine the facts of your situation and show you how we can help.

What the Hospital Ratings Mean

Leapfrog claims that it looks at medical errors, accidents, injuries and infections at hospitals and identifies hospitals where patient safety is supposed to be a top priority.

Leapfrog claims to examine both hospital safety and quality. Safety involves lack of harm, avoiding bad events, and creating an environment where preventable medical errors are less likely to occur. Quality means providing efficient, effective, purposeful care and improving the overall care experience.

Again, Leapfrog’s information is only as good as the reports they are able to receive. Hospital reporting of preventable serious events is deficient throughout the United States. It has been written that doctor “ego” is one reason why it is extremely difficult to get reliable information on serious preventable medical errors. For example, in North Central Pennsylvania, reports of serious events is higher than other places in the state when corrected for population size. Why is that? The Patient Safety Authority has never taken a firm position. It is possible that there is more serious event reporting in North Central Pennsylvania, but then again it is also possible that there are more serious medical errors in North Central Pennsylvania.

Leapfrog and other reporters of “health grades” is supposed to consider whether a hospital has a system of strong health care teams. Good teams reduce infection rates, put checks in place to prevent mistakes, and ensure strong lines of communication between hospital staff, patients, and families. Without teams that work well together with good leadership, it is difficult to catch preventable medical errors. The result can be dangerous health care consequences, slower recovery, and even death.

Pennsylvania Hospitals According to the Pennsylvania Patient Safety Authority

The Authority, an independent state agency established under the Medical Care Availability and Reduction of Error (MCARE) Act of 2002, collects and analyzes data reported through its Pennsylvania Patient Safety Reporting System (PA-PSRS) and then provides strategies and lessons learned to healthcare facilities to improve safety and help prevent patient harm.

Under the MCARE Act, healthcare facilities must report Serious Events (events that harm the patient) and Incidents or “near misses” (events that do not harm the patient) to the Authority. Facilities must notify patients or their families when a Serious Event has occurred. The Pennsylvania Department of Health also receives Serious Event reports for its regulatory role.

The Authority initiated statewide mandatory reporting in June 2004.

All reports are confidential and non-discoverable. In 2007, MCARE was amended (Act No. 2007-52: Reduction and Prevention of Health Care-Associated Infection and Long-Term Care Nursing Facilities) for nursing homes to report healthcare-associated infections (HAIs) as Serious Events to the Authority.

During 2016, more than a quarter million events were reported through the Pennsylvania Patient Safety Reporting System (PA-PSRS), with an increasing percentage of reports submitted as Incidents, rather than Serious Events. The category Error related to Procedure/ Treatment/ Test continues to be the most common category of Incident reports, and Complication of Procedure/ Treatment/ Test the most common category of Serious Events.

Pennsylvania Patient Safety Authority 2016 Annual Report (footnotes omitted). The above material from the Patient Safety Authority provides some guidance, but the entire report, which is online, should be consulted. http://patientsafetyauthority.org/PatientSafetyAuthority/documents/AR2016.pdf

Standards for Hospitals

Hospitals are required to uphold proper standards of care for their patients. The requirements mean hospitals must:

  • Use reasonable care in the maintenance of safe and adequate facilities and equipment
  • Select and retain only competent physicians
  • Oversee all persons who practice medicine within its walls as to patient care
  • Formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients.

When Can Patients Sue a Hospital for Negligence?

Whether a hospital will be liable for negligence depends mostly upon whether the hospital acted reasonably with respect to the medical services provided. When a patient suffers harm from substandard medical services, the hospital is responsible if it knew or should have known about the defects or procedures that were a factual cause in bringing about the harm.

In Pennsylvania, hospitals can be liable not only because of vicarious liability but also because of corporate liability. In other words, a hospital can be liable where there is an implied holding out that somebody is one of their employees or because they are an actual employee, and that person was negligent or failed to uphold a standard of due care. A hospital can also be liable for its own negligence.

The situation is often complicated, but no matter where you are in Pennsylvania, Attorney Cliff Rieders can provide the answers you need. Cliff Rieders wrote the book on medical malpractice in Pennsylvania.

Trust Our Attorneys for Honest Answers

Medical malpractice law is highly regulated by a complex body of rules and laws. Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced Pennsylvania medical malpractice attorney Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann is familiar with the law and thoroughly prepared and committed to achieving a just outcome. With our sizeable staff, we offer strength in numbers while providing top-notch personal service.

If you or your loved one has suffered from hospital malpractice, do not delay. Consult Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann by calling 1-800-326-9259 for a free consultation, or use our online contact form.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.

Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice. He is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. He is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.

National Patient Safety Awareness Week

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 be safe places and care for patients according to the highest medical standards, but this does not always happen. According to the American Association for Justice, one out of every three hospital patients will fall victim to a medical error during their hospital stay, and these mistakes cost nearly 120,000 patients’ lives each year.

Pennsylvania’s Patient Safety Authority collects a third of 1 million reports of incidents and serious events a year. Yet, only about 400 lawsuits are filed. This is less than one-half of 1%. It is absolutely astounding that so few people sue, given the problems with preventable medical errors in hospitals. That does not even include what goes on in doctors’ offices.

If the hospital or doctor is at fault and the patient suffers complications due to the care at their facility, that institution can be held financially responsible. If you or a loved one has suffered because of medical complications, you need legal representation. The experienced medical/hospital malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. Our deep sense of loyalty to each client drives us to pursue each claim vigorously.

Many cases involve medical devices and pharmaceuticals. Cliff Rieders is extremely knowledgeable in that field as well. He has written the book that virtually every medical/hospital malpractice attorney in the state uses. Cliff teaches the subject to the most seasoned attorneys in the state at seminars and has authored many briefs for the courts dealing with medical, hospital and pharmaceutical issues.

We offer a free consultation to examine the facts of your situation and show you how we can help.

Medical Facilities Are Held to Standards

Medical facilities must act reasonably and uphold proper standards of care and safety for their patients. Typically these standards are national standards, as in the case of board certified doctors. Standards include:

  • Maintaining safe and adequate facilities and equipment.
  • Selecting and retaining only competent physicians.
  • Overseeing all persons who practice medicine within its walls as to patient care.
  • Having and enforcing adequate rules and policies to ensure quality care for patients.

How National Safety Awareness Week Can Help

According to the American Hospital Association (AHA), National Safety Awareness Week should be a time hospitals focus on and put together information on projects that will improve the safety of patient care. Suggestions include:

  • The use of clinical pharmacists on rounds, computerized physician order entry, or unit dosing to reduce the chance of a patient getting the wrong drug or the wrong dose of a drug.
  • Using the “sign your site surgery” program to prevent wrong-site surgery.
  • Improving patient education process and materials to ensure patients know how to continue their treatment to promote complete recovery once they have been discharged.
  • Promoting any of the projects patient safety committees have undertaken to address issues of concern relative to patient safety, such as medication errors and infections.

The AHA believes that patient safety takes the involvement of everyone – consumers, physicians, hospitals and other providers of care, and manufacturers – to prevent errors and improve the quality of care for all.

Pennsylvania’s Patient Safety Authority

The Pennsylvania Patient Safety Authority’s latest report to the legislature can be found on its website. Cliff was on the committee that helped to prepare the report and has many insights as to how Pennsylvania can be made a safer place for patients. It is very important that we “report card” hospitals. Cliff believes that information about hospitals and infection rates should generally be made aware to the public so that patients can choose the safest hospitals. Much of this information is available through the Health Care Quality Containment Council and the Social Security Administration. However, the information is hard to find and requires hours of work on the computer. Patients should be able to know more about the hospitals and doctors, infection rates, and other problems that are encountered in hospitals.

The Pennsylvania Patient Safety Authority has initiated a number of collaboratives, but unfortunately they are sometimes like the “fox guarding the hen house.” Whistleblower protection must be enhanced for honest employees of doctors and hospitals. Patients must be able to report problems and get prompt answers. Benchmarks must not only be established but also must be monitored in connection with Act 52, designed in Pennsylvania to cut down on the horrific rate of unnecessary hospital infections.

What Activities are Going On?

The NPSF is having its 20th anniversary in 2017, and this is the 15th year that the organization has led Patient Safety Awareness Week. During the week there will be activities including a free webcast with major speakers addressing the following themes:

  • What Patients Want (and Need) to Know – This will be broadcast on Tuesday, March 14, from 1:00 to 2:00 pm Eastern Time, NPSF (@theNPSF). The NPSF will host a Twitter Chat on the topic. They will be joined by governmental, advocacy, and professional organizations and individuals to share tips, resources, and tools on patient safety. You may participate by using the hashtag #psaw17chat.
  • The Voice of the Patient and the Public – Broadcast on Wednesday, March 15, from 2:00 to 3:00 PM Eastern Time. The NPSF will host a complimentary webcast, with Dr. Gandhi as moderator and a panel of speakers including Marshall Allen, reporter for ProPublica; Rosemary Gibson, senior advisor at the Hastings Center; and Martin J. Hatlie, JD, president and CEO of Project Patient Care. You can register online for this free program at http://bit.ly/psawweb17.
  • Throughout the week, NPSF is encouraging a demonstration that “We are all patients.” You can participate by posting photos of yourself in hospital gowns or in patient care settings and using the hashtag#WeAreAllPatients.

The NPSF is also urging health professionals and members of the public to take a pledge in support of patient safety. If you wish to participate in Patient Safety Awareness Week, visit the website, www.unitedforpatientsafety.org, to take the pledge, share plans for the week, get ideas for activities, download campaign materials, or honor a loved one touched by medical harm.

To help plan for the week, the NPSF has suggestions for medical facilities including:

  • Allowing civic groups and residents to meet the staff, visit emergency rooms, and see your facility.
  • Offering a suggestion box for patients and families and encouraging them to share suggestions for improvement.
  • Submitting editorials, first-person stories, and op-ed pieces for local papers and newsletters.
  • Playing the educational video or Ask Me 3® video in patient waiting rooms, exams rooms and other locations for staff and patients.

For more information and activities visit npsf.org/psaw

Trust Our Firm for Honest Answers and Contact Us For Assistance

If you or your loved ones have had any problem with unsafe patient practices and suffered injury as a result, the experienced Pennsylvania medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann can help determine if you may be entitled to compensation. Medical malpractice law is complicated and highly regulated by a complex body of rules. Whether in settlement negotiations or pursuing a favorable trial verdict, our attorneys know the law and are thoroughly prepared and committed to achieving a just outcome. We are leaders in the field and are known for settling cases efficiently and litigating cases with maximum compensation. With our professional staff, we offer strength in numbers while providing top-notch personal service.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all medical malpractice matters. We are dedicated to providing the legal support you need to have a successful case, and we offer you experience, knowledge, compassion, and a long history of results.

If you or your loved one has suffered from medical malpractice, do not delay. Consult Rieders, Travis, Humphrey, Waters & Dohrmann by calling 800-326-9259 for a free consultation, or use our online contact form.

Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.

Rare Blood Cancer May Be Linked to Breast Implant

Recent research has shown that breast implants might have life-threatening side effects, including an increased risk of cancer. The U.S. Food and Drug Administration (FDA) has concluded that breast implants, whether composed of saline or silicone, may be linked to Anaplastic Large Cell Lymphoma (ALCL), a cancer of the immune system.

As of Feb. 1, 2017, the FDA had received 359 reports of breast implant-linked cancers. Nine of these patients died. As a result, the FDA has issued a breast implant warning in the form of a safety communication on its web site.

If you or a loved one has suffered because of medical problems due to a breast implant or any medical device, pharmaceutical, or doctor/hospital medical malpractice, you may be entitled to financial compensation. The experienced medical malpractice attorney Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to medical/hospital negligence and faulty devices and problematic pharmaceuticals. We offer a free consultation. Our experience is on your side.

About ALCL

ALCL is not a cancer of the breast tissue. It is a rare, non-Hodgkin’s lymphoma that can appear in lymph nodes, skin, bones, soft tissue, lungs, or the liver. In the case of breast implants, the cancer occurs in what’s called the “capsule” behind the implant. This capsule is a fibrous scar that normally develops around the implant, separating it from the breast tissue and chest muscles.

Symptoms of implant ALCL in the breast area include:

  • Pain
  • Lumps, hardening, or masses in and surrounding the breast area
  • Collection of fluid
  • Unbalanced changes in breast size
  • Swelling and redness.

History

The FDA first reported on a connection between breast implants and ALCL in 2011. At the time, there were no reports of deaths from the disease, and there were too few cases to conclude anything beyond a “possible association between breast implants and ALCL.”

Since then, the Plastic Surgery Foundation has developed a reporting system specifically for doctors to report cases of the disease in implant patients. Last year, the World Health Organization classified breast implant-associated ALCL as a separate diagnosis, and Australia and France began tracking the connection.

Studies have found that textured implants have much greater risk than smooth ones. Of the 231 reports to the FDA that contained information about the implant, 203 had textured surfaces compared to 28 that were smooth.

One study estimated that the lifetime chance of developing ALCL from textured implants is 33 per 1 million persons. That is about 65 times higher than the overall risk of developing ALCL if you do not have breast implants.

Most cases of ALCL have been described as slow-growing and treatable when detected early.

Why Textured Implants?

In the United States, there are two types of breast implants that are approved: saline or silicone gel-filled implants. All have an outer layer that is made of silicone, but they have different shapes, sizes, thickness, and textures.

While most surgeons use both kinds, some surgeons feel that a textured implant prevents the build-up of scar tissue. Also, textured implants tend to be stiffer and provide a more distinct shape.

The FDA says it does not know why the risk appears to be higher with textured implants and that more research is necessary. The American Society of Plastic Surgeons (ASPS) has an ongoing registry with the FDA where doctors can report suspected cases of ALCL from breast implants in order to learn more.

Some research has suggested that textured implants are more likely than smooth implants to develop a bacterial coating, which may increase the risk of infection, cancer, or implant failure. However, the link is not definitive.

What to Do

According to the American Society of Plastic Surgeons, breast implants are the top cosmetic surgery performed in the U.S., with 290,467 procedures in 2016. If you are considering getting implants, you should have a discussion with your surgeon about the risks and benefits of textured- and smooth-surfaced implants. Make sure that your plastic surgeon is board certified by the American Board of Plastic Surgery. Visit FDA’s Breast Implants website for additional information.

If you already have breast implants, you should regularly examine your breasts for any changes and get routine screenings such as mammograms or MRIs. If you notice any changes, contact your doctor immediately.

If you have silicone gel-filled breast implants, you should get periodic magnetic resonance imaging (MRI) to detect ruptures. The FDA states that you should have the first MRI three years after implant surgery and every two years thereafter.

Be aware of the fact that the FDA does not consider breast implants to be procedures that last a lifetime, but only 20 to 30 years. The FDA warns that the longer a woman has breast implants, the higher her chance for complications and further surgeries.

If you do develop cancer, removing the implant can help. However, treatment with chemotherapy and/or radiation may be necessary, and there are patients who have developed more aggressive cancers.

Litigation

While so far there have been no breast implant lawsuits or breast implant class actions, MDL or individual claims related to ALCL, this could change as new findings and information accumulate. Allergan and Mentor (a Johnson & Johnson division) control half of the breast implant market. The FDA is looking into requiring the two companies to conduct more safety studies and is considering changing breast implant labeling requirements.

If you have or had breast implants and experienced cancer or other problems such as implant rupture, leakage, scarring around the implant, or infection, you may be eligible for compensation for the harm you have suffered. In addition, if a surgeon and/or medical team have been negligent to the point that serious injury or wrongful death has occurred, there may be a basis of a lawsuit as well.

As in any medical/hospital malpractice case, there are so many factors involved that you should consult an attorney. Medical/hospital malpractice law is highly regulated by a complex body of rules. For a successful medical malpractice claim, there is much work to be done on behalf of the patient. It is crucial to have a knowledgeable, skilled medical/hospital malpractice attorney.

Our Experience Is On Your Side.

If you or someone you love has been injured by a breast implant or other dangerous medical product or procedure, including pharmaceuticals and vitamin supplements, the experienced and compassionate Pennsylvania medical malpractice attorney Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann can help. Our deep sense of loyalty to each client drives us to pursue each claim vigorously and get you the settlement you deserve. With our staff, we offer strength in numbers while providing top-notch personal service.

Dangerous Drug Combinations

What happens when you become extremely ill after taking medicine your doctor ordered? Patients have every expectation that the medications prescribed for them will be beneficial and help get them well; but all too often, drugs — and their interactions with other medications the patients are taking — wind up making them more sick.

According to the Centers for Disease Control and Prevention (CDC), pharmaceutical drugs kill over 40,000 people each and every year. Studies highlighted by the CDC estimate that more than 50% of all the drugs marketed to the American consumer have side effects that injure people, in spite of testing and FDA regulation.

Sometimes, it is a new drug that ultimately proves defective or dangerous, but also there are times doctors or pharmacies fail to recognize that drugs which may be safe when prescribed on their own can become dangerous or even deadly in combination with other medications.

Consider what happened when a Chicago Tribune reporter walked into an Evanston CVS pharmacy with two prescriptions: one for clarithromycin, a common antibiotic, the other for simvastatin, an anti-cholesterol drug. Each drug is relatively safe when taken alone, but taken together they can cause a severe breakdown in muscle tissue and lead to kidney failure and death.

The pharmacist never warned him of the dangerous interaction of these drugs. Neither did the pharmacist when a reporter presented prescriptions for a different pair of drugs that dangerously interact.

Cliff Rieders, of Rieders, Travis, Humphrey, Waters & Dohrmann, has handled cases against pharmacies and doctors where a prescription or the dosage was wrong or inappropriate, causing harm to patients. Cliff Rieders wrote the book on medical malpractice utilized in Pennsylvania. Cliff teaches a course on medical malpractice to lawyers throughout the state, and is a founding member of Pennsylvania’s Patient Safety Authority. Rieders is a nationally Board Certified Trial Advocate.

Reasons for Pharmaceutical Problems

Unfortunately, pharmacists are often rushed and under pressure to make profits, and drug manufacturers sometimes rush drugs to market without adequate testing. Driven by the profit-motive, companies have even hidden clinical evidence that a drug may have problems in order to gain the U.S. Food and Drug Administration (FDA)’s approval. Side effects may sometimes take years to emerge, so people may be injured or die before the FDA recognizes dangerous side effects that outweigh benefits and finally pull drugs from the shelves. Since drug companies often offer perks to doctors who prescribe their medications, especially new ones, patients may be prescribed a more expensive drug or one that has more risks just because the doctor receives a payment for promoting that medication.

If you or a loved one has been injured from side effects of medications or their interactions, you may be entitled to compensation for injuries and other losses. Unfortunately, people who suffer serious side effects may not realize the medication or combinations of medications are causing the problems. As a result, they often are not aware they may have a pharmacy malpractice case until the time limits for filing have passed. So if you even suspect you have a pharmacy medical malpractice case, you should contact an attorney immediately.

The seasoned Pennsylvania pharmaceutical medical malpractice attorneys at Rieders, Travis, Humphrey, Waters & Dohrmann, are leaders in the field and are known for settling cases efficiently and litigating cases to obtain maximum compensation. If you have suffered any type of drug injuries, including product liability or medical malpractice lawsuits against drug companies, prescribing doctors, or pharmacies, we are here to help. We offer a free consultation, so contact us today to learn your legal options.

Common Medications Involved in Lawsuits

Drug manufacturers have certain immunities in connection with the sale and promotion of drugs. Pharmaceutical manufacturers often cannot be sued under state law because of a doctrine called “preemption.” The pharmaceutical manufacturers may be sued for failure to warn, warranty problems, and, in rare occasions, because a drug is dangerous for any reasonable purpose. Generally speaking, design flaws or the fact that drugs and pharmaceuticals could have been made better, are not a reason to bring a claim. Many of the cases that can be brought involve multi-district litigation, which can have very complicated rules.

Vitamin and dietary supplements are different. The regulation of the FDA is much less. Manufacturers of those products, which can also be very dangerous alone or in combination, can be sued in products liability actions under a variety of theories.

Doctors and pharmacists are held to professional standards and may be liable for negligence in prescribing and dispensing medications and combinations of medications.

Some drugs and pharmaceuticals have caused so many injuries that thousands of lawsuits, sometimes called mass tort litigation, but commonly known as multi-district litigation, have been filed against manufacturers. Examples include:

  • Abilify
  • AccutaneActos
  • Crestor
  • Dostinex
  • Paxil
  • Pradaxa
  • Seroquel
  • Topamax
  • Vioxx
  • Yaz Yasmin

If You Have Suffered Serious Side Effects or Injuries From Unsafe Medicines and Their Combinations, Our Attorneys Are Here to Help

Dangerous drug cases are very complicated, so it is essential to have experienced attorneys and legal staff on your side. Whether in settlement negotiations or pursuing a favorable trial verdict, the seasoned Pennsylvania personal injury attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann are familiar with the law regarding dangerous drugs and their combinations, and we are thoroughly prepared and committed to achieving a just outcome. With our sizeable staff, we offer strength in numbers to do research and to pursue your interests in court, while providing top-notch personal service.

If you or your loved one has suffered injury from pharmaceuticals or any other type of medical malpractice, time is of the essence, so don’t delay.

Remember, there are major differences between pharmaceutical cases involving FDA approved drugs, medical device cases, and vitamin supplement or dietary supplement litigation. Each of these has very particular and specific rules.

The following is an example of some of the multi-district litigation that we are accepting cases on now:

  • IVC Filters
  • Talcum powder / ovarian cancer
  • Bair Hugger warming devices
  • Invokana
  • AbbVie’s AndroGel, Auxilium’s Testim, Eli Lilly’s Axiron, and Actavis’s AndroDerm (Testosterone drugs)
  • Power morcellators

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all medical malpractice matters. We are dedicated to providing the legal support you need to have a successful case, and we offer you experience, knowledge, compassion, and a long history of results.

MEDICAL MALPRACTICE-MENINGITIS DEATH

Tillery v. Children’s Hospital of Philadelphia, 2017 Pa. Super. LEXIS 134 (February 28, 2017) Platt, J.  Plaintiff need not exclude every possible explanation of an accident.  It is enough that reasonable minds are able to conclude that the preponderance of the evidence shows that the defendant’s conduct was a substantial cause of harm to the plaintiff.  Plaintiff brought forth sufficient evidence and experts that diagnosis of child’s meningitis from which child was seriously injured was not properly diagnosed by CHOP.  The opinions of plaintiff’s experts were not speculative but rather based upon the record.  CHOP mischaracterized plaintiff’s malpractice claims.  Plaintiff experts testified that the hospital failed to diagnose minor plaintiff’s condition in a timely manner which resulted in his injuries.  Therefore, the trial court properly found that a two-schools-of-thought instruction would have been inappropriate.  Evidence was permitted concerning CHOP’s website.  The defense opened the door to the testimony with respect to the website.  In cross-examining plaintiff’s expert, defense counsel brought up a number of texts and articles including some written by highly ranked CHOP physicians regarding the diagnosis and treatment of bacterial meningitis that ostensibly refuted plaintiff’s expert’s position that a work-up included antibiotics were necessary in minor plaintiff’s case.  To combat this presumption, plaintiff’s counsel offered up evidence of a CHOP website which, in 2013, stated that effective treatment of bacterial meningitis involves early antibiotic treatment.  The evidence was introduced to show the jury that the conclusions of several CHOP doctors in their articles did not necessarily represent the beliefs of all doctors regarding the proper treatment of bacterial meningitis, as CHOP’s own website was later inconsistent with their conclusions.  This was permitted.  The court also disagreed as to whether plaintiff’s expert was qualified to testify.  The Mcare Act guides the determination.  Plaintiff’s expert had extensive knowledge and experience with respect to the results of a failure to diagnose bacterial meningitis.  He was board certified in otology and laryngology at Harvard Medical School.  The court did not find the verdict shocked its conscience or required remittitur.  $7.5M nonecomomic damage award for profound deafness and brain-related injury was not unreasonable.  The court did not err in denying request for remittitur.  As to future medical payments, the court interpreted Section 509 of the Mcare Act.  The hospital relied upon Sayler v. Skutches, 40 A.3d 135 (Pa. Super. 2012), appeal denied 54 A.3d 549 (Pa. 2012) to claim that the future medicals should have been reduced to present value pursuant to 509 of the Mcare Act.  The court disagreed with CHOP’s interpretation of Sayler.  The future medical damages award accrued to the time of decedent’s death should be reduced to present value only to determine the amount of attorney’s fees and only for that purpose.  Awards of future medical expenses are not to be reduced to present value.  The Mcare Act did not change the law in that respect.  Delay damages should also be awarded.

MEDICAL MALPRACTICE-ARBITRATION

Cardinal v. Kindred Healthcare, Inc., PICS Case No. 17-0149 (Pa. Super. Jan. 27, 2017) Lazarus, J.  Kindred Healthcare, Inc. appealed from an order entered in the Court of Common Pleas of Berks County, overruling Kindred’s preliminary objections to the complaint.  The Superior Court reversed.  Cardinal claimed that the agreement to arbitrate was signed under duress or by someone without proper legal authority.  Arbitration agreements are a matter of contract.  A signed document gives rise to the presumption that it accurately reflects the state of mind of the signing party.  To rebut this presumption, the challenger must present evidence of mental incompetency which is clear, precise and convincing.  Mere weakness of intellect or old age is not enough.  The court found that the burden was not satisfied to upset the arbitration agreement.  The record does not contain clear and convincing evidence that decedent lacked the capacity to execute the arbitration agreement.  Unconscionability does not require that the arbitration agreement be ignored in this case.  The arbitration agreement had bold-faced notification stating that the agreement is not a condition of admission or continued residence in the facility.  Kindred and decedent entered into a binding agreement to arbitrate which must be enforced by the trial court.

Intubation Injury

If you are in a medical emergency where you cannot breathe, intubation is a procedure that can save your life. However, if not done properly, quickly enough or with the right equipment, intubation can cause significant injuries and even death. Problems can easily arise if a medical professional is negligent when performing the procedure, or if the professional fails to intubate the patient when necessary.

We handled a case which resulted in a multimillion-dollar settlement where a physician did not properly or timely intubate a young patient, did not use the right equipment, and, in fact, did not seem to know how to perform the emergency procedure. In fact, the doctor had to call in EMTs to help him.

When an intubation injury or death is due to negligence on the part of the hospital or medical professional, you may be entitled to compensation. If you have suffered serious harm, or a loved one has suffered harm or death due to negligent intubation in Pennsylvania, the experienced medical malpractice attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann can help. We have spent decades honing our skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. Our deep sense of loyalty to each client drives us to investigate the facts of your case and pursue each claim vigorously.

Cliff Rieders is a founding member of Pennsylvania’s Patient Safety Authority. He wrote the book on medical and hospital malpractice in Pennsylvania. Rieders is nationally Board Certified and teaches the subject to lawyers throughout the state on behalf of a number of organizations. Rieders has helped to write uniform laws for the 50 states through the American Law Institute, where he is a life member. The attorney has achieved many remarkable results.

Contact us at 800-326-9259 or by using our online contact form for a free consultation.

What is Intubation?

‘Intubation’ involves inserting a plastic flexible endotracheal breathing tube into the trachea (windpipe) to maintain an open airway and help a patient breathe. The tubes allow patients to be hooked up to a ventilator, or breathing machine, which will keep them breathing. This is done for patients who cannot breathe on their own, who are going to have a surgical procedure, or for the purpose of administering certain drugs. The procedure is frequently performed in emergency situations on critically injured, ill or anesthetized patients to push air into the lungs and to prevent the possibility of airway obstruction.

Intubation is invasive and uncomfortable, so it is usually performed with general anesthesia. Intubation must be done quickly and correctly, or the patient could suffer serious consequences. Unfortunately, there are times when intubation fails or when the tubes are placed incorrectly, and damage occurs. It takes only 4 minutes after oxygen is cut off for brain damage to occur.

A competent physician or health care provider should be able to quickly intubate a patient under a variety of challenging circumstances.

What Are Possible Complications?

The American Society of Anesthesiologists defines a difficult intubation as requiring more than three attempts, in the presence or absence of tracheal pathology. Anesthesia events are routinely reported to the Pennsylvania Patient Safety Authority. Those events are not necessarily negligence, and the circumstances have to be examined in each situation.

Damages may occur due to physical trauma, including tooth damage, damage to the vocal chords, larynx or esophagus, nerve damage, and puncture or tearing of the chest or throat from misplaced tubes, which may lead to lung collapse. Potentially fatal complications include aspiration (breathing in) of stomach contents, which can result in a severe and sometimes fatal pneumonia.

Other damages may include:

  • Brain damage from lack of oxygen
  • Infection, including pneumonia
  • Stroke
  • Bleeding
  • Painful recovery
  • Acute Respiratory Distress Syndrome (ARDS)
  • Death.

What Constitutes Negligent Intubation?

Doctors, paramedics and other health care professionals must be trained and skilled in intubation techniques so they do not put their patients at risk. If intubation is necessary, the professionals must act quickly since blocked airways can lead to permanent brain damage. Medical professionals must exercise reasonable care in deciding when and how to intubate and make sure the tube is placed correctly.

Negligence acts from intubation include:

  • Improperly placing the tube. If the tube is placed in the esophagus instead of the trachea, oxygen can enter the stomach and cause cardiac arrest, ARDS, brain damage, and even death.
  • Damaging tissue in the mouth, esophagus, or around the vocal cords. If the tube is inserted roughly, it can bruise and tear tissue. If equipment is not sterilized properly, it can cause infection.
  • Failure to notice the tube has become dislodged or disconnected
  • Failure to note the potential for complications due to the presence of unusual airway anatomy or other variables
  • Not deciding to intubate in a timely manner or not intubating at all when necessary.
  • Leaving intubation to a medical student or other health care employee who is not qualified
  • Failure to notice warning signs that the patient is having problems and something went wrong with the intubation. Warning signs include difficulty breathing and swallowing, pain in chest, unusual sounds when breathing, and infection.

Medical Professionals Must be Accountable

When negligent intubation occurs, doctors and hospitals are held accountable if injury or a wrongful death results. For example, we achieved a multimillion-dollar result for a young child who died because of a botched intubation. In that case, not only were significant monetary damages paid, but the hospital was required to undertake training and evaluation from experts in the field.

Trust Our Firm for Honest Answers

Medical malpractice law is highly regulated by a complex body of rules. Whether in settlement negotiations or pursuing a verdict, Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann is familiar with the law with respect to negligent intubation. We have handled a wide variety of medical liability negligence cases. With our sizeable staff, we offer strength in numbers while providing top-notch personal service.

If you or your loved one has suffered injury from negligent intubation, do not delay. Contact Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling 800-326-9259 or by using our online contact form.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all medical malpractice matters.

We are dedicated to providing the legal support you need to have a successful case, and we offer you experience, knowledge, compassion, and a long history of results.

Talcum Powder & Cancer

Could the talcum powder you have been using to feel fresh and dry cause cancer? Yes, say cancer victims in the more than 2,000 lawsuits filed against Johnson & Johnson, makers of the products Johnson’s Baby Powder and Shower to Shower. The plaintiffs allege that Johnson & Johnson knew about the cancer risk, but did not adequately warn consumers.

It is estimated that as many as 10,000 women in the United States are diagnosed with ovarian cancer resulting from the use of talcum powder each year. So far this year, at least three talcum baby powder ovarian cancer cases have gone to trial, resulting in multimillion-dollar damage awards. The most recent came in October when a Missouri jury awarded $70 million in damages to Deborah Giannecchini, who was diagnosed with ovarian cancer in 2012 following years of using talcum powder for “feminine hygiene.”

The Problem With Talcum Powder

Cancer Cells & TalcTalcum powder is made from talc, a mineral made up mainly of magnesium, silicon, and oxygen. People use talcum powder to absorb moisture and cut down on friction to help keep skin dry and prevent rashes. It is often used in baby powder and adult body and facial powders.

Some talc naturally contains asbestos, which is known to cause lung cancers when inhaled. Therefore, U.S. talcum products have been asbestos-free since the 1970s. However, even talc without asbestos is dangerous. There is increasing evidence that talcum powder increases the risk of ovarian cancer in women who use the product for feminine hygiene by applying it in the genital area.

What Studies Show

Laboratory and human studies on talc have shown the following:

  • According to the International Agency for Research on Cancer (IARC),talc with asbestos is classified as “carcinogenic to humans.”
  • Due to lack of data from studies, IARC classifies inhaled talc without asbestos as “not classifiable as to carcinogenicity in humans.”
  • However, based on limited evidence from human studies of a link to ovarian cancer, IARC classifies the perineal (genital) use of talc-based body powder as “possibly carcinogenic to humans.”

According to the International Journal of Gynecological Cancer, frequent talcum powder use on the female genital area increases the risk of ovarian cancer by 30% to 60%.

A lawsuit filed by Alme Kennedy in the U.S. District Court for the Northern District of Georgia on November 18 states that “overwhelming scientific and medical evidence has established a causal link between talcum baby powder and ovarian cancer.” The suit states that as early as 1961, research showed that talc can move from the exterior of the genital area to the ovaries of women, and studies have found talc particles “deeply embedded” in ovarian tumors. It points to a statistically significant increased risk of ovarian cancer following genital talc use.

Why Johnson & Johnson May Be At Fault

In an article in the New York Times, manufacturers admitted to being aware of a study that concluded women were three times more likely to develop ovarian cancer after daily use of talcum powder in the genital area.

During case investigations, documents were found showing that Johnson & Johnson were made aware of the risks of talcum powder as early as 1982. Still, the company did not change the formula, inform the medical community, or even warn consumers of the risk.

What is Happening With the Lawsuits

The $70 million Missouri settlement was awarded after the jury found that Johnson & Johnson was liable for the injuries the plaintiff suffered as a result of using the company’s talcum powder products. This is the third large verdict this year, with $72 million and $55 million awards in separate verdicts. Johnson & Johnson is appealing all three verdicts against it.

In the Missouri case, the jury ordered Johnson & Johnson to pay $2.5 million for compensatory damages and another $65 million in punitive damages. In addition, Imerys Talc America, a supplier included as a co-defendant in the case, was ordered to pay $2.5 million in compensatory damages.

Currently, a panel of federal judges ordered that all talcum powder lawsuits filed at the federal level will be consolidated before one judge, District Judge Freda Wolfson, in the District of New Jersey. If settlements are not reached during the coordinated proceedings, each case may go back to the U.S. District Court where it was originally filed for a separate trial date in the future.

Contact Us For Honest Answers About Talcum Powder Cancer Lawsuits

If you or a family member has been diagnosed with ovarian cancer after using talc-based powder products, you may be entitled to compensation for medical care, pain, suffering, and loss.

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We offer a free telephone consultation to examine the facts of your individual situation and determine the best option for you. Don’t delay. Consult us today by calling 1-877-962-9411, or use our online contact form.

Frey v. Potorski, 145 A.3d 1171 (Pa. Super. 2016)

Opinion by Fitzgerald, J.:  Appellant, Mary Jane Frey, administratrix of the Estate of Richard John Frey (“Decedent”), appeals from the judgment entered in the Luzerne County Court of Common Pleas in this medical malpractice action.  Appellant claims the trial court erred in allowing a hematologist, Henry M. Rinder, M.D., to testify regarding the standard of care for Appellee, Robert Potorski, M.D., an interventional cardiologist.  We hold that the trial court properly determined that Dr. Rinder was qualified to testify under the Medical Care Availability and Reduction of Error Act (“MCARE Act”), 40 P.S. § 1303.512, and any error in the admission of his testimony was harmless in light of the substantially similar testimony of another qualified expert regarding the standard of care.  Therefore we affirm.

Heart Surgery Infections

If you have undergone open heart surgery in recent years, you may be at risk of a life-threatening infection linked to a medical device used during the operation.  According to the Centers for Disease Control and Prevention (CDC), patients who have had valve implants or prosthetic product implants are at risk of infection with a bacterial species of nontuberculous mycobacterium (or NTM).  It is estimated that 600,000 patients are at risk, and there have been confirmed infections in 28 heart surgery patients in the U.S.

The product associated with these infections is a heater-cooler device that is commonly used during open-heart surgery.  The CDC reports that more than 250,000 heart bypass procedures are performed every year in the U.S., and of these operations, 60% use the problem device. At least 12 patient deaths have been reported worldwide, according to the Food and Drug Administration.

Unfortunately, these infections are occurring close to home.  Pennsylvania’s Department of Health has confirmed 21 cases of infections related to the machines, and the infection is now linked to least seven deaths in the state.

WellSpan reported in October that about 1,300 patients who had open-heart surgeries at their York Hospital between October 1, 2011, and July 24, 2015, may have been exposed to the infection – and this was likely a contributing factor in five deaths.  Penn State Milton S. Hershey Medical Center admitted that about 2,300 patients who had open-heart surgery there between November 5, 2011, and November 5, 2015, may have been infected. Two deaths are possibly linked to the machine.

When unfortunate situations like this occur, the patient and family suffer terrible consequences. If you or someone you love has experienced infections after having open-heart surgery, you should seek legal representation.  The experienced medical malpractice attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann have spent decades honing their skills and successfully representing Pennsylvania families who have suffered injury due to medical negligence. Our deep sense of loyalty to each client drives us to pursue each claim vigorously and get you the compensation you deserve.

What Created the Problem?

The source of a potential infection has been identified as the Stöckert 3T heater-cooler device, produced by LivaNova PLC. These devices are commonly used during cardiac surgical procedures to regulate a patient’s temperature by warming and cooling blood and organs. The problem arises if devices become contaminated with nontuberculous mycobacterium, usually during manufacture. During surgery, bacteria can escape from the exhaust vents and blow onto a patient, causing infection.

What are Symptom of Infection?

Symptoms of infection with NTM include:

  • Joint pain
  • Fever
  • Weight loss
  • Death, in serious cases
  • Loss of energy
  • Redness
  • Heat and/or pus around the surgical incision
  • Night sweats
  • Joint and/or muscle pain.

Unfortunately, symptoms following exposure through surgery may take months or years to develop, so a diagnosis can be missed or delayed.  Diagnosis is difficult because there is no test to determine exposure to the bacteria; it is necessary to have the bacteria cultured in a laboratory. The bacteria grow slowly, so the CDC says it can require up to two months to rule out infection.

NTM infections can usually be treated successfully once diagnosed. However, it can take more than a year of antibiotic treatment to cure the infection.

Class Action Lawsuits

In February 2016, a class action complaint in Pennsylvania was filed against LivaNova PLC, the company that produces the device.  Patients in the suit had open heart surgeries at WellSpan York Hospital and Penn State Milton S. Hershey Medical Center.  There have been additional similar lawsuits against LivaNova for procedures performed at these hospitals, as well as at Greenville Health System Hospital in Greenville, SC.  The cases in Greenville are not counted in the number of cases identified by the CDC since they have not been conclusively linked to the device.

The class-action lawsuit is seeking aggregate damages in excess of $5 million.  Also, two York County residents have filed the lawsuit in federal court against LivaNova PLC.  The plaintiffs want the devices declared unsafe and LivaNova held responsible for the cost of monitoring the patients.

Currently, both hospitals are offering free screening and treatment to exposed individuals.  The hospitals claim they have replaced all of the devices, but the plaintiffs say that other hospitals in Pennsylvania continue to use them.  LivaNova has issued revised cleaning and disinfecting protocols for the device

Contact Us For Help

If you or someone you love had heart surgery and contracted a hospital-acquired infection that resulted in serious illness, injury or death, you need the help of experienced counsel.

Medical malpractice law is highly regulated by a complex body of rules. Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced Pennsylvania medical malpractice attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann are familiar with the law and thoroughly prepared and committed to achieving a just outcome.  With our sizeable staff, we offer strength in numbers while providing top-notch personal service.

If you or your loved one has suffered from infections contracted at a hospital or other medical facility, do not delay. Consult Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling 800-326-9259 for a free consultation, or use our online contact form.

Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all injury matters.  More than that, we offer you experience, knowledge, compassion, and a long history of results.

How Electronic Health Records Contribute to Medical Malpractice

Electronic Health Records (HER) have become a standard part of medical care. A great deal has been written about how these records can reduce the rate of medical errors. However, studies have shown that EHRs can actually be a source of medical errors and liability.

Issues with EHRs

A study from a medical liability insurer revealed that in medical malpractice claims that were related to EHRs, 64% were due to user errors and 42% were the result of system errors. These factors together can mean that systems designed to reduce the level of medical errors can lull some medical professionals into a sense of complacency. In a study that involved patient satisfaction with practices that used EHRs for electronic prescribing, 8.5% of patients said that, even with EHRs in place, their doctors sent medications to the wrong pharmacy at least occasionally, an error that can delay the administration of medications. There are also more serious issues that can be the result of EHR use, such as:

  • A lack of access to up-to-date data. This can occur when two facilities are using systems that are not interoperable. For instance, a primary care doctor may not get records of visits to other professionals or to emergency rooms, leading to incomplete medical records.
  • Over-documentation. Often, information from a previous visit will be copied and pasted into the record for a new visit. This can result in the recording of exams that did not occur, perhaps because of cancellation, which threatens the credibility of records.
  • Issues with security. A stolen laptop, a cyber-attack from outside or even a lost thumb drive can leave patient data vulnerable. All devices and equipment that contain medical information should be encrypted. When they are not, it can cause identity theft concerns for patients, as well as result in HIPAA violations.
  • A failure to validate reports. Busy practices often have hundreds of reports coming in each day. There is often no one who validates the data before it is included in the EHR, which can lead to poor data being included in the patients’ records.
  • Lost records when switching from paper to EHR. Significant portions of a patient’s record may not make it into the new EHR report, which can cause physicians to miss things. For instance, a record of an allergy to a medication may be lost if full records are not moved from paper to EHR.
  • When medical practices depend on EHRs to make important medical decisions, it is possible for mistakes to be made. In many cases, these mistakes are ones that can be considered medical negligence.

Confusing, duplicative or unreadable records

If you have been injured or suffered another negative outcome that can be traced to the use of electronic health records, it is important to discuss your case with a medical malpractice attorney. This is still a new area and should not be traversed without an expert on your side.

Achieving results when it counts

Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. Personal attention and loyalty is given to every client, while aggressively fighting for their right to compensation. Whether in settlement negotiations or pursuing a favorable trial verdict, we are thoroughly prepared and committed to achieving a just outcome.

Pennsylvania medical malpractice: Why file a wrongful birth suit

A mother in another state recently filed a wrongful birth lawsuit against the physician she claims failed to test her child for health conditions while the baby was still in the womb. Medical malpractice claims of this sort may not be common, but there certainly are reasons to file a wrongful birth suit. In fact, many families in Pennsylvania may be experiencing similar concerns as this woman.

According to a recent report, the plaintiff claims that as soon as she found out she was pregnant she wanted the fetus to be tested for cystic fibrosis — as it runs in her family. She claims that the test was never offered and that getting a consultation with a genetic counselor was difficult. The child was eventually diagnosed with the disease after she was born, which has caused a physical, financial and emotional strain on the family.

The plaintiff is seeking approximately $14.5 million in damages. It is believed that the majority of that will be needed for the family to seek medical care for their little girl. At this time, it is unknown if the defendant has responded to the legal claims.

A wrongful birth lawsuit is not something that is filed due to a lack of love for one’s child. In fact, it is quite the opposite. Every parent, whether residing in Pennsylvania or elsewhere, wants what is best for his or her child. When a child is sick, being able to afford the right care and treatment can be a challenge. A wrongful birth claim, such as the one filed in this case, is a medical malpractice claim that is simply filed in an effort to achieve compensation that will allow a parent to provide for the life-long needs of his or her child.

Source: msn.com, “Mom Sues Physician for ‘Wrongful Birth’ of Child With Health Condition“, Hannah Murphy, Feb. 4, 2016

Deni v. Banka, MD, No. 0327 (C.P. Phila. October 22, 2015

Massiah-Jackson, J., accord the opinion in Mathai v. Banka, No. 2814 (C.P. Phila. October 22, 2015) Massiah-Jackson, J.  Motion for partial judgment on the pleadings is granted, and all claims relating to conduct prior to December 2, 2006, are dismissed with prejudice.  Pennsylvania Hospital, on April 2, 2013, released a statement to the public and to patients of Dr. Banka concerning medical care the doctor offered.  As a result of this, Dr. Banka’s patients learned for the first time that unnecessary and unwarranted invasive procedures and implantations may have been performed on them.  Several civil actions were filed against Dr. Banka and Penn Medicine.  Defendants raised the MCARE Act’s 7-year statute of repose.  The plaintiffs challenged whether the March 2002 statute of repose was applicable.  All parties acknowledged that the 7-year statute of repose was available, and the court merely calculated the date.  The plaintiffs also argued that claims including battery, fraud, misrepresentation and unjust enrichment and/or punitive damages are not barred by the MCARE statute of repose.  The court did not agree.  The court found that all of those behaviors involved the exercise of medical skills associated with specialized training.  The court found that the MCARE statute of repose effective date was March 20, 2002, and is applicable.  The 7-year deadline was calculated; Deni’s civil action was commenced on December 2, 2013, and was beyond the repose period.

Green v. Pennsylvania Hospital, 123 A.3d 310 (Pa. 2015)

Ronald Green, Executor of the Estate of Joseph Fusco, appealed a Superior Court Order affirming the trial court’s grant of a nonsuit in favor of defendant hospital and doctors.  The Supreme Court reversed and remanded for further proceedings.  Decedent arrived at the hospital complaining of short breath, rapid breathing and wheezing.  He was admitted to the intensive care unit, given medication, and wound up on a ventilator.  He had a number of serious preexisting conditions.  On January 9, 2009, in an attempt to wean decedent from the ventilator, a physician performed a tracheotomy.  A tracheotomy cuff was placed around the tube and inflated.  Blood was coming from the tracheotomy site.  The tracheotomy tube had become blocked, depriving decedent of an airway.  Medical personnel attempted to force air through an improperly placed tube and the trachea collapsed.  This was during an attempt to provide an airway.  A negligence action ensued.

 

A plaintiff may pursue a negligence action on a direct liability or vicarious liability theory.  In 2002, the Pennsylvania legislature enacted the MCARE Act, codifying the vicarious liability of hospitals under the doctrine of ostensible agency.  Here, the lower court found that the doctor had not been proven to be an ostensible agent of the hospital.  The court ruled that the requirement for establishing ostensible agency under Section 1303.516(a)(1) of the MCARE Act, where the evidence must show that a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents, is substantially the same as the requirement for establishing ostensible agency under Section 429 of the Restatement (Second) of Torts, where the recipient of services must demonstrate a reasonable belief that the services were rendered by the employer or by his servants.  At 322.

 

The record presented sufficient evidence to create a jury question concerning whether a reasonably prudent person in decedent’s position would be justified in the belief that the doctor was acting as the hospital’s agent when she rendered care to the decedent.  It is undisputed that decedent became a patient of the hospital through the emergency room.  The doctor in question arrived in decedent’s room 10 minutes after he did.  The doctor was the primary care taker for the patient with respect to the tracheotomy.  “In this Court’s view, when a hospital patient experiences an acute medical emergency, such as that experienced by Decedent in the instant case, and an attending nurse or other medical staff issues an emergency request or page for additional help, it is more than reasonable for the patient, who is in the throes of medical distress, to believe that such emergency care is being rendered by the hospital or  its agents.”  At 323.  Hence, the nonsuit was erroneous.

 

Another question raised in this case is whether a nurse could give causation testimony against another nurse who helped in the procedure.  The MCARE Act does not mandate the admission of a given expert’s testimony.  An abuse of discretion standard will apply.  In this case the trial court determined that allowing the nurse to offer causation testimony as to another nurse, might confuse the jury.  The trial court did not abuse its discretion in this respect.  Thus, based on the expert report, the proffered expert causation testimony of the nurse was based on a course of conduct by nurses and physicians and therefore had the potential to confuse the jury.

Radiology errors are unfortunately common

Doctors spend years receiving training in their specific fields. Unfortunately, this does not mean that mistakes never occur. If errors are caught early and the appropriate corrective measure taken, any negative impacts on patients can be greatly reduced. However, diagnosing and radiology errors tend to take awhile to catch, generally resulting in patients receiving inappropriate treatments. Those in Pennsylvania who have been negatively affected by such errors may be entitled to pursue compensation for any resulting losses through legal means.

As technology improves the rate of radiological errors decreases. Currently, the average error rate is 3-5 percent. While this is much lower than in years previous, that is still quite a few patients who are given the wrong diagnosis.

There are several factors that contribute to radiological errors. These may be radiologist specific, such as lack of knowledge, under reading, complacency, poor communication and faulty reasoning. Errors may also occur due to system issues such as staff shortages, inadequate equipment and excess workload.

While medical facilities in Pennsylvania and elsewhere are constantly reviewing standards and looking for ways to improve and reduce things such as radiology errors, mistakes still happen and patients suffer as a result. These patients or their family members may opt to pursue legal actions against medical providers and/or facilities in an effort to seek damages. Medical malpractice claims can take awhile to complete, and litigation may not always prove to be necessary as some cases may be resolved through out of court settlement. Regardless of how a case proceeds, a victim of malpractice may receive financial restitution if his or her claim is navigated successfully.

Source: ncbi.nlm.nih.gov, “Discrepancy and Error in Radiology: Concepts, Causes and Consequences“, Adrian Brady, Risteard O Laoide, Peter McCarthy, and Ronan McDermott, Accessed on Dec. 6, 2015

MEDICAL MALPRACTICE

Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015).  Two discovery orders are appealed by UPMC.  The two privileges under consideration are the Peer Review Protection Act and the attorney-client privilege.  This case involved a transplant where the donor had Hepatitis C.  At some time after the surgery, UPMC personnel discovered that they had transplanted a Hepatitis C infected kidney into Mr. Yocabet.  The CMS/DOH investigated to determine if UPMC’s kidney transplant program was in compliance with requirements of the Centers for Medicare and Medicaid Services and was thus eligible to continue to participate in the Medicare/Medicaid program.  The Department of Health personnel met with the hospital’s administrators and transplant program staff.  The confidentiality provisions of the Peer Review Act do not apply to the CMS/DOH investigation because the Department of Health is not a professional health care provider and did not conduct peer review.  Since the Department of Health and the Centers for Medicare and Medicaid Services are not professional health care providers, the Department of Health did not engage in peer review during the CMS/DOH investigation.  An entity that is not itself a professional health care provider does not become one merely because it hires a professional health care provider to conduct its investigation.  The Right-to-Know Law is irrelevant.  A review committee must be “engaging in peer review,” and peer review is a “procedure for evaluation by professional health care providers” of services performed by other professional health care providers.  We reject UPMC’s assertion that a record or document automatically is covered by the peer review privilege merely because it was forwarded to a peer review committee.  With respect to interrogatories inquiring about hospital committee meetings, the court ordered an in camera investigation to ascertain if the attorney-client privilege applies.  The attorney-client privilege can apply to a meeting of the governing board of an organization with its executive vice-president and the attorney-client privilege potentially applies to information requested in these interrogatories.  A board of directors of a professional health care provider can conduct peer review.  We reject the postulation that a corporate entity can obtain legal advice only when one of its high-ranking officials meets privately with counsel for advice on behalf of the corporation.  The board of directors of a corporation, in addition to its officers, can act on its behalf for purposes of application of the attorney-client privilege.  The party invoking a privilege must initially set forth facts showing that the privilege has been properly invoked before the burden shifts to the party asking for discovery to set forth facts showing that the disclosure will not violate the attorney-client privilege.

Pennsylvania medical malpractice: Diagnosing errors concerning

According to a recently published report, on a national level, diagnosing errors supposedly occur every single day in every type of health care setting. Thinking about that is somewhat frightening. Patients in Pennsylvania and across the country depend on the health care system. They depend on those working in this system to treat their cases with care, concern and accuracy. When mistakes are made, medical malpractice claims may grant the victims of such errors — or their surviving family members in the event of fatality — some form of compensation for any resulting losses.

The report, “Improving Diagnosis in Health Care, ” was released Sept 22. A study of this kind is big news, as diagnosing errors are not often studied, but really are a major cause for concern. It is believed that approximately one out of every 20 Americans will receive a misdiagnosis. An estimated 5 percent of adults seen in outpatient settings alone are believed to receive a delayed or inaccurate diagnosis. This represents a massive amount of the national population.

Without the right diagnosis, patients suffer needlessly. They may not be treated or are treated inappropriately. The consequences of such errors are potentially life-threatening. Why are so many health care providers failing to provide accurate diagnoses? There are a lot of factors that can contribute to a patient receiving the wrong diagnosis, including lack of testing, improper testing and reporting errors — among a variety of others.

When diagnosing errors occur, who is responsible? Facilities of care, medical providers, lab staff — essentially anyone who is believed to have contributed to the error. Medical malpractice claims can be filed in an effort to recoup any losses resulting from diagnosing errors. Such claims may be litigated in a Pennsylvania civil court; however, there are those which may be resolved through out of court negotiations and settlements.

Source: usnews.com, “‘Countless’ Patients Harmed By Wrong or Delayed Diagnoses“, Steve Sternberg, Sept. 22, 2015

Nursing negligence believed responsible for patient’s death

Placing a loved one in any sort of care or rehabilitation facility can be a heart-wrenching decision. However, depending on the needs of a patient, the services offered at a nursing home are sometimes required. Unfortunately, there are far too many stories of nursing negligence leading to patient injury or death. Those in Pennsylvania or elsewhere who have been affected by such circumstances may have legal recourse.

Recently, a legal claim was filed against a care facility in another state. According to the legal complaint, the plaintiff alleges that negligence of medical staff led to the death of a 78-year-old woman. It is believed that the victim acquired multiple pressure sores which became infected during her short stay at the nursing home. The plaintiff claims that the infection caused by the sores and the staff’s failure to properly treat the patient resulted in the victim’s death.

The wrongful death claim names several staff members and the care facility as defendants. The plaintiff is seeking damages in the sum of at least $50,000 and court costs. It is unknown if a response to these allegations has been offered.

Regardless of whether one lives in Pennsylvania or elsewhere, when there is a need for medical services, patients and their family members depend on providers to give the best care possible. Sadly, cases of nursing negligence are far more common than anyone would like to imagine. Those who believe their loved ones were injured or died as a result of medical negligence may pursue legal actions against those deemed responsible. Such civil claims may be handled through litigation or settlement negotiations out of court. In either situation, if navigated successfully, fair and full compensation may be achieved.

Source: cookcountyrecord.com, “Wrongful death suit alleges negligence on part of Alden of Waterford“, Robert Hadley, Aug. 27, 2015

Did negligence of a medical provider lead to man’s death?

When a loved one dies while in the care of a medical provider, it is not uncommon to question whether negligence played a role in the death. Negligence of a medical provider is, sadly, more common than most would like to imagine. Those in Pennsylvania or elsewhere who do believe they have been negatively affected due to such behavior may seek answers and compensation through legal means.

Recently, a woman in another state filed malpractice claims against both the hospital and doctor she believes are responsible for the death of her husband. The man was admitted as a patient to Tulane School of Medicine in the Spring of 2011. He died while in the hospital, about a month after being admitted. According to her complaint, the seriousness of her husband’s medical issue was not properly addressed, resulting in his death.

Not only is the plaintiff seeking compensation for the wrongful death of her husband, she is also seeking survival actions, including the physical and mental anguish. The amount she is seeking has not been disclosed. At this time, it is unknown as to how the defendants have, or are going to, respond to this complaint.

So, did the negligence of a medical provider lead to this man’s death? It is a difficult question to answer and, really, only time will tell. This case, as is true for other medical malpractice cases, may be resolved through an out-of-court settlement, in which the defendants do no admit to any wrongdoing, or it can be taken to court for a ruling. Residents of Pennsylvania who have had similar experiences may also question the actions of medical providers. In doing so, it may be possible to receive compensation for any financial losses sustained as the result of negligent behavior.

Source: louisianarecord.com, “Woman sues Tulane School of Medicine for malpractice after husband’s death“, Andrey Burin, July 20, 2015

How can you reduce emergency room errors as a patient?

Emergency rooms are almost always busy, which makes it a very vulnerable place to go when you need medical care. Sometimes, you just have to go and hope that you don’t become a victim of emergency room errors. Luckily, there are some steps that you can take to protect yourself as well as steps to take if you do indeed become a victim here in Pennsylvania.

It can be hard to prepare for a trip to the emergency room, especially if it is a true emergency. However, you can keep some of your most important health information on a piece of paper in your wallet, purse or smartphone. This includes medications that you are currently taking and any allergies that you may have.

One other thing that is important is that patients speak up when in the emergency room. If there is something that you don’t understand, don’t hesitate to ask. The doctor is supposed to listen to your medical history, symptoms and other pertinent data, and this process may become repetitive but it is designed that way. You need to make sure that he or she understands your problem and that you understand why the doctor wants to order a certain test and ask — more than once, if necessary — for this to to be explained to you in detail.

In any situation, no matter how vigilant you are at protecting yourself, you may still become a victim of emergency room errors. This can result in the need for long-term medical care and possibly even rehabilitation, which can become quite costly. A medical malpractice claim may help Pennsylvania victims recoup these expenses as well as other related expenses while also holding the responsible parties accountable for their negligent acts.

Source: US News, “Staying Safe in the ER“, Michael O. Schroeder, June 25, 2015

Informed Consent: The Relationship Between Doctor and Manufacturer

When a physician implants a device in a patient, does informed consent require the doctor to tell the patient of any financial relationship the physician or the institution he works for has with the manufacturer and/or distributor of the product?  Behind that question lies a more subtle issue as to whether discovery on the financial relationship between doctor and/or his employer and the manufacturer/distributor should be permitted.

There is not a plethora of case law in Pennsylvania.  Other states, however, have weighed in on the subject.  See, e.g., Martinez v. Selias, 922 N.E.2d 457 (Ill. App. 2010).  This case held that evidence of an orthopedic surgeon’s financial motive could be introduced to address the issue of the surgeon’s compliance with the standard of care in a malpractice case brought by a patient, alleging that the surgeon performed unnecessary procedures on patient’s lower spine.  The matter may also arise in the context of informed consent.  If discovery is going to be permitted by the court, or evidence introduced at trial, concerning the relationship of the physician or his employer to the manufacturer/distributor, it certainly would be necessary to plead the significance of the relationship, consulting fees, or reimbursement programs.  To the extent that this could not be known until some discovery takes place, the party asserting the significance of the relationship needs to amend just as soon as they get wind of the situation.

40 P.S. § 1303.504 is the provision in the Mcare Act concerning necessity for a physician to obtain informed consent prior to surgery and certain other procedures.  Pennsylvania’s informed consent statute provides that a physician is liable for failure to obtain the informed consent if the patient proves that receiving such information would have been a substantial factor in the patient’s decision whether to forego the procedure.  40 P.S. § 1303.504(d)(1).  A potential conflict of interest because of the financial relationship with a medical device company or its distributor is relevant and bears upon the “risks and alternatives” of a procedure because it could suggest that the physician chose to use the particular device on the patient, in part for his own benefit.  In such a scenario, the physician would be less inclined to consider and/or disclose all reasonable alternatives to the patient and/or to discuss the risks.  In addition, such a conflict of interest and the lack of disclosure of alternative procedures and/or risks due to the conflict could be a “substantial factor in the patient’s decision whether to forego the procedure” or another alternative, less risky procedure.

After a stroke, a delayed diagnosis can result in injury or death

Stroke rates nationwide, including in Pennsylvania, are pretty significant. In fact, strokes are now considered to be one of the leading causes of death among those currently residing in the country. A stroke can happen to anyone, at any age and at any time. After a stroke, a delayed diagnosis can result in severe injury or death. Those who suspect that diagnostic errors resulted in improper treatment to themselves or loved ones would be well within their rights to question the actions, or lack thereof, of medical providers.

What exactly is a stroke? To put it simply, a stroke is the result of problems with blood vessels in the brain. After a vessel is blocked or ruptures, a person will need emergent care to help reduce the potential damage. When a stroke occurs, the brain is no longer receiving the amount of oxygen it needs, which causes brain cells to die. The type of stroke, along with when care is received and what treatment is provided, can have a serious impact on a person’s ability to survive such an event.

There are three different kinds of strokes — each of which requires different kinds of treatments. Because of this, it is vital that a stroke is not only diagnosed in a timely manner, but that the type of stroke is promptly identified as well. The three different stroke types are:

  • Transient ischemic attacks (TIA): cause is not always immediately apparent.
  • Ischemic strokes: generally caused by a blocked artery, medication to break up the clot is usually provided.
  • Hemorrhagic strokes: caused due to a burst blood vessel and requires surgery to appropriately repair.

The delayed diagnosis of a stroke, including the stroke type, can have long-term or even fatal consequences. Pennsylvania residents who believe that the medical care provided following a stroke resulted in the death or disability of a family member may pursue legal remedies in order to seek compensation for any resulting losses. A medical malpractice claim may be settled in or out of court. If handled appropriately, such a claim can result in fair and full compensation for damages sustained as a result of any improper care.

Source: nhlbi.nih.gov, “How Is a Stroke Diagnosed?“, Accessed on May 28, 2015

It is possible to seek compensation following medical errors

Medical errors are, unfortunately, common. While more is being done by medical providers to prevent any such errors, numerous people across the country, including many living in Pennsylvania, experience injuries or delayed treatment as a result of flaws in diagnosis and treatment. Misdiagnosis is believed to be one of the most common forms of medical malpractice. Those who have experienced this or any other type of medical mistake can seek compensation for any resulting losses.

Seeking the help of medical providers is something most, if not all, individuals will need to do at some point in their lifetime. While some may require such services more than others, all should expect a certain standard of care, regardless of why treatment is sought. Sadly, some of those who take the time to seek medical advice are misdiagnosed. In 2013 alone, up to 63 percent of all medical malpractice claims filed were for this one issue.

As with most serious health issues, early detection and treatment is vitally important. If an individual receives an improper diagnosis, this can result in a delay of necessary treatment or possibly accepting care that is not truly required. In either case, the damages sustained can be serious, even life-threatening.

The negative consequences of an improper diagnosis can affect not only the patient, but his or her family members as well. Pennsylvania residents who have experienced any losses due to this or any other form of medical malpractice can pursue legal action in order to seek compensation. While this type of claim can take time to resolve, whether through jury trial or an out of court settlement, it is possible to achieve monetary relief for any damages incurred as a result of a medical error.

Source: ahwatukee.com, “Misdiagnosis: The most common medical malpractice“, Martha Neese, April 29, 2015

Did diagnostic mistakes lead to the death of child?

While emergency rooms can be a hectic place, medical staff are still expected to give every patient that comes through the doors proper care. This includes spending adequate time with the patient to achieve the right diagnosis. When symptoms are dismissed or tests needed for diagnosis not ordered, the consequences can be significant. A recent case, currently working through the court system in another state, may hit home for some Pennsylvania residents who feel they have been negatively affected by diagnostic mistakes.

Near the end of 2014, a child was taken to an emergency room by his mother due to nausea, cramping and vomiting. According to the mother, no lab tests were performed and the child was sent home. A few days later, the child was taken via ambulance to the same hospital in cardiac arrest. He was eventually moved to a children’s hospital, where blood tests apparently showed the child had leukemia.

Sadly, the child didn’t survive the incident. His mother has filed a legal complaint, claiming the failure to provide proper testing by emergency room staff contributed to the child’s death. She is seeking more than $50,000 plus in damages

Medical mistakes are made; some have serious consequences and others do not. Diagnostic mistakes, in particular, can lead to improper treatment which can have severe, if not fatal, results. Pennsylvania residents who believe they have been injured or that a loved one died as a result of an improper diagnosis due to diagnostic mistakes can seek compensation for any damages sustained by filing  and litigating a medical malpractice claim.

Source: madisonrecord.com, “Alton Memorial named in medical malpractice complaint“, March 10, 2015

Does cell phone use contribute to surgical error?

Patients in Pennsylvania who are in need of surgical services often look for healthcare providers that have a strong reputation and a good track record. People literally put their lives in the hands of these medical providers and should expect that patient care is a top priority. Unfortunately, even the most qualified surgical staff members are not free from distraction during operations, and surgical error may result.

One distraction that is becoming more commonplace among medical providers is cell phone use. In general, medical facilities are moving toward digitizing medical records. The use of smartphones allow healthcare providers to quickly access necessary information. However, the use of mobile electronic devices is reportedly contributing to an increase in the number of surgical errors seen across the country.

According to a recent report, the use of smartphones during surgery is becoming a real concern as numerous medical errors and infections are being linked to cell phone use during operations. While the ability for medical staff to easily access records and remain connected to others is important, it has been determined that some surgical staff members are using these devices to send messages, check social media sites and access the Internet for personal use. This type of activity can distract from the task at hand and endanger patient safety.

Those in Pennsylvania who have suffered an injury due to a surgical error have every right to question what went on during their procedure. If cell phone use or any other type of distraction is linked to the cause of injury, medical malpractice claims may be filed against those believed responsible. These claims may be settled out of court or may require a jury trial; in either case, compensation for damages incurred could be awarded for any injuries suffered due to negligent behavior by medical staff.

Source: bendbulletin.com, “Is your surgeon focused on you or his smartphone? Texting and surfing can distract from patient care“, Markian Hawryluk, Feb. 1, 2015

Can I File a Medical Malpractice Lawsuit?

The case of Grubb v. Albert Einstein Medical Center, 387 A.2d 480 (Pa.Super. 1978), which is essentially a statute of limitations ruling, is of some value with respect to the concept of duty.

 

The plaintiff in a malpractice action must prove either that (1) the physician did not possess and employ the required skill and knowledge, or (2) that he did not exercise the care and judgment of a reasonable man in like cases and that the injury complained of either (1) resulted from the failure on the part of the physician to possess and employ the required skill and knowledge, or (2) resulted from his failure to exercise the care and judgment of a reasonable man in like circumstances.

387 A.2d at 485 (emphasis added).

It has been stated that in order to set forth a prima facie case of malpractice, a plaintiff must establish:

(1) a duty owed by the doctor to the patient;
(2) a breach of that duty;
(3) that the breach of duty was the proximate cause or substantial factor in bringing about the harm suffered by the patient; and
(4) that damages suffered by the patient resulted directly from that harm.

WHERE CAN I FILE A MEDICAL MALPRACTICE LAWSUIT?

The Pennsylvania Rules of Civil Procedure dictate where a cause of action may be properly filed against a corporation:

(a) Except as otherwise provided by an Act of Assembly or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in

(1) the county where its registered office or principal place of business is located;

(2) a county where it regularly conducts business; Note: See Rule 2198.

(3) the county where the cause of action arose; or

(4) a county where a transaction or occurrence took place out of which the cause of action arose.

How Long Do I Have to File a Medical Malpractice Claim?

Statutes of limitations are laws in Pennsylvania that set forth time limits on how long you have to file a lawsuit.  In Pennsylvania, litigation for medical malpractice must be commenced within two years of the negligence.  There are some exception to this rule which can be discussed with an Attorney to make a determination based upon your specific circumstances.  For reference, below is the pertinent portion of the Pennsylvania Statute outlining the time limit to file a medical malpractice claim.

42 Pa. Cons. Stat. § 5524. (2) Two year limitation.

“An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.”

In addition, Pennsylvania is now faced for the first time with the statute of repose in medical malpractice cases.
The statute can be found at 40 P.S. § 1303.513, that reads in its entirety as follows:

Section 513. Statute of repose

(a) General rule. – Except as provided in subsection (b) or (c), no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract.

(b) Injuries caused by foreign object. – If the injury is or was caused by a foreign object unintentionally left in the individual’s body, the limitation in subsection (a) shall not apply.

(c) Injuries of minors. – No cause of action asserting a medical professional liability claim maybe commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract or after the minor attains the age of 20 years, whichever is later.

(d) Death or survival actions. – If the claim is brought under 42 Pa.C.S.A. § 8301 (relating to death action) or 8302 (relating to survival action), the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death.

(e) Applicability. – No cause of action barred prior to the effective date of this section shall be revived by reason of the enactment of this section.

(f) Definition. – For purposes of this section, a “minor” is an individual who has not yet attaine the age of 18 years.

Gynecological injury possible from some surgical procedures

Women’s health issues are a big concern here in Pennsylvania and nationwide. It is not uncommon for women to require surgical procedures to help correct a number of issues, both feminine and otherwise. Unfortunately, even surgeries which are now considered routine come with a certain amount of risk and gynecological injury may result.

At some point during a woman’s life, the need for gynecological care will likely become an issue. While many woman may only require routine medical procedures — such as physical examinations — several others will require surgical procedures for a number of health issues. From birth control options to infertility issues, cancer concerns and a multitude of other reasons, the surgical route is sometimes the best course of action. With advancements in medicine, these surgeries are generally considered safe; however, even a minor mistake during one of these procedures can have hefty consequences for the patient.

Laparoscopic surgery has been around for some time now and is often used for gynecological procedures. It is believed that utilizing this technique can cut down on a woman’s recovery time and reduces the chance of injury to the patient. Unfortunately, a number of issues can occur during a gynecological laparoscopic surgery which can lead to major complications or even death. Some common injuries associated with this type of surgery include:

  • Intestinal injury
  • Utereral injury
  • Bladder injury
  • Vascular injury
  • Complications from anesthesia

Women in Pennsylvania who have suffered a gynecological injury or other  injury from a laparoscopic or general gynecological surgical procedure are not alone. In cases where negligence is suspected, legal remedies may be appropriate in handling the situation. Medical malpractice claims can be made against the medical staff or facility of treatment. Claims which are navigated successfully can be financially compensated through either an out-of-court settlement or jury trial.

Source: laparoscopy.blogs.com, “Complications of Laparoscopic Gynecologic Surgery“, Bulent Berker, MD, Salih Taskin, MD and Elif Aylin Taskin, MD, Jan. 2, 2015

What might qualify as medical malpractice?

As most, if not all, Pennsylvania residents will require medical care at some point in their lives, understanding what qualifies as medical malpractice may be important. Not all will have a bad encounter with a medical provider or facility, but, if they do, determining if any mistakes made or injuries suffered equate to medical malpractice will likely be high on their list of priorities. In order to help give clarity to this subject, examples as to what may constitute medical malpractice and what likely does not are often helpful.

Medical malpractice can come in many forms, some of which are obvious, while others may be harder to pinpoint. Some obvious cases of negligence may include leaving surgical instruments inside a patient or administering inappropriate or harmful medications. Misdiagnosing or the failure to diagnose can also fit into this category. A less obvious form of negligence could include medical staff failing to follow proper hygiene protocols, leading to patient infections. Each of these actions can have serious consequences for patients; however, determining negligence in some cases can be challenging.

Dissatisfaction with medical services received does not equate to medical malpractice. A few examples of this can include receiving a scar from surgery or having a bad reaction to a procedure. Injury, harm or death must occur due to a negligent act on part of a medical provider in order for a case like this to be successful.

For Pennsylvania residents who have been injured following a medical procedure and who believe negligence was a contributing factor, legal remedies may be available. An experienced medical malpractice attorney can help determine the best course of action to pursue. If appropriate, medical malpractice complaints can be filed against the provider or facility believed to be responsible. Claims that are successfully managed can result in an out-of-court settlement or compensation awarded through a jury trial.

Source: healthnewsdigest.com, “What is medical malpractice?“, Dec. 17, 2014

Misdiagnosis, unfortunately, a common occurrence nationwide

When medical care is needed, patients depend on physicians to make an accurate diagnosis so that the proper treatment can be ordered. If a misdiagnosis occurs, the results can be serious or even fatal. Unfortunately, it seems that a significant number of patients across the country, possibly including many here in Pennsylvania, are misdiagnosed every year.

Misdiagnosis isn’t a new thing. What is concerning, though, is the rate at which it still occurs. According to data gathered in 2013, approximately 10 to 20 percent of medical cases are misdiagnosed every year. A survey of physicians found that 96 percent of doctors feel misdiagnosis is preventable, though a significant number see a misdiagnosed case once a month. In a 1991 Harvard University study, of all reported adverse medical events, 14 percent were the result of misdiagnosis; of these events, it is believed that 75 percent of them were the result of medical negligence.

The exact number of misdiagnosed cases that occur every year is unknown. It is believed that many go unreported. In many cases, patients simply seek a second opinion or don’t find out about the error until years after the fact. However, those that are reported can lead to medical malpractice claims against the physician or medical staff deemed responsible.

Those in Pennsylvania who have experienced an adverse medical event or who have lost a loved one due to misdiagnosis may take legal action. Medical malpractice claims can be filed against the physician, supporting medical staff or even the facility considered responsible for the error. As these mistakes tend to have serious repercussions for patients and their families, it is often possible to receive fair compensation for any losses endured as a result of a misdiagnosis.

Source: ncpa.org, “Physicians Misdiagnose at an Alarming Rate“, Sandra Boodman, Nov. 8, 2014

I think I’m the victim of medical malpractice, now what?

Patients and their families want to believe that, when they seek the expertise of medical professionals they will receive the best care possible. This includes receiving care free of error. Unfortunately, medical staffs do make mistakes. These mistakes can be minor and have little effect on the patient, but they can also be rather significant and result in serious to fatal consequences. If mistakes are made regarding treatment, it is possible to file medical malpractice claims in a Pennsylvania court against the party or parties believed to be responsible.

Depending on the needs of the patient, there are many situations a patient can be put in that may subject them to medical errors. These situations can range from negligent care by medical staff, diagnosing errors or even surgical mistakes — to name a few. It doesn’t matter at what level a medical error is made, if injury or even death occurs due to negligent actions of a medical provider, a case can likely be made for medical malpractice.

Mistakes by medical providers or facilities are not the only instances that qualify for this type of claim. Some pharmaceutical and product liability claims can also fall into the realm of medical malpractice. More information about the types of events that may qualify as medical malpractice can be found on our Medical Malpractice information page.

Patients in Pennsylvania, or their family members, do have every right to question the care they have received. If you believe you or a family member has been the victim of a medical error, a medical malpractice claim can be filed against the staff or facility believed to be responsible. Speaking to an attorney who has experience regarding the subject of medical malpractice can help determine the best course of legal action to pursue.

Source: riederstravis.com, “Williamsport Medical Malpractice Attorney”, , Aug. 25, 2014

Negligence of a medical provider leads to legal claims

A case recently concluded in another jurisdiction serves as a good reminder to patients in Pennsylvania and their families of the role medical staff should play when providing adequate care. This particular case involves the negligence of a medical provider, specifically naming staff at a nursing home, for providing poor care to one of their patients. The patient subjected to this negligence and his family were awarded a substantial sum by a jury for the insufficient care received.

While no one really wants to place an aging family member in a nursing home, sometimes the amount of medical care they require makes it a necessity. Finding an appropriate facility that claims to offer all adequate resources for care can be difficult, but it is possible. Unfortunately, in this particular case, the family entrusted their loved one to a nursing home only to find out he had been neglected, and that the neglect lead to several medical issues.

The 83-year-old patient suffered several injuries while in the care of the nursing home, including bedsores, dehydration, frequent urinary tract infections and E. coli. While representatives for the nursing home denied the claims of neglect, the jury sided with the patient. An award of $3.3 million was granted to the patient and his family.

Many elderly patients placed in Pennsylvania nursing homes simply do not have the strength to fight for themselves. If negligence is suspected, family members may be able to pursue legal action on behalf of their loved one. Negligence of a medical provider should never go unchecked, and if any validity is found to substantiate claims of negligence, medical providers can be held accountable and compensation can be awarded.

Source: blog.aarp.org, “Nursing Home Hit With $3.3 Million Negligence Verdict“, Lisa McElroy, June 11, 2014

Delayed diagnosis and treatment could lead to claims against VA

Several Veterans Affairs facilities nationwide are being investigated for their supposed role in delaying treatment for many of America’s finest men and women. At this time, one VA center in Pennsylvania has recently been included in this investigation. If negligence is found, this could give way to malpractice suits for delayed diagnosis that possibly led to the injury or deaths of several military members.

Senator Pat Toomey has introduced a bill known as “VA Accountability.” This bill, if passed, would allow soldiers or their family members to file claims against the VA if evidence is found that any aspect of a veteran’s health status was misreported. This bill comes after allegations were made against Veteran Affairs for supposedly altering documentation, which resulted in delayed medical treatments. It is unknown which of the VA facilities in Pennsylvania, including 10 hospitals, 33 outpatient clinics and several call centers, have been included in these specific allegations.

These claims against the VA have opened the door for military members to seek care in the private sector if VA facilities have unreasonable wait times, though many believe this isn’t enough. Toomey’s bill would make it easier for veteran’s or their family members to pursue medical malpractice claims against these facilities without having to meet a standard wait time of at least six months. It would also make it easier for staff of VA facilities to be fired if they are found to have falsified records.

Military men and women perform an extraordinary service and put their lives on the line to protect freedoms held so dear. Who is going to protect them in their time of need? Veterans in Pennsylvania who have been denied timely care or who have been injured due to delayed diagnosis or treatment, and even family members of these soldiers who have lost their lives due to these delays, may all be entitled to pursue malpractice claims against the employees or the facility believed to be responsible.

Source: mcall.com, “Pennsylvania Veterans Affairs facility probed over delays”, Steve Esack, May 27, 2014

Family files suit against hospital for misdiagnosis, son’s death

It is hard for any parent, in Pennsylvania or nationwide, to see their child in pain. So when a child gets hurt and the pain is beyond the normal aches and pain from typical play, many like to seek medical advice to ensure there is not a greater issue. With the years of training and knowledge that doctors have, parents tend to trust what a doctor tells them; however, sometimes mistakes are made and a misdiagnosis can lead to tragic outcomes.

Recently, a medical malpractice case was filed in another jurisdiction against a hospital and physician for the misdiagnosis and wrongful death of a 6-year-old boy. The boy had apparently run into a pole while at school and was taken to the local children’s hospital for treatment. The emergency room physician treated him, supposedly diagnosed him with constipation and sent him home. Hours later the boy’s parent claim he started losing consciousness, so they called for an ambulance. Sadly, the boy died before he reached the hospital.

Autopsy findings state the cause of death to be from a lacerated kidney and internal hemorrhaging. The family asserts that the initial treatment and diagnosis that their son was given masked the real problem, which ultimately led to his death. Their overall goal in this case is to hold the hospital and physician responsible for the alleged negligence that caused their son’s death.

Those who have lost a loved one due to misdiagnosis or error in medical treatment are left with emotional wounds that may never fully heal, and financial losses may be hard to recover from. Pennsylvania residents who feel they have lost a loved one due to medical malpractice may be entitled to file claims against the facility and medical provider responsible. These cases may be settled out of court or may lead to trial, either way compensation can be granted which may offer some small sense of closure.

Source: kvue.com, Lawsuit: Hospital misdiagnosis led to boy’s death, Janet St. James, Feb. 25, 2014

Family wins birth injury case in Pennsylvania

Pregnancy can be a time of great joy and excitement but can also be very stressful. Doing all one can do to maintain a healthy pregnancy for the hopes of a healthy child can be hard work, but well worth it in the end. Unfortunately, for all a mother can do on her end, depending on knowledgeable medical staff during labor and delivery can also create its own set of difficulties. Recently, a case in Pennsylvania regarding a birth injury sustained during delivery was finalized and the jury sided with the family.

The medical malpractice claim was filed in northeastern Pennsylvania by a family whose son has significant health issues they believe are the result of inappropriate care during labor and delivery. The child, now 4 years old, has cerebral palsy and developmental delays. The parents believe these health issues could have been avoided and claim the medical staff ignored the signs that their son wasn’t getting the appropriate amounts of oxygen and that he should have been delivered via Cesarean section.

The jury agreed with the family and awarded them $55 million. This monetary compensation is a must-have to be able to provide their son with the medical care and therapies he will need for the rest of his life. The hospital still maintains that they provided accurate care and are not responsible.

Providing necessary medical care for those children who have sustained birth-related injuries can be financially draining. While every case is different, Pennsylvania parents who believe their child may be a victim of a birth injury due to negligence during labor and delivery may be entitled to file a malpractice claim against the medical staff and facility involved. If negligence is found, monetary compensation could be awarded to help ease the financial burden and provide their child with the appropriate care.

Source: insurancejournal.com, Pennsylvania Jury Awards $55M for Boy’s Injuries at Birth, No author, Dec. 27, 2013

Negligence of a medical provider: Unnecessary cardiac stents?

Cardiac disease is a serious and life threatening reality in Pennsylvania and across the country, claiming the life of many people and instigating procedures that require the implantation of stents. Reports reveal that, in the past 10 years, over seven million Americans have received stents with the cost soaring into the $110 billion range. Research shows that< with this increase in use, the negligence of a medical provider by using unnecessary cardiac stents seems to be on the rise as well.

Using cardiac stents comes with risks and side affects, though people could be facing an entirely different set of complications when a stent procedure is used and not necessary. Medical studies and many interviews have revealed that about half of the patients given stents had agreed to the procedure while still healthy, and experienced negative reactions to their implantation. The complications included blood clots, torn arteries and infection, bleeding from anti clotting medication and coronary scar blockage; each of these potentially risking death of the patient. A victim, who experiences unnecessary pain and suffering, or even death, may feel the need to pursue restitution through a medical malpractice lawsuit.

According to a report released by Stony Brook School of Medicine in New York, a series of eight clinical trials performed over the last 10 years found that one third of all stents implanted were medically unnecessary. The study did not specify if the procedures were conducted due to diagnostic mistakes or negligence of a medical provider seeking monetary gain. In addition, the Food and Drug Administration reported 773 cardiac patients passed away relating to stents used, and over 4,000 injuries were recorded in other cardiac patients. If a cardiac patient in Pennsylvania were to find themselves with the implantation of an unnecessary stent, then they may have the potential to legally pursue the misdiagnosis.

Earlier this year, the University of Pennsylvania Health System notified over 700 cardiac patients that their procedures involving stents may have been unnecessary. It can be alarming and stressful to learn that a serious medical procedure was not a necessity and could have potentially life altering complications. The negligence of a medical provider in using unnecessary cardiac stents could have permanent repercussions and give rise to a legal claim for reimbursement of monetary damages sustained as a result.

Source: capecodonline.com, Deaths linked to cardiac stents rise as overuse alleged, September, Sept. 28, 2013

Family awarded compensation for surgical error, mother’s death

As Pennsylvania patients seek the advice and treatment of doctors and other medical professionals, it is important for them to feel that the medical personnel are trustworthy and competent. When a procedure does not go as expected and complications arise, it is up to the doctors to make timely and efficient decisions regarding how to handle the situation. If a patient or patient’s family feel that they were the victim of surgical error or other medical negligence, they may wish to file a claim for compensation.

A family was recently awarded over $10 million dollars after a court case revolving around medical negligence. A mother of three reportedly died in 2011 after going through a procedure involving her heart. It was also reported that the mother had gone to seek medical attention due to bronchitis but that doctors believed that she had a heart issue that needed to be addressed.

While performing a procedure for the alleged heart issue, physicians reportedly caused an artery in her heart to collapse. This collapse led to significant loss in blood flow to which the family of the woman claims was not addressed in a timely manner to prevent the victim’s death. Reports indicate that she did not arrive in surgery until almost an hour had passed.

Representatives for the hospital in the case stated that the medical personnel took the proper measures in regards to the patient and that it was an unfortunate circumstance that she did not recover. Though no amount of money could bring their loved one back who died from the surgical error, the family was awarded compensation for the incident. Medical negligence can cause great damage to a patient and their family, and if a Pennsylvania resident believes that they or a loved one has been the victim of a medical error, they may find information on relevant state laws beneficial.

Source: stltoday.com, St. Louis County jury awards $10.8 million medical negligence verdict : Business, Jim Doyle, Aug. 30, 2013

Majority of malpractice cases come from misdiagnosis

A recent study has found that most medical malpractice payouts in the United States stems from misdiagnosis. Only illustrating the issue are the staggering numbers. Over 350,000 claims were considered in this study. Pennsylvania readers will note that over $39 billion was paid to medical malpractice claims and about 40 percent stems from misdiagnosis.

These numbers are quite overwhelming considering that many of these types of misdiagnosis claims stem from death or disability. Many deaths from misdiagnosis occurred while the patient was still in the hospital, but there are other serious misdiagnosis problems found in outpatients. This study revealed the potential discrepancy between quality patient care and the type of care that many patients actually receive, even in the state of Pennsylvania.

Some examples of misdiagnosis problems mentioned in the study include wrong site operations, administering the wrong medicine, and diagnosis issues. Misdiagnosis seems to be the reason behind many medical malpractice payouts stemming from no diagnosis or an incorrect diagnosis. Many doctors may be slower to diagnose a serious issue before ruling out minor ones and may lead to a misdiagnosis.

Unfortunately, many of these misdiagnosis errors result in death or severe disability. They can result in a patient missing work or suffering pain for an issue that could be easily resolved if it was diagnosed properly. Many of these issues could have been prevented or treated quite easily.

Patients that feel that they have been given a misdiagnosis have the right to full access to their medical records and a second opinion. Providing a correct and thorough medical history can greatly reduce any chance of a medical misdiagnosis. A patient can always question a doctor and schedule follow-up appointments if they feel that they did not get the correct treatment for medical issues.

Source: wfmj.com, “‘Misdiagnosis’ leading cause of U.S. malpractice payouts,” Denise Mann, April 23, 2013

Doctor and healthcare system sued for medical malpractice

A Philadelphia, Pennsylvania orthopedic doctor, along with a hospital and health care system, are being sued for medical malpractice. In the suit, a Bucks County woman claims that she suffers from permanent nerve damage due to negligence during a procedure. The hospital where the supposed botched procedure took place is also named in the medical malpractice suit.

The woman originally saw the orthopedic doctor because of pain that she was feeling in her elbow. After being recommended to go through physical therapy and medication, she later returned to the doctor claiming that she was experiencing a numb sensation in her hand. According to the medical malpractice suit, after a failed procedure to alleviate the issue, the woman was then referred to another doctor.

During the woman’s initial visit, the original doctor noted that she suffered from additional injuries besides her elbow. There is no indication if this has a bearing on the medical malpractice suit or if determined a method of treatment prescribed by the first doctor. After being referred to a different doctor, she ultimately received a nerve graft and eventually a tendon transplant. The suit specifies that these additional surgeries were necessary because of the original doctor’s negligence his treatment of the patient.

According to the medical malpractice lawsuit, the woman has suffered neurological damage and permanent damage because of her supposed mistreatment. She is suing for $50,000 to cover damages and is also requesting interest and costs. The four defendants named in the suit are the Philadelphia, Pennsylvania doctor, his practice, the hospital, and the entire hospital health care system. All are cited for negligence.

Every patient has a right under the law to have full and complete access to their medical records. In the case of medical malpractice, records may be examined by those experienced in this field to determine if negligence occurred. Patients have a reasonable expectation of adequate treatment and may go to the fullest extent of the law for compensation if they have not been given such care. A full examination of this case should determine if this woman is eligible for monetary compensation.

Source: The Pennsylvania Record, “Phila. doc, orthopedic practice, Aria Health sued for medical malpractice,” Jon Campisi, March 28, 2013

Pennsylvania hospital accused of misdiagnosis in years of exams

Over the past five years, a Pennsylvania woman rested in the comfort of her doctor’s reassurances that she had been tested and found healthy at routine visits. The joy of the birth of her daughter was cut short, however, two months later when she was diagnosed with cervical cancer. This led to a malpractice claim covering the past five years of misdiagnosis concerning her regular Pap smear exams; all which, according to her physicians, showed no signs of cancerous or progressive cellular activity.

On Oct. 1, 2011 she began to seek compensation for the malpractice she believes that she endured. The Pennsylvania Department of State, Centers for Medicare and Medicaid Services, The Joint Commission and the College of American Pathology soon became involved in reviewing the disputed tests and results. Eight doctors involved in her treatment were interviewed and at least 500 slides were reviewed to determine how many other woman may have been wrongly cleared of hostile growth of cancer cells.

Fortunately, the woman that raised the concern managed to fight the cancer with successful treatment and remains cancer free. Through the lawsuit, she and her attorney hired third party pathology agents that claim to have found an obvious progression of cancerous cells in her cleared test samples. The investigation and reevaluation continues to ensure the health and safety of all patients examined over recent years.

Whenever medical malpractice or a misdiagnosis occurs, it can be extremely difficult for victims and their families to deal with, especially in the event of serious illnesses such as cancer. Those who feel that they have been victims of medical malpractice may want to consider consulting with a legal counsel who is experienced in practicing that area of law in order to discuss their potential options. Sometimes, filing a civil lawsuit will be the right option for those who hope to have their financial and other relevant damages compensated.

Source: Pittsburgh Post-Gazette, “Washington Hospital reviewing hundreds of Pap tests after lawsuit,” Sean D. Hamill, Nov. 16, 2012

Signs of Medical Malpractice

It has been estimated that preventable medical mistakes cause 1,000 deaths and 10,000 cases of serious complications per day. Medical malpractice can happen anywhere, including doctors’ offices, ambulatory care centers, surgery centers, urgent care centers, physical rehabilitation medical facilities, and even at renowned medical institutions.

In Pennsylvania, medical malpractice claims are governed by the Medical Care Availability and Reduction of Error Act, the MCARE Act (Pa. Stat. Ann. tit. 40, §§ 1303.101 to 1303.910 (Westlaw 2007)). The act states that if a medical professional was negligent or incompetent, the patient may be eligible to file a medical malpractice claim. Cliff Rieders was instrumental in the writing of the Bill. At the time the Bill was enacted by the legislature, Cliff Rieders was President of the Pennsylvania Trial Lawyers Association, now the Pennsylvania Association for Justice. Rieders appointed one of the negotiating committees involved with writing the Act. Rieders even wrote some parts of the MCARE Act. Rieders has testified before the legislature in connection with medical and hospital malpractice, the MCARE Act, and medical malpractice insurance issues as well.

Malpractice cases have been brought against local institutions such as the Susquehanna Health System, Evangelical Community Hospital, Geisinger Medical Center, Memorial Hospital, Robert Packer Hospital and Guthrie Clinic, among others. Cliff Rieders obtained a verdict against Robert Packer Guthrie for $16.8 million in a medical malpractice claim.

If you or a loved one has suffered because of medical malpractice or incompetence due to negligence from health care professionals and/or institutions, you need legal representation. The experienced medical malpractice attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann have spent decades honing their skills and successfully representing Pennsylvania families who have suffered an injury or loss due to medical negligence. We offer a free consultation to examine your situation and show you how we can help.

What Constitutes Medical Malpractice?

According to Pennsylvania law, medical malpractice occurs when a healthcare professional commits medical negligence by violating the generally accepted standard of care used by other local medical professionals or is lacking in competence. The medical negligence must be a factual cause of harm to the patient.

There are many situations where medical malpractice occurs, including:

  • Failure to diagnose, evaluate, monitor, or fully treat a patient
  • Inappropriate treatment for the diagnosis
  • Laboratory errors
  • Misdiagnosis
  • Mismanagement of medical tests
  • Birth injuries
  • Prescribing or administering incorrect medication
  • Surgical errors
  • Errors in anesthesia administration
  • Pharmaceutical errors
  • Issues with respect to pharmaceuticals and medical devices
  • Failure to supervise other medical professionals such as nurses, residents and interns.

Signs of Medical Malpractice

How do you know if you have been a victim of medical malpractice? There are so many factors involved that it is not always easy to be sure, which is one reason why you should consult a lawyer. However, there are some signs that should lead you to believe malpractice may have taken place:

  1. Death

Death is expected in some situations, but if you suspect that the death of a loved one is due to medical mistreatment, misdiagnosis, mismanagement, or negligence, you should contact an attorney. Perhaps the patient was given the wrong medication or surgery, or symptoms of the condition’s worsening were ignored. It is very helpful for there to be an autopsy. If there are any questions whatsoever, make sure that your loved one has an autopsy.

  1. Surgical Errors

Problems and complications can always arise during surgery, but if these were caused by negligence, such as tools not being sterilized properly, patients getting the wrong surgery, and leaving objects within a surgical site, you may have a malpractice case. For example, Cliff Rieders handled the case of Thurston v. Robert Packer, where a woman was being operated on for a tumor in her lung. The surgeon put a hole in the woman’s diaphragm but did not act upon reports of nurses after the surgery that things did not look right. The patient’s intestinal system eventually herniated through the diaphragm, causing catastrophic injuries. The verdict was $16.8 million.

  1. Incorrect Diagnosis

Perhaps your condition was misdiagnosed because you never had a thorough exam or condition-specific testing. If you later received a correct diagnosis from a different physician, you might be able to show that your doctor should have been able to see the symptoms and diagnose the illness correctly.

Laboratories can be negligent, and sometimes doctors do not question the results. If it can be shown that the laboratory was negligent in connection with your tests that led to a misdiagnosis, you may have a case against the laboratory.

  1. Treatments Are Not Working, and/or Symptoms and Treatment do not Match Diagnosis

If your prescribed treatment is not working and you continue to get worse, malpractice may be involved. Perhaps the medication you are prescribed may cause you to get sicker or develop new symptoms. However, not every new symptom may be a result of the treatment or surgery, so keep track of how and when symptoms appeared.

  1. Understaffed Facilities

If a hospital or facility is not adequately staffed, patients may not be monitored properly or receive prompt and appropriate care, so negligence can occur. For example, if the patient did not receive proper medication on schedule, or monitors and calls for nurses were ignored, the neglect may lead to injury.

  1. Lack of Informed Consent

Patients need to be told of the risks of procedures and surgery and reasonable alternatives. The patients are then given a consent form stating they understand the risks and are still willing to go ahead with it. What is explained to the patient should normally be in the medical records. Patients have a right to ask questions and have them answered. If medical professionals fail advise the patient of the risks and alternatives and the substantial factor test required by the MCARE Act is satisfied, there may be a claim for lack of informed consent.

Pennsylvania Medical Malpractice Statute of Limitations

This is a very factually intensive issue. In medical malpractice cases, the statute of limitations is two (2) years from the time the claim accrued. When a claim accrues can be a matter of some contest. Typically, the discovery rule states that the statute of limitations expires after the date the patient knew or, in the exercise of reasonable diligence, should have known of the relationship of the harm to the medical care. In Pennsylvania, there is also a 7-year statute of repose. A minor does not have to initiate an action until two (2) years after reaching the age of 20. Cliff Rieders “wrote the book” on Medical Malpractice. It is the only major work in Pennsylvania, and it is encyclopedic in nature. Cliff teaches medical malpractice to lawyers in the state both through the Pennsylvania Bar Institute and the Pennsylvania Association for Justice. Cliff’s book is available through the Pennsylvania Association for Justice. All the proceeds remain with PAJ, and Cliff Rieders gets paid nothing for his work on this crucial text.

Call Us For Information

Medical malpractice law is highly regulated by a complex body of rules. For a successful medical malpractice claim, the burden of proof is on the injured patient, so it is essential to have a skilled medical malpractice lawyer.

Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann are familiar with the law and thoroughly prepared and committed to achieving a just outcome. With our sizeable staff, we offer strength in numbers while providing top-notch personal service.

Remember, Cliff Rieders “wrote the book” on medical and hospital malpractice in Pennsylvania, including pharmaceutical and medical device claims. Cliff’s work and teaching on medical malpractice is the Bible in Pennsylvania.

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