Articles Posted in Medical Malpractice

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In a medical malpractice action premised upon lack of informed consent, the issue presented was whether the trial court erred in refusing to strike prospective jurors for cause based upon their relationships to the case through their employer or their immediate family member's employer. The Pennsylvania Supreme Court concluded the trial court did not err in this regard. However, the Court concluded the trial court erred when it instructed the jury to consider information provided by the defendant surgeon's qualified staff in deciding the merits of the informed consent claim. Because a physician's duty to provide information to a patient sufficient to obtain her informed consent is non delegable, the Court reversed the Superior Court's order affirming the judgment entered in favor of the defendant, and remanded for a new trial. View "Shinal v. Toms M.D." on Justia Law

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In a discretionary appeal, the Pennsylvania Supreme Court addressed a legislative-process challenge to a 1988 enactment. This issue was raised in the context of a professional negligence lawsuit filed in 2010, asserting causes of action for wrongful birth. Rebecca Sernovitz sought medical care after becoming pregnant. Because she and her husband are both of Ashkenazi Jewish heritage, their child was at increased risk of suffering from a genetic disorder known as familial dysautonomia (“F.D.”). Her treating physicians, negligently misinformed her about the test results, telling her she was not a carrier. Thereafter, Mrs. Sernovitz gave birth to a son, Samuel, who suffered from F.D. and would suffer from the disorder for the rest of his life. Mrs. Sernovitz later learned that both she and her husband were carriers of the mutation. If she had been correctly informed of the results of her test in a timely manner, further testing would have ensued, which would eventually have revealed Samuel’s condition while he was still in utero. Had that occurred, Mrs. Sernovitz would have obtained an abortion. In October 2010, plaintiffs Mr. and Mrs. Sernovitz filed an amended complaint against the health-care providers and their employers and corporate parents (“Defendants”), asserting claims for wrongful birth and seeking damages for medical expenses and emotional distress. Although Section 8305(a) of the Judicial Code barred such claims, plaintiffs alleged that Act 47 of 1988 (of which Section 8305 was enacted) was unconstitutional in its entirety on several grounds. In particular, they averred that: the act’s original purpose was changed during its passage through the General Assembly, contrary to Article III, Section 1; it contained more than one subject, in violation of Article III, Section 3; and, in its final form, it was not considered on three days in each House, thus failing to conform with Article III, Section 4. The common pleas court determined that the act complied with Article III, sustained the preliminary objections on the basis that the wrongful-birth claims were barred by Section 8305, and dismissed the amended complaint. A three-judge panel of the Superior Court reversed in a published decision. Having stricken Section 8305, the Superior Court reversed the common pleas court’s order dismissing the amended complaint and remanded for further proceedings. Defendants moved for reconsideration, and appealed to the Supreme Court when their motion was denied. The Supreme Court disagreed with the Superior Court’s decision, reversed, and remanded for reinstatement of the common pleas court’s order dismissing the complaint. View "Sernovitz v. Dershaw" on Justia Law

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In this negligence action, appellant 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 Appellees Pennsylvania Hospital (the “Hospital”), Contributors to Pennsylvania Hospital, and several nurses and doctors. Joseph Fusco (“Decedent”) arrived at the emergency department of the Hospital, complaining of shortness of breath, rapid breathing, and wheezing. He was admitted to the Intensive Care Unit (“ICU”) and given medication, which failed to alleviate his symptoms. As a result, Decedent, who suffered from a number of pre-existing conditions, was intubated and placed on a ventilator in order to assist with his breathing. Decedent remained on a ventilator in critical condition for ten days. In an attempt to wean Decedent from the ventilator, a physician at the Hospital performed a tracheotomy. The tracheotomy site had become blocked; re-insertion of the tube went into Decedent's throat causing air outside of his lungs to accumulate and collapse his lungs and trachea. The Decedent was again intubated, this time through his mouth. However, by this time, he suffered cardiac arrest and died. Appellant, as executor of Decedent's estate, brought a negligence action against the Hospital and the nurses and doctors that treated Decedent shortly before his death. When a hospital patient experiences an acute medical emergency, such as that experienced by Decedent in this 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. Accordingly, we hold that the trial court’s grant of a nonsuit under Section 1303.516(a) was erroneous in the instant case, and that the question of whether a reasonably prudent person in Decedent’s position would be justified in his belief that the care rendered by Dr. Malaisrie was rendered by her as an agent of the Hospital should have proceeded to the jury." The Supreme Court, therefore, reversed the Superior Court’s decision affirming the trial court’s grant of a nonsuit in favor of the Hospital on this issue, and remanded the matter for further proceedings. The Court affirmed the Superior Court's decision to the extent it affirmed the trial court's grant of a nonsuit in favor of one of the nurses. View "Green v. Pennsylvania Hospital" on Justia Law

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Appellee Maria Brady had a lengthy history of foot problems. By 2007, both of her feet were in pain due to toe deformities. Appellee’s podiatrist, William Urbas, D.P.M., successfully treated toes on her left foot with surgery; he then turned his attention to her right foot. One of Appellee’s primary complaints on her right foot pertained to a hammer-toe condition of her second toe: this deformity caused the middle of Appellee’s second toe to rise above the plane of the foot, which in turn caused rubbing and pain when Appellee wore shoes. Dr. Urbas performed a total of four operations between March 2008 and January 2010. Before each surgery, he explained the risks and complications that could occur, and Appellee signed a consent form acknowledging her awareness of these possible outcomes. The first operation did not finally alleviate Appellee’s condition, and Dr. Urbas eventually performed three more surgeries, each involving, among other things, the removal of additional bone material with the expectation that the foot would, over time, generate soft tissue to fill the gap and provide flexibility. Nevertheless, Appellee’s pain persisted and, in the end, her toe was less stable and significantly shorter than it had been initially. In August 2010, Appellee consulted a different podiatrist, Dr. Harold Schoenhaus, who performed a bone-graft operation which returned the toe to approximately ninety percent of its original length. This procedure also had the effect of restoring some of the toe’s stability and substantially reducing the pain. Appellee testified that she was pleased with the outcome of Dr. Schoenhaus’ surgery and that she returned to all levels of activity. In December 2010, Appellee filed a complaint against Dr. Urbas, alleging that he negligently treated her toe in the three follow-up surgeries performed after March 2008. In this appeal by allowance involving alleged medical negligence, the issue before the Supreme Court centered on whether a doctor may introduce evidence that the patient was informed of and acknowledged various risks of surgery, although the complaint does not assert a cause of action based on a lack of informed consent. After unsuccessfully moving for a new trial on the basis that the trial court erred in admitting the consent evidence, Appellee appealed. The Superior Court vacated and remanded for a new trial. In concluding that the trial court had abused its discretion, the Superior Court court adopted the reasoning of the Supreme Court of Virginia regarding the relevancy of consent evidence in a medical malpractice case: assent to treatment does not amount to consent to negligence, regardless of the enumerated risks and complications of which the patient was made aware. In a trial on a malpractice complaint that only asserts negligence, and not lack of informed consent, evidence that a patient agreed to go forward with the operation in spite of the risks of which she was informed is irrelevant and should be excluded. The Supreme Court affirmed, holding that evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence. View "Brady v. Urbas" on Justia Law

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In a medical malpractice case, the issue presented for the Supreme Court's review centered on whether the trial court properly gave an "error in judgment" jury instruction. The underlying case arose out of the death of a two-month-old child while under the care of his pediatricians. Appellees sued the pediatricians. Their experts testified that the doctors deviated from the standard of care by failing to refer the child for further testing. The trial judge held a charging conference and stated that all of the doctors' proposed points for charge would "either be read or covered." The judge, however, did not say which (if any) proposed changes would actually be read to the jury. Appellees did not object at the time. The judge then proceeded to discuss one of the doctors' proposed "error in judgment" charge. Counsel for Appellees objected that the instruction was inappropriate for this case. The judge ultimately included the "error in judgment" charge when instructing the jury. The jury later ruled in the doctors' favor. Appellees filed timely post-trial motions arguing, among other things, the trial court erred in giving the "error in judgment" charge. Approximately one month after Appellees filed their post-trial motions (and before the trial court ruled on those motions), the Superior Court filed its decision in "Pringle v. Rapaport," (980 A.2d 159 (Pa.Super. 2009)). In that case, the trial court had given a charge very similar to the one given here. Approximately one year later, the Superior Court decided Pringle, holding: "such an instruction should never be given because it 'wrongly suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment.'" The trial court here denied Appellees' post-trial motions and entered judgment in the doctors' favor. The Supreme Court concluded the Superior Court applied Pringle correctly to the circumstances of this case. The case was remanded to the trial court for further proceedings.View "Passarello v. Grumbine" on Justia Law

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The issue before the Supreme Court in this case was whether a pathologist was competent to testify as an expert witness regarding the standard of care in a medical malpractice action asserted against a board-certified general surgeon. Decedent Mildred Anderson sought treatment from surgeon Gary McAfoos, M.D. Shortly thereafter, Mrs. Anderson took a turn for the worse and died from sepsis in response to surgery ultimately conducted by Dr. McAfoos and his practice partners. Mrs. Anderson's estate sued, and at trial proferred the testimony of a pathologist, who asserted that Dr. McAfoos and his agents' acts fell below ordinary standards of care by allowing Mrs. Anderson's discharge from the hospital despite certain indicators that she was suffering from a serious infection (that ultimately lead to her death). The doctor objected to Mrs. Anderson's use of the pathologist as an expert, arguing he was incompetent to assess the standard of care on a doctor who sees patients, "[h]e can't possibly second guess care and treatment on a patient when he doesn't see patients." The trial court sustained the objection to the expert's testimony; subsequently the doctor moved for nonsuit which was granted. Upon review, the Supreme Court concluded that Mrs. Anderson did not properly preserve her claim that the expert's credentials satisfied the requirements of the state competency statute, and accordingly, could not advance her contention that he should have been allowed to render standard-of-care testimony against a board-certified surgeon. View "Anderson v. McAfoos, et al" on Justia Law

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This appeal arose from a medical malpractice action brought by Appellant Thomas Bruckshaw as Administrator of the Estate of Patricia Bruckshaw (Decedent) and in his own right, against Appellees Frankford Hospital of Philadelphia (Frankford Hospital), Jefferson Health System, Inc., Brian P. Priest, M.D., and Randy Metcalf, M.D. The issue before the Supreme Court was whether a court was empowered to remove a principal juror without any reason and without any notice to the parties, and replace her with the last possible alternate, without notice, after all evidence was submitted and the jury had already retired to deliberate. Upon review, the Court concluded that the removal of a juror can only be done by a trial court, on the record, with notice to the parties, for cause. Furthermore, the Court concluded that the trial court committed reversible error for which the aggrieved party was not required to demonstrate prejudice. View "Bruckshaw v. Frankford Hospital" on Justia Law

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The issue on appeal in this case was one of first impression: whether a medical general practitioner who provides incidental mental health treatment to a patient, with whom he then engages in a sexual affair, may be held to a particularized "specialist duty," applicable to mental health professionals, that prohibits consensual sexual contact with patients, such that the defendant general practitioner may be subject to medical malpractice liability in tort. Upon review of the trial court record, the Supreme Court declined to impose such a duty as a matter of Pennsylvania common law. Accordingly, the Court vacated the Superior Court's decision and remanded the case for further proceedings on any preserved issues remain that were not addressed as a result of the Superior Court's disposition. View "Thierfelder v. Wolfert" on Justia Law

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Appellants sought a new trial in this medical battery/lack-of-consent case on the ground that the trial court erroneously instructed the jury on the technical elements of battery, particularly the intent to cause a harmful or offensive contact. They further maintained that the charge was erroneous because it instructed the jury that Appellants-Plaintiffs were required to prove that the surgeon who performed the allegedly unauthorized operation did so with the intent to harm. Viewing the jury charge in its entirety, the Supreme Court concluded that it clearly and accurately set forth the law. Contrary to Appellants' contentions, the jury charge did not require proof that the surgeon performed the operation with the intent to harm. Accordingly, the Court affirmed the order of the Superior Court, which affirmed the trial court's entry of judgment on the verdict in favor of Appellees. View "Cooper v. Lankenau Hospital, et al" on Justia Law

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At issue in this direct appeal to the Supreme Court was a statutory prerequisite to the obligation of the Insurance Department to defend certain medical professional liability actions asserted against health care providers, and to the requirement for payment of claims asserted in such actions from the Medical Care Availability and Reduction of Error Fund. Specifically, resolution of the appeal turned on when, under the governing statute, a "claim" is "made" outside a specified four-year time period. On June 4, 2007, Joanna Ziv filed a praecipe for a writ of summons naming Appellant Phillip Yussen, M.D. and other medical providers as defendants. A complaint was filed on August 2, 2007, alleging medical negligence last occurring on July 7, 2003. Appellant’s primary insurer, Pennsylvania Healthcare Providers Insurance Exchange, requested that the claim be accorded Section 715 status by the Insurance Department. The Department denied such request, however, on the basis that the claim had been made less than four years after the alleged malpractice. Appellant initially challenged this determination in the administrative setting, and a hearing ensued. Before the examiner, Appellant argued that, consistent with the policy definition of a "claim," the date on which a claim is made for purposes of Section 715 cannot precede the date on which notice is provided to the insured. Appellee, on the other hand, contended that a claim is made when it is first asserted, instituted, or comes into existence - including upon the tender of a demand or the commencement of a legal action - and that notice to the insured or insurer is not a necessary prerequisite. In this regard, Appellee Medical Care Availability & Reduction of Error Fund highlighted that Section 715 does require "notice" of the claim to trigger the provider's obligation to report the claim to the Fund within 180 days, but the statute does not contain such an express notice component in delineating the four-year requirement. The Commonwealth Court sustained exceptions to the hearing examiner's recommendation lodged by Appellee and entered judgment in its favor. In its review, the Supreme Court found "claim" and "made" as used in Section 715 ambiguous. The Court determined that for purposes of Section 715, the mere filing of a praecipe for a writ of summons does not suffice to make a claim, at least in absence of some notice or demand communicated to those from whom damages are sought. The Court remanded the case for entry of judgment in Appellant's favor. View "Yussen v. Med. Care Availability & Reduction of Error Fund" on Justia Law