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Sofitel Hotel, Philadelphia

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8th Annual Medical Malpractice Seminar Sofitel Hotel, Philadelphia November 19, 2013 9:00 a.m. 3:45 p.m. Presented by: Clifford A. Rieders, Esq. – PowerPoint PPT presentation

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Title: Sofitel Hotel, Philadelphia


1
8th Annual Medical Malpractice Seminar
  • Sofitel Hotel, Philadelphia
  • November 19, 2013
  • 900 a.m. 345 p.m.

Presented by Clifford A. Rieders, Esq.
Rieders, Travis, Humphrey, Harris Waters,
Waffenschmidt Dohrmann 161 West Third
Street Williamsport, PA 17701 Phone
570-323-8711 Fax 570-567-1025 Email
crieders_at_riederstravis.com www.riederstravis.com
2
MCARE Act-S.O.L
2
3
MATHARU V. MUIR29 A.3D 375 (PA. SUPER.
2011)JUDGE MUSMANNO
  • Parents of deceased infant brought wrongful death
    and survival actions against clinics involved in
    care of Rh-negative mother during pregnancy.
  • At issue is 513 of the Mcare Act.
  • The specific statue of repose set forth at
    513(d) of the Mcare Act controls over the general
    statutory language of 42 Pa.C.S.A. 5524
    governing statute of limitations for wrongful
    death and survival actions, and affirmed the
    trial court decision.
  • Pursuant to 513 plaintiff is required to
    commence both wrongful death and survival action
    within two (2) years after the date of death of
    the child. Plaintiffs commenced their wrongful
    death/survival action by writ of summons within
    two (2) years of childs death.
  • Previously survival actions ran two (2) years
    from the date of the harm, not necessarily two
    years from the date of death. The child suffered
    an injury either at his birth or upon his death
    (two days later). Plaintiffs commenced their
    survival cause of action well within the two
    years of the childs injury.

3
4
MATHARU V. MUIR29 A.3D 375 (PA. SUPER.
2011)JUDGE MUSMANNO
  • The evidence viewed in the light most favorable
    to plaintiffs reflects that the child was in a
    class of persons whose health/life was likely to
    be threatened by Defendants failure to
    administer RhoGAM to mother in 1998.
  • It was reasonably foreseeable that Defendants
    failure to administer RhoGAM to mother in 1998
    could injure her future unborn children.
  • The purpose of administering RhoGAM is to protect
    the future unborn children of mother and father.
    Under these circumstances, there is a duty owed
    by Defendants to the child.
  • Courts have adopted a five-factor test as to
    whether to impose a duty.

4
5
OSBORNE V. LEWIS 59 A.3D 1109 (PA. SUPER
2012)JUDGE OLSON 
  • LASIK surgery performed June 1, 2000. August
    2004, patient complained of decreased vision
    which was confirmed. After seeing doctors and
    specialists, patient was told that the LASIK
    surgery caused his vision loss.
  • Patient filed malpractice claim on July 24, 2007.
  • Patients medical malpractice action was subject
    to seven year statute of repose in the MCARE Act
    where the surgery took place prior to MCAREs
    adoption and the injury manifested itself after
    the adoption of MCARE.
  • The court further held that the seven year
    statute of repose could not be tolled by the
    doctrine of fraudulent concealment because the
    doctrine of fraudulent concealment only applied
    to MCAREs two year statute of repose applicable
    to wrongful death and survival actions.
  • Plaintiffs claims against Appellants are barred
    by the MCARE Act's statute of repose.

5
6
OSBORNE V. LEWIS 59 A.3D 1109 (PA. SUPER
2012)JUDGE OLSON
  • The statute mandates that no medical malpractice
    claim may be commenced seven years from the date
    of the alleged tort or breach of contract. 40
    P.S. 1303.513
  • It was undisputed that the tort or breach of
    contract occurred on the date of surgery, June 1,
    2000, which was more than seven years prior to
    the filing of the claim. Fraudulent concealment
    does not apply to toll the statute of repose, 40
    P.S. 1303.513.
  • Mcare Act specifially provides for the doctrine
    of fraudulent concealment to apply in cases of
    wrongful death or survival actions.
  • The absence of such an express provision for
    other circumstances evidences legislative intent
    that the fraudulent concealment exception does
    not apply to claims addressed by subsection (a).

6
7
YUSSEN V. MEDICAL CARE AVAILABILITY AND REDUCTION
OF ERROR FUND 46 A.3D 685 (PA. 2012)
  • Physician submitted a claim to the MCARE Fund,
    requesting indemnity and defense coverage for a
    medical malpractice claim brought against him.
    The MCARE Fund denied coverage because the claim
    was made more than four years after the alleged
    malpractice.
  • For the purposes of 513 of the MCARE Act, if a
    claim against a health care provider is made more
    than four years after the breach of contract or
    tort occurred, the claim should be defended by
    the Department of Insurance.
  • The mere filing of a praecipe for a writ of
    summons does not suffice to make a claim for the
    purpose of the statute of limitations, at least
    in the absence of a demand communicated to those
    from whom damages are sought.

7
8
Nursing Homes
8
9
SCAMPONE V. GRANE HEALTHCARE CO.11 A.3D 967 (PA.
SUPER. 2010)JUDGE BOWES
  • Nursing home resident brought cause of action for
    malpractice, alleging that dehydration and
    malnutrition caused residents fatal heart
    attack.
  • Court held that evidence was sufficient to find
    that nursing home could be liable for residents
    death under a theory of corporate negligence.
  • There is sufficient evidence of misconduct to
    warrant submission of the issue of punitive
    damages to the jury.

9
10
SCAMPONE V. GRANE HEALTHCARE CO.11 A.3D 967 (PA.
SUPER. 2010)JUDGE BOWES
  • Nursing home is analogous to a hospital in the
    level of its involvement in a patients overall
    health care.
  • Nursing home provides comprehensive and continual
    physical care for its patients.
  • Nursing home is akin to a hospital rather than a
    physicians office.
  • The nursing home was understaffed, the nurses
    inadequate and state surveys showed that there
    were many complaints.

10
11
SCAMPONE V. HIGHLAND PARK CARE CENTER 11 A.3D
967 (PA. SUPER. 2010)JUDGE BOWES 
  • Estate of nursing home resident who suffered a
    fatal heart attack due to malnutrition and
    dehydration brought action against nursing home
    facility and management company.
  • Nursing home facility and management company were
    subject to potential direct liability for
    corporate negligence, as well as vicarious
    liability for residents death. Nursing home and
    management company are not immune or exempt from
    corporate liability for negligence.
  • Nursing home and management company were subject
    to potential direct liability for residents
    death where the requisite resident-agency
    relationship exists to establish that the agency
    owes the resident a duty of care.

11
12
SCAMPONE V. HIGHLAND PARK CARE CENTER11 A.3D 967
(PA. SUPER. 2010)JUDGE BOWES
  • Staff failed to conduct ordered DUI testing, to
    ensure that the resident was consuming sufficient
    fluids and food, and falsified records to show
    that medications or treatment were provided when
    it was not.
  • The administrators temporarily increased staff
    for state inspections.
  • There is no persuasive argument for the
    proposition that the availability of a vicarious
    liability claim is a substitute for recognizing a
    corporation's direct and non-delegable duty or
    duties of care to a plaintiff.

12
13
SCAMPONE V. HIGHLAND PARK CARE CENTER11 A.3D 967
(PA. SUPER. 2010)JUDGE BOWES
  • Superior Court remanded for new trial Pa Supreme
    Court affirmed, remanded and held that a nursing
    home and affiliated entities are subject to
    potential direct liability for negligence, where
    the requisite resident-entity relationship exists
    to establish that the entity owes the resident a
    duty of care.
  • A corporation may owe duties of care directly
    to a plaintiff separate from those of its
    individual agents, such as duties to maintain
    safe facilities, and to hire and oversee
    competent staff.
  • That a corporation acts through agents does not
    preclude hailing a corporation into court on
    direct liability tort claims.
  • There is no immunity or exemption from direct
    liability, which is an exception to the general
    rule that an entity must meet the obligations it
    incurs in functioning. Court declined
    invitation to recognize a judicial immunity for
    nursing homes.

13
14
SCAMPONE V. HIGHLAND PARK CARE CENTER 11 A.3D
967 (PA. SUPER. 2010)JUDGE BOWES
  • Rejected argument that Thompson created a
    corporate cause of action only against hospitals.
  • Inquiry is not whether an entity is similar to a
    hospital.
  • The relevant question is whether the legal
    principles explicated in Thompson, or elsewhere
    in our decisional law, apply to describe
    appellants legal duty or obligations to Ms.
    Scampone, given the considerations which
    pertain. 57 A.3d 605.
  • In essence the question is whether there was
    sufficient evidence of a relationship with the
    entities to establish that duties of care exist
    under the Restatement Section 323 or the Althaus
    factors. Case remanded for that determination.

14
15
HALL V. EPISCOPAL LONG TERM CARE54 A.3D 381 (PA.
SUPER 2012)JUDGE JACKSON
  • Estate of nursing home resident brought
    negligence action against nursing home facility.
  • Superior Court held that the issue of whether
    punitive damages were warranted in nursing home
    case was a question for the jury.
  • Evidence of understaffing of the nursing home
    would support a claim of corporate negligence,
    and that evidence supported finding that nurses
    were negligent when they caused resident to
    suffer from pain when given restorative care.
  • A nursing home is akin to a hospital in the level
    of its involvement in a patients overall care.
    Here, the court held that the nursing home is
    subject to vicarious liability for the acts and
    omissions of the RNs and CNAs since Episcopal was
    responsible for the full operation and management
    of the nursing home.
  •  

15
16
HALL V. EPISCOPAL LONG TERM CARE54 A.3D 381 (PA.
SUPER 2012)JUDGE JACKSON
  • Case was remanded for further proceedings
    concerning punitive damages, as trial court erred
    in failing to present evidence for punitive
    damages to the jury as well as submitting to the
    jury the question of whether punitive damages
    were appropriate.
  • Evidence similar to that presented in Scampone
    was sufficient for punitive damages, i.e., acted
    in an outrageous fashion with reckless disregard
    to the rights of others and/or created an
    unreasonable risk of harm to the resident by
    chronic understaffing, manipulated staffing
    around state inspections, falsified records. The
    resident went entire months without a bath and
    was left to lie in her own filth.

16
17
LAFFE, ET. AL, V. JEWISH HOME OF GREATER
HARRISBURG, ET. AL., NO. 09 CV 10920 (DAUPHIN
C.P. AUGUST 14, 2012)JUDGE TURGEON
  • Defendants filed motion for Summary Judgment in
    nursing home abuse and neglect case.
  • The Court allowed claims of corporate negligence
    to proceed against both personal care and skilled
    nursing facility even though Scampone does not
    expressly extend to the latter Scampone v. Grane
    HealthCare Co., 11 A.3d 967 (Pa. Super. 2010),
    appeal granted, 15 A.3d 427 (Pa. 2012).
  • A negligence per se claim under Pennsylvanias
    Neglect of Care-Dependent Person Statute, 18
    Pa.C.S.A. 2713, does not create an independent
    basis of tort liability, but rather establishes,
    by reference to a statutory scheme, the standard
    of care appropriate to the underlying tort.
  • To prevail on a corporate negligence claim,
    plaintiff need only produce evidence that
    defendants had actual or constructive knowledge
    of the defect or procedures that created the
    harm and that its negligence was a substantial
    factor in bringing about the harm.
  • All of the entities are the same in this case.
    It is not clear that Scampone would not apply to
    the skilled nursing facility.

17
18
GRAMMER V. JOHN J. KANE REGIONAL CENTERS-GLEN
HAZEL570 F.3D 520 (3D CIR. 2009)JUDGE NYGAARD
  • Daughter brought a wrongful death and survival
    claim under Section 1983 claiming that violations
    of the Federal Nursing Home reform Amendments
    (FNRA), 42. U.S.C. 1396r et.seq. led to her
    mothers death.
  • Court of Appeals held that Federal Nursing Home
    Reform Amendments were sufficiently
    rights-creating that they could be enforced under
    Section 1983.
  • Rights conferred by Federal Nursing Home Reform
    Amendments upon county nursing home resident and
    Medicaid recipient were not so vague or
    amorphous that their enforcement, via Section
    1983, would strain judicial resources as required
    to confer upon daughter individual federal rights
    enforceable under Section 1983, arising out of
    nursing homes failure to provide resident proper
    care.

18
19
GRAMMER V. JOHN J. KANE REGIONAL CENTERS-GLEN
HAZEL570 F.3D 520 (3D CIR. 2009)JUDGE NYGAARD
  • Various rights were clearly delineated by the
    provisions at issue, and the repeated use of the
    phrases must provide, must maintain and must
    conduct were not unduly vague or amorphous, but
    made clear that nursing homes must provide a
    basic level of service and care for residents and
    Medicaid patients
  • The lack of care resulted in decubitus ulcers,
    malnutrition, and sepsis resulting in death.
  • The issue is whether a violation of the FNRA
    gives rise to a 1983 claim.
  • In Blessing, the Supreme Court set forth a
    three-part test to determine whether a statute
    confers a federal right that may be redressed
    through a 1983 claim. First, courts should
    determine whether Congress intended that the
    statutory provision in question benefits the
    plaintiff second, courts should decide whether
    the right asserted is so vague and amorphous
    that its enforcement would strain judicial
    competence and lastly, courts should determine
    whether the statute unambiguously imposes a
    binding obligation on the states.

19
20
BLESSING THREE-PART TEST
  • The plaintiff is an individual that the statute
    is meant to protect,
  • The right is not so vague and amorphous for
    enforcement and
  • The statute unambiguously imposes an obligation
    on the state.
  • Once those three factors are established, the
    right to bring a 1983 claim is presumed unless
    rebutted by Congress having made a specific
    foreclosure of a remedy.

20
21
Informed Consent/Battery
21
22
COOPER EX REL. COOPER V. LANKENAU HOSPITAL51
A.3D 183 (PA.2012)JUSTICE BAER
  • Patient and patients child brought medical
    battery action against hospital and physicians,
    alleging that physician had delivered baby by
    cesarean section despite patients refusal to
    consent to the procedure.
  • Was performance of a c-section consented to, and
    if not is it a battery?
  • In a medical battery/lack-of-consent case
    plaintiff does not need to prove that the
    defendant surgeon performed the unauthorized
    operation with intent to harm the patient.

22
23
COOPER EX REL. COOPER V. LANKENAU HOSPITAL51
A.3D 183 (PA.2012)JUSTICE BAER
  • Battery is an act done with the intent to cause
    a harmful or offensive contact with the body of
    another , and directly results in the harmful or
    offensive contact with the body of another.
  • If the doctor operated without consent, the jury
    must find that the battery was committed.
  • The charge further acknowledged properly the
    physician need not be negligent to be liable for
    battery, and that physical injury in not required
    to prove an unauthorized touching. Order of
  • Superior Court which affirmed the Trial Courts
    entry of judgment on the verdict in favor of
    appellees/Lankenau Hospital is affirmed.

23
24
Certificate of Merit
24
25
LIGGON-REDDING V. SUGARMAN659 F.3d 258
(2011)JUDGE NYGAARD
  • Certificate of merit rule applies in federal
    court.

25
26
Ex Parte Communication
26
27
GENTILE V. TIMKONO. 215 (CLINTON CO., AUG. 11,
2011)JUDGE WILLIAMSON
  • Opinion and reaffirmation of opinion that a
    court, under Rule 4012, can prevent defendants
    from talking to a pathologist who they employ.
    The pathologist had performed a post-mortem on a
    deceased infant. The court ruled that 4003.6 did
    not apply because a doctor cannot be considered
    treating a dead person.
  • Court held that parents mental health treatment
    records and employment records were discoverable
    in a stillbirth case in which the parents claimed
    damages for future lost earnings. 

27
28
Liens
28
29
E.D.B EX REL. D.B. V. CLAIR987 A.2D 681 (PA.
2009)(JUDGE MCCAFFERY)
  • The parents and the guardians of an incapacitated
    minor settled a medical malpractice claim.
  • Lower court signed an order that settled the case
    and required payment, from the settlement
    proceeds, to satisfy a Department of Public
    Welfare (DPW) subrogation lien arising from
    medical expenses paid on behalf of the
    incapacitated minor. Parents and guardians
    appealed the payment.
  • Minor suffered severe physical and mental
    disabilities from medical negligence at the time
    of birth.
  • Court held that DPW was entitled to a portion of
    settlement proceeds that the minor alone
    recovered during her majority.
  • Court held that a Medicaid beneficiary has a
    cause of action against his tortfeasor to recover
    and reimburse DPW for medical benefits received
    during beneficiary's minority.
  • After settlement, the trial court required
    payment of the subrogation lien held by the
    Department of Public Welfare (DPW) for medical
    expenses paid on behalf of the minor out of the
    settlement proceeds.

29
30
E.D.B EX REL. D.B. V. CLAIR987 A.2D 681 (PA.
2009)(JUDGE MCCAFFERY)
  • Plaintiffs appeal asserted that neither the
    parents nor the minor could recover for medical
    expenses.
  • The parents were time-barred from seeking
    compensation for medical expenses their daughter
    incurred when the daughter was still a minor.
  • At common law, only the parents, not the minor
    herself, could recover for medical expenses.
  • The issue was whether DPW can obtain
    reimbursement from a tortfeasor for Medicaid
    expenditures made on behalf of a disabled minor
    when the claim by the minors parents is barred
    by the statute of limitations.
  • The Pennsylvania Supreme Court decided that DPW
    can resolving incompatible holdings reached by
    the Supreme Court in this case and the
    Commonwealth Court in favor of the Commonwealth
    Courts decision in Shaffer-Doan ex re. Doan v.
    Com., DPW, 960 A.2d 500 (Pa. Cmwlth. 2008).

30
31
E.D.B EX REL. D.B. V. CLAIR987 A.2D 681 (PA.
2009)(JUDGE MCCAFFERY)
  • Minors can seek third party medical expenses
    incurred on their behalf -- As long as their
    parents claims do not duplicate them.
  • The Fraud and Abuse Control Act (FACA, 62 P.S.
    1404, 1409), applied to the minors settlement
    proceeds.
  • Both the parents and the injured minor were the
    intended beneficiaries of medical assistance
    benefits from DPW.

31
32
ZALEPPA V. SEIWELL9 A.3D 632 (PA. SUPER. 2010)
JUDGE MUNDY
  • Injured motorist brought action against other
    motorist for automobile accident.
  • Court entered judgment in favor of injured
    motorist and denied other motorist's post-trial
    motion, which requested that court enter order
    directing her to pay verdict by naming Medicare,
    along with injured motorist and her attorneys, as
    payees on draft satisfying verdict, or by paying
    verdict into court pending notification from
    Medicare that all outstanding Medicare liens had
    been satisfied. Other motorist appealed.
  • Judgment entered following a trial in which jury
    returned a verdict of 15,000.
  • There is no right by the defendant to put money
    aside for a potential outstanding Medicare lien.
    There is no legal basis to assert the interests
    of the United States government as to
    reimbursement of the Medicare liens

32
33
WOS V. E.M.A.133 S.CT. 1391 (2013) JUSTICE
KENNEDY
  • Guardian at litem for minor child, who had been a
    recipient of Medicaid benefits and who had
    received an award from settlement of medical
    malpractice suit, brought 1983 action against
    North Carolina Department of Health and Human
    Services, which had placed Medicaid lien on
    settlement proceeds, seeking declaratory and
    injunctive relief for deprivation of child's
    rights under federal Medicaid anti-lien
    provision.
  • The Supreme Court held that a North Carolina
    statute governing the states reimbursement from
    proceeds of tort damages recovered by a Medicaid
    beneficiary, is preempted by the federal Medicaid
    anti-lien provision, to the extent that the North
    Carolina statute can be interpreted as creating a
    conclusive presumption that one-third of a
    Medicaid beneficiary's tort recovery represents
    compensation for medical expenses.

33
34
WOS V. E.M.A.133 S.CT. 1391 (2013)JUSTICE
KENNEDY
  • The Medicaid statutes set both a floor and a
    ceiling on a State's potential share of a
    beneficiary's tort recovery.
  • Medicaid statutes require an assignment to the
    State of the right to recover that portion of a
    settlement that represents payments for medical
    care, but also precluding attachment or
    encumbrance of the remainder of the settlement.
  • The Medicaid anti-lien provision prohibits a
    State from making a claim to any part of a
    Medicaid beneficiary's tort recovery not
    designated as payments for medical care.

34
35
TRISTANI V. RICHMAN652 F.3D 360 (3RD CIR.
2011)CIRCUIT JUDGE HARDIMAN
  • This case is a punitive class action filed by
    three Pennsylvania Medicaid beneficiaries subject
    to Pennsylvania Department of Welfare liens.
  • States Medicaid liens on settlements or
    judgments (for medical costs) not prohibited by
    anti-lien and anti-recovery provisions of the
    Social Security Act.
  • Pennsylvania's default apportionment mechanism to
    divide Medicaid beneficiaries' settlements or
    judgments against third parties between medical
    costs and other expenses was consistent with
    federal law.
  • In determining what portion of a Medicaid
    beneficiary's third-party recovery state may
    claim in reimbursement for Medicaid expenses,
    state must have in place procedures that allow a
    dissatisfied beneficiary to challenge the default
    allocation.
  • This implied exception for medical costs to
    anti-lien and anti-recovery provisions was
    assumed but not decided by the Supreme Court in
    Arkansas Department of Health and Human Services
    v. Ahlborn, 547 U.S. 268, 280 n. 9, 29192, 126
    S.Ct. 1752, 164 L.Ed.2d 459 (2006).

35
36
ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES
V. AHLBORN126 S.CT. 1752 (2006)JUSTICE STEVENS
  • Medicaid recipient sued the Arkansas Department
    of Human Services, challenging ADHSs assertion
    of claim or lien against proceeds received by
    recipient in settlement of personal injury
    lawsuit.
  • Supreme Court held that Arkansas statute
    automatically imposing lien in favor of ADHS on
    tort settlement proceeds was not authorized by
    federal Medicaid law, to the extent that statute
    allowed encumbrance or attachment of proceeds
    meant to compensate recipient for damages
    distinct from medical costs.
  • Supreme Court held that the anti-lien provision
    of federal Medicaid law precluded Arkansas
    statute's encumbrance or attachment of proceeds
    related to damages other than medical costs.

36
37
KONIG V. YESHIVA IMREI CHAIM VIZNITZ OF BORO
PARK INC . ET AL.112-CV-00467-JG, DOC. 10,
(EASTERN DIST. NY, MARCH 30, 2012)JUDGE
GLEESON
  • Konig brought an action for damages against
    Yeshiva stemming from a 2008 accident where Konig
    was injured. The negligence action had been
    settled in March, 2011.
  • While the action was pending, Rawlingson behalf
    of Oxfordinformed Konig that Oxford asserted a
    claim against any settlement that Konig obtained
    in the action.
  • According to Rawlings, Oxford had paid
    approximately 24,000 for medical care
    necessitated by the incident, pursuant to its
    health insurance policy with Konig.
  • Rawlings demanded that Konig use any sums
    collected through the negligence suit to
    reimburse Oxford for the cost of these medical
    benefits.
  • The Medicare Law does not provide a private right
    of action express or implied to MAP providers
    (Medicare Advance Providers) for subrogation
    rights.
  • Federal jurisdiction denied.

37
38
KONIG V. YESHIVA IMREI CHAIM VIZNITZ OF BORO PARK
INC . ET AL.112-CV-00467-JG, DOC. 10, (EASTERN
DIST. NY, MARCH 30, 2012)JUDGE GLEESON
  • Although the Medicare statute clearly authorizes
    the government to bring an action to enforce its
    subrogation rights under its own Medicare
    insurance contracts, the statute does not
    expressly accord private MAP providers the same
    right.

38
39
MEDICARE SECONDARY PAYER-LIABILITY INSURANCE
(INCLUDING SELF-INSURANCE) SETTLEMENTS,
JUDGMENTS, AWARDS, OR OTHER PAYMENTS AND FUTURE
MEDICALS - INFORMATION
  • Where beneficiarys treating physician certifies
    in writing that treatment for the alleged injury
    related to the liability insurance (including
    self-insurance), settlement has been completed
    as of the date of the settlement, and future
    medical items and/or services for that injury
    will not be required.

39
40
Release of Claims
40
41
MALONEY V. VALLEY MEDICAL FACILITIES984 A.2D 478
(PA. 2009)JUDGE SAYLOR
  • The plaintiff husband brought a medical
    malpractice claim against a radiologist and
    internist and their associated medical
    institutions for failing timely to diagnose and
    treat his deceased wifes osteosarcoma.  
  • The plaintiff settled with the radiologist
    with the settlement funded by that physicians
    primary liability insurer and the Medical Care
    Availability and Reduction of Error Fund (MCARE
    fund) as an excess insurer.
  • The settlement released the radiologist and all
    of the institutional medical providers associated
    with both the radiologist and the internist.
  • The release unambiguously reserved claims
    against the internist in an amount limited to the
    amount of his maximum primary liability insurance
    coverage. The release expressly included a
    pro-rata reduction for the internist for any
    liability a verdict attributed to the settling
    defendants and the release included a
    hold-harmless commitment.

41
42
MALONEY V. VALLEY MEDICAL FACILITIES984 A.2D 478
(PA. 2009)JUDGE SAYLOR
  • The issue is whether the common-law rule
    requiring release of a principal upon release of
    an agent applies in the reverse scenario does
    the release of a principal hospital automatically
    release the agent despite an express reservation
    of claims against the agent-doctor.
  • The Pennsylvania Supreme Court held that the
    release of the principal (the medical
    institutions) did not release the
    agent-internist.
  • Court held that in a scenario entailing a
    plaintiffs surrender of vicarious liability
    claims only and express preservation of claims
    against an agent, the parties to a settlement
    should be afforded latitude to effectuate their
    express intentions.
  • Supreme Court explicitly disapproved Pallante v.
    Harcourt Brace Jovanovich, Inc., 629 A.2d 146 in
    which the Superior Court extended Mamalis v.
    Atlas Van Lines, Inc., 560 A.2d 1380 (1989) to
    hold that the release of the principal
    automatically operated as a release to the agent
    as a matter of law.

42
43
HMO
43
44
NORDI V. KEYSTONE HEALTH PLAN WEST, INC.989 A.2D
376 (PA. SUPER. 2010)JUDGE CLELAND
  • Plaintiff had health coverage, under an HMO with
    Highmark as a company determining coverage, when
    she was injured in a car accident.
  • The HMO authorized twenty outpatient physical
    therapy visits but denied coverage for further
    physical therapy sessions that were needed and
    prescribed by her physician.
  • As a result, the plaintiff discontinued her
    prescribed and necessary therapy and sued for
    breach of contract, bad faith and unfair trade
    practices.
  • The trial court granted summary judgment based
    upon the plain language of the contract to
    provide therapy over a 60-day period beginning
    with the first therapy session.

44
45
NORDI V. KEYSTONE HEALTH PLAN WEST, INC.989 A.2D
376 (PA. SUPER. 2010)JUDGE CLELAND
  • HMO Act exempted HMO from claims of bad claim
    under the Bad Faith Act.
  • Bad faith claim alleged failure to provide
    coverage, to investigate the claim to communicate
    with her, and to reach a fair settlement.
  • HMO Acts enabling legislation explicitly
    provides that HMOs are not subject to the law
    related to insurance providers.
  • Neither Highmark nor the HMO handled the claim in
    bad faith.  
  • A bad faith claim requires clear and convincing
    evidence of a frivolous or unfounded refusal to
    pay a claim, not mere negligence or bad judgment.
     

45
46
Misc. Trial Issues
46
47
TRIAL ISSUES
  • ADMISSIBILITY OF EVIDENCE
  • Patients Medical History
  • Inculpatory Statements by Treating Physician
  • EXPERT
  • JURY INSTRUCTION ON NURSES DUTY
  • REMITITTUR

47
48
RETTGER V. UPMC SHADYSIDE991 A.2D 915 (PA.
SUPER. 2010)JUDGE BENDER
  • An estate brought a wrongful death and survival
    claim arising from medical negligence resulting
    in the death of the patient.
  • The patient was diagnosed at age twenty-four with
    glioblastoma multiforme, an aggressive brain
    tumor with a differential diagnosis of brain
    abscess, after experiencing severe headaches.
  • Court held that trial court did not abuse its
    discretion by restricting evidence of patients
    medical history and refusing to admit allegedly
    inculpatory statements by treating physician.

48
49
RETTGER V. UPMC SHADYSIDE991 A.2D 915 (PA.
SUPER. 2010)JUDGE BENDER
  • Trial court correctly instructed jury on nurse's
    duty to safeguard patient from incompetent
    practice.
  • The patient was transferred to the defendant
    medical facility and came under the care of Dr.
    Bonaroti. A surgical procedure was scheduled for
    730 a.m. on Wednesday, November 19, 2003.
  • The day prior to the scheduled surgery, the
    patient displayed uneven pupil size and
    substantial pain. The nurse noted on the
    patients chart that his left eye was fixed and
    dilated which indicates an emergency condition.
    She also telephone Dr. Bonaroti and advised him
    about the condition.

49
50
RETTGER V. UPMC SHADYSIDE991 A.2D 915 (PA.
SUPER. 2010)JUDGE BENDER
  • The doctor and nurse differ as to what was
    communicated. Dr. Bonaroti did not report to the
    hospital or order emergency surgery and nurse
    Stalder did not invoke the nurse chain of command
    or Condition C.
  • At 600 a.m. nurse Stalder contacted Dr. Bonaroti
    who was already on his way to the hospital. The
    patients condition had worsened, he had been
    suffering from a fast growing brain abscess that,
    left unattended, had caused a brain herniation.
  • The trial court granted a new trial on the
    survival claim limited to damages after a jury
    awarded 2.5 million on the wrongful death claim
    but nothing on the survival claim.

50
51
RETTGER V. UPMC SHADYSIDE991 A.2D 915 (PA.
SUPER. 2010)JUDGE BENDER
  • Eliminating Patients Medical History.
  • It was not error to exclude additional evidence
    about alleged earlier failure to diagnose brain
    tumor.
  • Inculpatory Statements by Treating Physician
    and Hospitals Attempt to Amend Its Complaint.
  • It was co-defendant that tried to get in the
    statements.  There was no cross claim filed or
    proper joinder.  Therefore there was no reason to
    permit this at trial.  The hearsay statements
    were likewise not admissible.

51
52
RETTGER V. UPMC SHADYSIDE991 A.2D 915 (PA.
SUPER. 2010)JUDGE BENDER
  • Allowance of Physician to Testify as Expert.
  • The doctor is permitted to give an opinion with
    respect to the nurse. 
  • There is an overlap of expertise between a
    neurosurgeon and that of a neurosurgical nurse.
  • Instruction to the jury on nurses duty to
    protect patient from incompetent care. 
  • The charge is not flawed.  Its a direct quote
    from 49 Pa.ADC21-18(a)(3) which prescribes the
    duties of a registered nurse. 
  • The charge is an accurate reflection of the
    evidence.

52
53
RETTGER V. UPMC SHADYSIDE991 A.2D 915 (PA.
SUPER. 2010)JUDGE BENDER
  • Remittitur on Wrongful Death Claim and Award of
    New Trial and Survival Claim.
  • 2.5 million is not excessive for somebody who is
    unmarried and has no children or dependents and
    provide only limited services in his parents
    home, to which he returned on weekends. 
  •  
  • On survival damages, the jurys aware of zero
    damages bears no reasonable relationship to the
    loss actually sustained and the court did not err
    in awarding a new trial on the survival claim
    limited to damages. 

53
54
BUCKMAN V. VERAZIN54 A.3D 956 (PA. SUPER
2012)JUDGE BENDER
  • Patient brought medical malpractice action
    against surgeon, health system, and hospital,
    alleging medical negligence as a result of the
    care patient received after surgeon performed a
    sigmoid colectomy and colostomy on patient.
  • Discovery revealed conflicting statements by the
    physician as to why he performed the surgery in
    the manner he did.
  • As a result, plaintiff submitted discovery
    request for the medical records of all sigmoid
    colectomy and similar procedures by doctor in
    five preceding years, allowing for the redaction
    of all identifying information of the non-party
    patients.
  • Court of Common Pleas granted patient's motion to
    compel production of five years of non-party
    patients' surgical records, and defendants
    appealed.
  • Patients collateral evidentiary interest in the
    confidential surgical records of other non-party
    patients of surgeon did not overcome the
    non-party patients privacy rights and were not
    relevant to patients medical malpractice claim.

54
55
Error In Judgment Rule
55
56
PRINGLE V. RAPAPORT980 A.2D 159 (PA. SUPER.
2009)JUDGE DONOHUE
  • Parents brought medical malpractice claim against
    physician when their infant son sustained tears
    to multiple nerves in his neck, causing paralysis
    in his right arm.
  • During delivery, the infant experienced shoulder
    dystocia.
  • The doctor attempted to remedy the shoulder
    dystocia using the McRoberts maneuver.
  • Nonetheless the infant was born with his right
    arm limp.

56
57
PRINGLE V. RAPAPORT980 A.2D 159 (PA. SUPER.
2009)JUDGE DONOHUE
  • Trial court committed reversible error when it
    provided an error of judgment jury instruction,
    which provided generally that physicians were not
    responsible for mere errors in judgment unless
    the resulting error constituted, or was the
    result of, negligence.
  • The issue is whether error in judgment
    instruction can be submitted to the jury along
    with a res ipsa loquiter instruction.
  • Error in judgment instruction should not be
    given in medical malpractice claims at all
    because it confuses the jury.
  • Res ipsa instructs the jury that it can infer
    negligence based upon evidence.
  • But, Error in judgment contradicts this by
    instructing the jury that it may not infer such
    negligence.

57
58
PASSARELLO V. GRUMBINE29A.3D 1158 (PA. SUPER.
2011)JUDGE BENDER
  • Parents of two-month-old child who died as result
    of undiagnosed and untreated diffuse acute viral
    myocarditis, a viral infection of the heart
    muscle, brought medical malpractice action
    against child's treating physician.
  • Trial court entered judgment in favor of
    physician. After their motion for post-trial
    relief was denied, parents appealed.
  • Court held that the rule of Pringle v. Rappaport,
    980 A.2d 159 (Pa. Super. 2009), abrogating error
    in judgment rule applied to this case
    retroactively, where defense counsel argued that
    the subjective behavior of defendant physician
    was to do good, not harm.

58
59
PASSARELLO V. GRUMBINEPA SUPREME COURT NOS.
15-16 WAP 2012ARGUMENT NOVEMBER 28, 2012
  • Defense counsel used the error in judgment rule
    not as measure of whether the doctor deviated
    from the standard of care in any specific act or
    omission, but as a measure of the doctors
    character as a professional.
  • Defense counsel argued that regardless of the
    objective standard of care the doctor in an
    exercise of continued self-sacrifice, acted with
    the best intentions and made judgments for which
    she could not be faulted, in part because they
    were judgments and a physician cannot warrant
    care.

59
60
PASSARELLO V. GRUMBINEPA SUPREME COURT NOS.
15-16 WAP 2012ARGUMENT NOVEMBER 28, 2012
  • Retroactive application is warranted
  • need for clarity (for litigants and jurors)
  • importance of preventing introduction of
    erroneous legal concepts
  • lack of genuine reliance on the prior rule due to
    inconsistent and confusing application in the
    courts
  • outweighs the relatively minimal impacts on the
    administration of justice.

60
61
BUCKMAN V. VERAZIN54 A.3D 956 (PA. SUPER
2012)JUDGE BENDER
  • Patient brought medical malpractice action
    against surgeon, health system, and hospital,
    alleging medical negligence as a result of the
    care patient received after surgeon performed a
    sigmoid colectomy and colostomy on patient.
  • The Superior Court followed Passarello v.
    Grumbine and Pringle v. Rapaport in finding that
    using an error of judgment charge in jury
    instructions in a medical malpractice case
    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 opinion explains that this is simply
    untrue, since in all medical malpractice actions
    the proper focus is whether the physician's
    conduct (be it an action, a judgment, or a
    decision) was within the standard of care.

61
62
BUCKMAN V. VERAZIN54 A.3D 956 (PA. SUPER
2012)JUDGE BENDER
  • An error of judgment charge wrongly injects a
    subjective element into the jury's deliberations.
  • The standard of care for physicians in
    Pennsylvania is objective in nature, as it
    centers on the knowledge, skill, and care
    normally possessed and exercised in the medical
    profession. The error of judgment charge
    improperly refocuses the jury's attention on the
    physician's state of mind at the time of
    treatment, even though the physician's mental
    state is irrelevant in determining whether he or
    she deviated from the standard of care.

62
63
Pharmaceutical
63
64
LANCE V. WYETH4 A.3D (PA. SUPER. 2010)JUDGE
ALLEN
  • Plaintiff alleged that Wyeth was negligent in
    placing an unreasonably dangerous prescription
    drug on the market and failed to withdraw it upon
    discovering that it was unsuitable for public
    consumption.
  • Under products liability law, comment k of the
    Restatement (Second) of Torts, 402A applies.
    Only two possible strict liability claims
  • Manufacturing defect claim, or
  • Failure to warn claim
  • A design defect claim for strict liability is not
    permitted under Pennsylvania when it is asserted
    against a manufacturer of a prescription drug.
  • A drug cannot be unreasonably dangerous, even if
    it is defectively designed, so long as the drug
    is manufactured properly and contains adequate
    warnings.

64
65
LANCE V. WYETH4 A.3D (PA. SUPER. 2010)JUDGE
ALLEN
  • Negligent design claim is not foreclosed. The
    Restatement (Second) of Torts, 395 addresses
    manufacturers negligent design of products.
    Unlike 402A, this provision contains no exemption
    for prescription drugs.
  • Comment k is confined to strict liability and has
    no application to negligence cases.
  • Negligent design claim is not precluded by
    comment k and a valid cause of action exists.

65
66
LANCE V. WYETH4 A.3D (PA. SUPER. 2010) JUDGE
ALLEN
  • No duty to recall since that is up to the FDA.
  • Drug manufacturers post-sale duty to warn of
    dangerous propensities provides consumers with a
    remedy and sufficient protection.
  • No post-sale duty to warn about technological
    advances when a defect did not exist in the
    product at the time of the sale.
  • No independent tort for negligent failure to
    test.
  • No claim under Restatement (Third) of Torts
    Products Liability 6(c).

66
67
COLEMAN V. WYETH PHARMACEUTICALS, INC.6 A.3D 502
(PA. SUPER. 2010)JUDGE BOWES
  • Summary judgment granted in favor of Wyeth
    Pharmaceuticals and other parties. The summary
    judgments are reversed.
  • At issue, was hormone replacement therapy
    comprising estrogen and progestin in combination
    to relieve symptoms associated with menopause
    which caused endometrial cancer.
  • All filed within who years of the publication of
    Womens Health Initiative study linking the use
    of the drug to the endometrial cancer.
  • Decision should be by finder of fact, which in
    this case was the jury, with respect to
    reasonable diligence.

67
68
DANIEL V. WYETH PHARMACEUTICALS, INC.15 A.3D 220
(PA. SUPER. 2011)JUDGE DONOHOE
  • Case involves use of Prempro, which is estrogen
    and progestin.
  • We reverse trial courts order granting Wyeths
    post-trial motion for a new trial and reinstate
    the jurys verdict on compensatory damages. We
    also reverse trial courts grant of JNOV on
    punitive damages and reinstate the jurys verdict
    awarding punitive damages.

68
69
MUTUAL PHARMACEUTICALS, INC. V. BARTLETT133
S.CT. 2466 (2013) JUSTICE ALITO
  • Plaintiff sustained significant injuries as a
    result of taking an inflammatory pain reliever
    medication manufactured by Defendant, generic
    pharmaceutical company.
  • Plaintiff brought state court action against
    generic defendant to recover for her injuries.
    The action was removed to federal court. 
  • The Federal Food Drug Cosmetic Act (FDCA)
    requires manufacturers to gain FDA approval
    before marketing any brand or generic drug. Once
    a drug is approved, FDA regulations prevent a
    manufacturer from making any major changes to the
    qualitative or quantitative formulation of the
    drug, including active ingredients or in the
    specifications provided in the approved
    application. 21 CFR Section 314.70(b)(2)(i).
  • New Hampshire state statute imposes on
    manufacturers duty to design their products
    reasonably safely for uses which they can
    foresee. Plaintiff sued asserting this statute.

69
70
MUTUAL PHARMACEUTICALS, INC. V. BARTLETT133
S.CT. 2466 (2013) JUSTICE ALITO
  • New Hampshires design defect statute imposes
    affirmative duties on manufacturers, including a
    duty to design their products reasonably
    safely for uses which they can foresee.
  • Redesign of the drug was not possible for two
    reasons.
  • The Food Drug Cosmetics Act (FDCA) requires a
    generic drug to have the same active ingredients,
    route of administration, dosage form, strength
    and labeling as its branded-equivalent.
  • Because of the drug at issue, sulindacs simple
    composition, the drug is chemically incapable of
    being redesigned.
  • Since redesign is impossible under the federal
    statute, which governs generic drugs, this comes
    into conflict with the state statute, and thus
    imposes a conflict between state and federal law
    which the Supreme Court resolved by holding that
    the federal generic drug law pre-empts the state
    law defective design claim under the New
    Hampshire Statute.

70
71
HASSETT V. DAFOE74 A.3D 202 (PA. SUPER. 2013)
JUDGE BOWES
  • Consumer who was allegedly injured after taking
    the generic drug metoclopramide filed a suit
    seeking damages for personal injury against
    generic manufacturers.
  • Consumers negligence, strict liability,
    warranty, fraud and profit disgorgement claims
    were not federally preempted.
  • Consumers failure to warn claims, based on
    manufacturers failure to strengthen warnings in
    conformity with that of the reference listed drug
    (RLD), were preempted.

71
72
HASSETT V. DAFOE74 A.3D 202 (PA. SUPER.
2013)JUDGE BOWES
  • Whether all claims asserted by Mr. Hassett and
    the other plaintiffs against generic drug
    manufacturers are failure to warn claims
    pre-empted by the Supreme Court case Mensing v.
    Pliva.
  • In Mensing, the Court reasoned that since a
    generic manufacturer is responsible under federal
    law for ensuring that its warning label is the
    same as the brand name's label, and it cannot
    unilaterally change its label to attach a
    stronger label as required by state law, it was
    impossible for generic drug manufacturers to
    comply with both federal and state law.
  • Court found that generic Defendants gloss over
    critical distinctions between strict liability
    and negligence for defective products, breach of
    warranty, misrepresentation and fraud theories of
    liability, without examining the state-law duty
    allegedly violated.

72
73
HASSETT V. DAFOE74 A.3D 202 (PA. SUPER.
2013)JUDGE BOWES
  • Allegations suggest that the drug, even when used
    as recommended and with appropriate warnings, was
    defective and unreasonably dangerous. Such
    averments do not necessarily implicate labeling,
    but assert absolute liability based on the sale
    of a defective or unreasonably dangerous product.
  • Generic Defendants can comply with federal law,
    which does not permit them to unilaterally alter
    a drug's design, and state law, which extends
    liability to a manufacturer of a defectively
    designed drug without regard to whether it may
    redesign its drug.
  • The court in Bartlett expressly left open the
    issue of whether 402A strict products liability
    design defect claims would be pre-empted. It did
    not address, or reject, the argument Mr. Hassett
    asserts herein that under 402A strict products
    liability, it is unnecessary for a plaintiff to
    demonstrate that a defendant should or could have
    altered the design or the warnings.

73
74
HASSETT V. DAFOE74 A.3D 202 (PA. SUPER.
2013)JUDGE BOWES
  • Federal labeling regulations pre-empt state law
    labeling and packaging requirements only to the
    extent that they are different from or in
    addition to those mandated by the federal
    statute.
  • A proper pre-emption analysis is dependent upon a
    comparison of the federal statute or regulation
    and the particular state law applicable.
  • While federal labeling statutes may pre-empt
    state failure to warn claims, they do not
    pre-empt claims based upon the marketing of
    defective products, a lack of due care in
    testing, or a product's failure to conform to
    express and implied warranties, all of which are
    alleged herein.
  • The claims asserted herein implicate warranties
    arising from advertising and promotional
    materials that arguably do not fall within the
    definition of labeling under the Act.

74
75
HASSETT V. DAFOE74 A.3D 202 (PA. SUPER.
2013)JUDGE BOWES
  • Allegations of false advertising and promotion
    are not failure to warn claims based on the label
    pre-empted by Mensing.
  • Complaint seeking disgorgement of profits from
    generic drug manufacturers stemming from
    deceptive practices, such as concealing the risks
    associated with the drug and misrepresenting its
    safety, and asserting claims of civil conspiracy
    based upon the concealment and withholding of
    information, was not preempted, under
    impossibility preemption, by federal law as a
    failure-to-warn claim.
  • Only pre-Act failure-to-warn claims based solely
    on a label that was in conformity with the RLD
    label are pre-empted under Mensing and such
    failure to warn claims are preempted here.

75
76
IN RE REGLAN / METOCLOPRAMIDE LITIGATION74 A.3D
221 (PA. SUPER. 2013)JUDGE BOWES
  • Consumers who were allegedly injured after
    ingesting the generic drug metoclopramide, sued
    seeking damages for personal injury based on
    failure of drug manufacturer, designated as
    successor reference listed drug (RLD) holder, to
    warn of drug's dangers.
  • Manufacturer failed to establish federal
    impossibility pre-emption as to consumer's
    failure-to-warn claim.
  • Former generic drug manufacturer of
    metoclopramide failed to meet its burden of proof
    to establish impossibility pre-emption as to
    consumer's failure-to-warn tort claim by
    demonstrating that it was impossible to modify
    its label, under federal laws, and that it lacked
    ability to use changes being effected (CBE)
    process to modify its warnings label.
  • This was true even though generic manufacturer
    had been designated by Federal Drug
    Administration (FDA) as successor reference
    listed drug (RLD) holder for the drug after
    original RLD holder withdrew the drug.

76
77
IN RE REGLAN / METOCLOPRAMIDE LITIGATION74 A.3D
221 (PA. SUPER. 2013)JUDGE BOWES
  • Supreme Court decision in Mensing does not confer
    upon generic drug manufacturers blanket
    pre-emption of all state-law tort claims.
  • Generic manufacturer maintains that despite its
    status as the RLD holder for liquid syrup
    metoclopramide, it remained a generic
    manufacturer of an ANDA-approved product, and
    that it had no ability to use the Changes Being
    Effected (CBE) process to modify its warnings
    label.
  • Supreme Court excluded RLDs from its definition
    of generic drugs and used the designation
    name-brand and listed interchangeably.
  • A generic manufacturer's inability to
    unilaterally change the warning label on its
    generic drug is the foundation for the Mensing
    holding.

77
78
IN RE REGLAN / METOCLOPRAMIDE LITIGATION74 A.3D
221 (PA. SUPER. 2013)JUDGE BOWES
  • Resolution of the issue of whether impossibility
    pre-emption applies to Morton Grove hinges on
    whether that entity, as the RLD holder, had the
    ability under federal law to change or update its
    label.
  • The burden of proving the basis for the
    pre-emption defense rests with Morton Grove, and
    it has not established with the requisite
    certainty that it was impossible to modify its
    label.

78
79
Vaccines
79
80
WRIGHT V. AVENTIS PASTEUR, INC.14 A.3D 850 (PA.
SUPER. 2011)JUDGE MUNDY
  • Minor received vaccine containing preservative
    Thimerosal, a Hepatitis-B vaccine manufactured by
    Merck. The claim was that the preservative
    exposure caused neurological damage.
  • Minor plaintiffs claim was not covered under any
    of the bases listed on the Vaccine Table whereby
    compensation is provided by the National
    Childhood Vaccine Injury Act of 1986.
  • Either defective warnings or defective
    manufacturing may serve as a basis for alleging
    that certain vaccinesside effects were
    avoidable.

80
81
WRIGHT V. AVENTIS PASTEUR, INC.14 A.3D 850 (PA.
SUPER. 2011)JUDGE MUNDY
  • Congress intended the courts to conduct
    case-by-case inquiries as to the nature of
    vaccines side effects.
  • 300aa-22(b)(1) does not serve as an outright bar
    to any design defect claim. Rather, the statute
    requires courts to conduct a case-by-case inquiry
    in order to determine whether a particular
    vaccine's side effects were unavoidable.
    Therefore the trial court erred in granting
    summary judgment to the vaccine defendants.

81
82
BRUESEWITZ V. WYETH131 S.CT. 1068 (2011)JUSTICE
SCALIA
  • Preemption enacted in the National Childhood
    Vaccine Injury Act of 1986 bars state-law
    design-defect claims against vaccine
    manufacturers.

82
83
Mcare Coverage
83
84
KRAPF V. ST. LUKES HOSPITAL4 A.3D 642 (PA.
SUPER. 2010) GANTMAN, SHOGAN AND MUNDY, JJ.
  • Estates of five patients brought wrongful death
    and survival actions against hospital after nurse
    formerly employed at hospital confessed to having
    killed those patients.
  • Duty to inform patient or their family of really
    bad things that go on in hospitals, such as
    murdering nurse.
  • Genuine issue of material fact existed as to the
    applicability of the fraudulent concealment
    doctrine, precluding summary judgment for
    hospital on limitations grounds

84
85
POLYCLINIC MEDICAL CENTER V. MEDICAL CARE
AVAILABILITY13 A.3D 561 (PA. CMWLTH. 2011)JUDGE
PELLIGRINI
  • A patient in a psychiatric unit was assaulted by
    another patient using a wheel chair.
  • No Mcare coverage available where patient injured
    at the hands of another patient. Claim was of
    improper supervision of patients, but the court
    said that this did not constitute patient care.

85
86
YUSSEN, M.D. V. MEDICAL CARE AVAILABILITY46 A.3D
685 (PA. 2012)JUSTICE SAYLOR
  • A doctor sought coverage under 715(a) of the
    Medical Care Availability and the Reduction of
    Error (MCARE Fund), 40 P.S. 1303.715(a).
  • MCARE Fund covers medical malpractice claims made
    more than four years after the claim was made but
    within the statute of limitations.
  • The MCARE fund denied coverage, asserting that
    the claim was made on the date the writ was
    filed, which was less than four years from the
    date of the alleged malpractice. The
    Commonwealth Court, exercising original
    jurisdiction, agreed.
  • Pennsylvania Supreme Court reversed.

86
87
YUSSEN, M.D. V. MEDICAL CARE AVAILABILITY46 A.3D
685 (PA. 2012)JUSTICE SAYLOR
  • Claim and made -as used in the statute - are
    ambiguous their meaning in an insurance setting
    contemplates notice and reporting.
  • Purpose of the MCARE fund statute is to create
    greater certainty in calculating reserves.
  • Requiring some notice to the insured is more
    consistent with the purpose of the statute.

87
88
TRANSFER OF MCARE FUNDS TO COMMONWEALTHS GENERAL
FUND
88
89
THE HOSPITAL HEALTH SYSTEM ASSOCIATION OF
PENNSYLVANIA V. THE COMMONWEALTH OF
PENNSYLVANIA2013 WL 5379488 (PA. SEPT. 26,
2013) 
  • Supreme Court of PA held that plaintiffs had a
    vested due process interest in having existing
    monies in MCARE Fund used for MCARE purposes of
    satisfying judgments against health care
    providers.
  • Court further held that it was a question of fact
    as to whether the transferred monies represented
    a surplus in the MCARE Fund and precluded summary
    relief on due process and tax uniformity claims.

89
90
THE PENNSYLVANIA MEDICAL SOCIETY V. THE
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH
OF PENNSYLVANIA39 A.3D 267 (PA. 2012)
  • PA Supreme Court held that abatement law gave the
    Secretary of the Budget the discretion, but not
    the obligation, to transfer monies into the MCARE
    Fund in an amount up to the total amount of
    abatements granted.
  •  
  • Court further held that health care providers and
    associations representing them had no vested
    right in health funds held in Health Care
    Provider Retention Account.

90
91
TRANSFER OF MCARE FUNDS TO COMMONWEALTHS GENERAL
FUND
   
  • Health care providers and their associations had
    standing to challenge the Commonwealths transfer
    of 100 million dollars from the MCARE fund to the
    General Fund of the Commonwealth. Hospital
    Healthsystem Assn of Pa v. Com., 997 A.2d 392
    (Pa. Cmwlth. 2010) see also Medical Soc. V.
    Dept. of Public Welfare, 994 A.2d 33 (Pa.Cmwlth.
    2010).
  • Providers had vested rights that could not be
    terminated through legislation. Id at 398.
  • Judge Pellegrini dissents because the abatements
    have been paid, that the doctors received
    everything promised, and that the 800 million
    dollar transfer from the General Fund to the
    MCARE fund constitutes a windfall to the doctors.
    Medical Soc. V. Dept. of Public Welfare, 994
    A.2d at 46.

91
92
MCARE ACT - 509
92
93
SAYLER V. SKUTCHES40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
  • Medical Malpractice claim brought against
    gynecologist for allegedly failing to diagnose
    breast cancer.
  • Jury awarded a verdict for plaintiff in the gross
    amount of 3,973,000 on January 18, 2008. The
    molded verdict was for 2,582,450, reduced by
    plaintiffs 35 contributory negligence.
  • The potential award for future damages was
    521,235 but since the plaintiff died, the actual
    award accrued for medical at the time of death
    was 165,750.
  • The jury awarded 170,000 per year in future
    medical expenses payable over five years, for a
    total of 850,000 after reduction for the 35
    comparative negligence the award for future
    medical expenses over the five year period it is
    110,500 yearly, or 27,625 quarterly.
  • Plaintiff accrued medical expenses, totaling
    165,750, when Plaintiff died prior to the
    expiration of the five-year period awarded by the
    jury.

93
94
SAYLER V. SKUTCHES40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
  • The appeal process was long, as Defendants
    appealed all the way to the U.S. Supreme Court.
  • Plaintiff had no access to the jury award for
    future medical expenses during appeal which
    would have amounted to 165,750 at the time of
    death and went without medical treatment to
    slow her breast cancer.
  • Plaintiff died on May 23, 2009.
  • After a denial of writ for certiorari by U.S.
    Supreme Court, plaintiff (executrix of estate)
    filed an amended petition for entry of judgment
    on November 23, 2010.

94
95
SAYLER V. SKUTCHES40 A.3D 135 (PA.SUPER. 2012)
JUDGE PLATT, LAZARUS, OTT
  • The issue was whether the MCARE Act provision -
    stating that future damages are paid as periodic
    payment after the proportionate share of counsel
    fees and costs based upon the present value of
    t
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