Anatomy of a Lawsuit

JOINTLY SPONSORED BY THE MONTGOMERY COUNTY MEDICAL SOCIETY, THE MEDICAL-LEGAL COMMITTEE OF THE MONTGOMERY COUNTY BAR ASSOCIATION, AND ABINGTON MEMORIAL HOSPITAL

______________________________________

LEGAL EVALUATION OF A MEDICAL PROFESSIONAL LIABILITY CASE

By: Robert T. Szostak, Esquire

I. PHYSICIAN MALPRACTICE BASED ON NEGLIGENCE

Medical professional liability cases derive from ordinary rules of negligence law. Pennsylvania Courts have defined medical malpractice "as the 'unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of medical services.'" ^[1] To establish a medical malpractice case under Pennsylvania law, the patient, or his or her family, must prove the following four elements: (1) that there was a duty owed by the physician to the patient; (2) that the duty was breached by the physician; (3) that the breach of duty was a factual cause of harm suffered by the patient; and (4) that the damages suffered by the patient were a direct result of the harm.^[2] A patient, or his or her family, must also present expert testimony to a reasonable degree of medical certainty that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was a factual cause of harm suffered.^[3] Medical professional negligence thus consists of a negligent, careless or unskilled performance by a physician of the duties imposed on him or her by the professional relationship with the patient, and/or when a physician shows a lack of proper care and skill in the performance of a professional act.

When explaining the standard of care to a jury in a medical malpractice case, the court may give the following standard instruction:

A physician must have the same knowledge and skill and use the same care normally used in the medical profession. A physician whose conduct falls below this standard of care is negligent.

A physician who professes to be a specialist in a particular field of medicine must have the same knowledge and skill and use the same care as others in that same medical specialty. A specialist whose conduct does not meet this professional standard of care is negligent.

Under this standard of care, a physician must also keep informed of the contemporary developments in the medical profession or his or her specialty and must use current skills and knowledge. In other words, a physician must have up-to-date medical skills and knowledge, and if he or she fails to keep current or fails to use current knowledge in the medical treatment of the patient, the physician is negligent.^[4]

In short, the patient must prove either that the physician did not possess and employ the required skill and knowledge, or that he or she did not exercise the care and judgment of a reasonable person in like circumstances. Once the patient has produced sufficient evidence on the issue, the question of the proper standard of care is for the jury to determine.^[5]

Proof of causation in a medical malpractice case requires expert opinion evidence, except where the causal connection between the physician's negligence and the patient's injuries is a matter of everyday experience and knowledge. In many medical malpractice cases, the negligence of the physician can be attributed to a failure to diagnose or cure a pre-existing condition for which a physician is not responsible, as it existed when he or she first saw the patient. The patient must demonstrate that the physician's malpractice was a factual cause in aggravating the condition to prevail. Once a patient demonstrates that the physician's acts or omissions increased the risk of harm to the patient, the jury then determines the question of whether the increased risk was a factual cause in bringing about the resultant harm.^[6] In the typical medical professional negligence case, the patient alleges that the physician's act or omission directly resulted in harm; however, in the increased risk of harm case, the theory is that the physician's act or omission failed to protect against harm from another source.^[7] Thus, the causal connection between the injury suffered and the physician's alleged failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the physician's negligent conduct.^[8]

II. PHYSICIAN MALPRACTICE BASED ON THE THEORY OF LACK OF INFORMED CONSENT

Informed consent has been part of the medical professional liability landscape for almost 40 years.^[9] The consent of a patient is necessary for a surgical operation by the physician, and an operation without the patient's consent constitutes technical battery. A patient's consent must be informed. To make an informed decision, the physician must explain the risks that a reasonably prudent patient would need to know and the alternative choices. A patient must be given a description of the proposed medical procedure or treatment and be informed of the risks of the procedure or treatment. Again, the patient must also be informed of the viable alternatives that a reasonable person would consider important to know in order to make an informed decision about whether or not to undergo the procedure, treatment or operation. The patient is not required to prove that he or she would have made a different choice had the information been disclosed; rather, the patient must only prove that the information not given to him or her would have been a "substantial factor in his or her decision to consent to the procedure or treatment."^[10]

The doctrine of informed consent is codified under Pennsylvania law as follows:

1. Duty of Physicians. - Except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient's authorized representative prior to conducting the following procedures:
   1. Performing surgery, including the related administration of anesthesia.
   2. Administering radiation or chemotherapy.
   3. Administering a blood transfusion.
   4. Inserting a surgical device or appliance.
   5. Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner.
2. Description of procedure. - Consent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.
3. Expert testimony. - Expert testimony is required to determine whether the procedure constituted the type of procedure set forth in subsection (a) and to identify the risks of that procedure, the alternatives to that procedure and the risks of these alternatives.
4. Liability. -
   1. A physician is liable for failure to obtain the informed consent only if the patient proves that receiving such information would have been a substantial factor in the patient's decision whether to undergo a procedure set forth in subsection (a).
   2. A physician may be held liable for failure to seek a patient's informed consent if the physician knowingly misrepresents to the patient his or her professional credentials, training or experience.^[11]

Pennsylvania jurisprudence holds that in the absence of an emergency or a situation where a patient is physically or mentally unable to consent about his or her condition, applicable medical treatment performed without the consent of the patient is considered a battery. Thus, consent of the patient is a prerequisite to surgical treatment (as well as the aforementioned procedures) by a physician. While doctors are not required, under the doctrine of informed consent, to disclose all known information, they are required to advise the patient of those material facts, risks, complications, and alternatives to surgery that a reasonable person in the patient's situation would consider significant in deciding whether to have the operation.^[12] The goal of the informed consent doctrine is to provide the patient with material information necessary to determine whether to proceed with the given procedure or to remain in their present condition.^[13]

A physician is not liable for the failure to obtain informed consent, unless the patient proves that receiving the required information would have been a substantial factor in the patient's decision on whether to undergo a procedure. A patient cannot recover damages if the risk was revealed. In order to prove a case grounded upon the failure to receive informed consent, there must be expert testimony to establish a causal connection between the lack of informed consent and the suffering of an injury, the risk of which was undisclosed or which would not have occurred had the patient opted for one of the undisclosed methods of treatment.^[14]

Pennsylvania law forbids a claim of corporate negligence against a hospital if founded upon a theory that the hospital failed to ensured the patient's informed consent.^[15]

III. DIRECT HOSPITAL LIABILITY: THE DOCTRINE OF CORPORATE NEGLIGENCE

The doctrine of corporate negligence became part of Pennsylvania law when the Pennsylvania Supreme Court held in Thompson v. Nason Hospital, 491 A.2d 703 (Pa. 1991):

Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital. This theory of liability creates a non-delegable duty which the hospital owes directly to the patient. Therefore, an insured party does not have to rely on and establish the negligence of a third party.

The Supreme Court expressly recognized that a hospital may be found independently negligent, if it violated one or more of the following duties:

1. Duty to use reasonable care in the maintenance of safe and adequate facilities and equipment;
2. Duty to select and retain only competent physicians;
3. Duty to oversee all persons who practice medicine within its walls as to patient care; and,
4. Duty to formulate, adopt and enforce adequate rules and policies to ensure care for patients. Id.

In order to present a legally sufficient case of corporate negligence, a patient must prove all of the following elements:

1. The hospital acted in deviation from the standard of care;
2. The hospital had actual or constructive notice of the defects or procedures which created the harm; and,
3. The hospital's conduct was a substantial factor in bringing about the harm.¹⁶

To establish hospital corporate negligence, the patient must show more than an act of negligence by an individual for whom the hospital is responsible - the patient must show that the hospital itself breached a duty below the standard.¹⁷ This requires evidence that the hospital knew or should have known about the breach of a duty that is harming its patients. Thus, a reasonable hospital standard of care is applied when formulating liability based on corporate negligence - i.e., a hospital's corporate negligence is measured against what a reasonable hospital under similar circumstances would have done. Significantly, the doctrine of corporate negligence embraces "systemic negligence," not strict liability. Corporate liability is predicated on the negligent acts of the institution - i.e., a cause of action for corporate negligence arises from the policies, actions or inaction of the institution itself rather than specific acts of individual hospital agents.¹⁸ Accordingly, a hospital, as a corporate entity, cannot be found directly liable for individual acts of negligence of its physicians and staff. Expert testimony is required to demonstrate that the corporate entity deviated from the standard of care and that such deviation was a factual cause in bringing about the harm.¹⁹ The doctrine of corporate negligence applies to both hospitals and HMOs²⁰ as well as nursing homes.²¹

IV. INDIRECT HOSPITAL LIABILITY BASED ON OSTENSIBLE AGENCY

A hospital may also be held vicariously liable for the acts of its physicians and staff based on ostensible agency principles.²² Pennsylvania statutory law regulates ostensible agency, and provides:

1. Vicarious liability. - A hospital may be held vicariously liable for the acts of another health care provider through principles of ostensible agency only if the evidence shows that:
   1. 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; or
   2. the care in question was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents.
2. Staff privileges. - Evidence that a physician holds staff privileges at a hospital shall be insufficient to establish vicarious liability through principles of ostensible agency unless the claimant meets the requirements of subsection (a)(1) or (2).²³

Thus, under current law, a patient must prove either (1) 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, or (2) that the care in question was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents. A mere showing that the physician maintained staff privileges at the hospital is not sufficient to establish secondary liability of a hospital.²⁴

V. PENNSYLVANIA PROFESSIONAL LIABILITY REFORMS

Introduction

As the new century turned, the number of private insurance carriers writing medical malpractice business in Pennsylvania was down from 17 carriers to 2 carriers as compared to the early 1990s. The third most prevalent cause of death in the Commonwealth could be traced to medical malpractice. The problem was not unidimensional, but involved an interconnection of systems of technologies, structure, climate, leadership and culture. Premiums charged did not track losses paid, yet approximately 5 percent of doctors were responsible for 54 percent of the medical malpractice in the state, without evidence of discipline to remove irresponsible or incompetent practitioners. Healthcare providers were not being experience-rated by their carriers in a climate of tort reform when frequency of claims was the big problem. All the while, there had been a price war in the 1990s where the carriers reaped the benefit of the investment market. When the market tumbled, resulting in cost of claims exceeding what the carriers could make in the investment market, "frivolous lawsuits" and "trial lawyers" became the political and expedient excuse. Having nothing to do with the tort system, doctors could not raise their fees, as they were held captive by the few carriers writing managed-care private insurance in Pennsylvania. Overwhelmingly, the Medicare/Medicaid reimbursement system was and remains woefully inadequate. To address the medical liability insurance crisis, Pennsylvania responded with a measured comprehensive reform strategy that over the course of the past decade has dramatically reduced the frequency of medical malpractice claims by over 50 percent.

The downward trend of a sustained decline in the number of medical malpractice actions filed can be traced directly to the following reform measures:

1. MCARE Act (Act 13, 40 P.S. §1303.101, et seq.)

   On March 20, 2002, the Medicare Care Availability and Reduction of Error (MCARE) Act was signed into law. Also referred to as Act 13, this Statute is designed to implement comprehensive medical malpractice reform. Its intent is to balance the objectives of assuring health services through a network of highly trained physicians in all specialties against patient safety with prompt determination and fair compensation for every person who sustains injury or death as a result of medical negligence by a health care provider. Act 13 also introduced insurance reform through the planned elimination of the Medical Catastrophe Loss Fund (the CAT Fund), now known as the MCARE Fund. A study of Act 13 reveals that it governs all areas applicable to any medical professional liability case, including:

   • Patient Safety
   • Informed Consent
   • Punitive Damages
   • Affidavit of Non-Involvement
   • Advanced Payments
   • Collateral Sources
   • Payment of Damages
   • Reduction to Present Value
   • Preservation and Accuracy of Medical Records
   • Expert Qualifications
   • Statute of Repose
   • Remittitur
   • Ostensible Agency
   • Medical Professional Liability Insurance
   • MCARE Fund
   • Reporting to State Board of Medicine or State Board of Osteopathic Medicine
   • Notice of a Complaint in a Professional Liability Action Filed Against the Physician or Disability Action Taken Against the Physician
   • Confidentiality of Records of Licensure Boards
   1. Patient Safety Authority

      A summary of the MCARE Act is attached as Appendix A. The new med-mal law requires every ambulatory surgical facility and hospital to have a Patient Safety Authority with an internal patient safety plan consisting of (1) a patient safety officer; and (2) a patient safety committee which investigates and reports all serious events or incidents and makes recommendations to eliminate future serious events or incidents. The Patient Safety Authority oversees a 24/7 process for health care workers to report serious events and incidents within 24 hours of discovery of any such event or incident. Additionally, the medical facility must give written notification to the patient or his/her designee of the serious event.²⁵ All documentation of the Patient Safety Authority is considered confidential and not discoverable in any civil or administrative proceeding.²⁶

   2. Informed Consent

      Act 13 now regulates informed consent. It requires expert testimony to determine whether informed consent applies to the operative procedure, its risks, and alternatives as well as

      risks from alternatives. A patient must prove that receiving such information would have been a substantial factor in the patient's decision whether to have the procedure.²⁷

   3. Punitive Damages

      On the concern of punitive damages, under Act 13, they cannot exceed 200 percent of any compensatory award and they must be apportioned 75/25 between patient and the MCARE Fund. A showing of gross negligence is insufficient to support an award of punitive damages. Significantly, punitive damages cannot be awarded against a health care provider who is only vicariously liable for the actions of its agents that caused the injury, unless it can be shown, by a preponderance of the evidence, that the party knew of and allowed such conduct by its agent as resulted in the award of punitive damages.²⁸

   4. Collateral Sources and Payment of Damages

      Subject to exceptions, if a patient receives - before trial - a private or public benefit/gratuity that compensates him or her for past medical expenses or past lost earnings incurred before trial, a patient cannot recover these past expenses. When determining how damages are paid, a jury must render separate findings in a lump sum, excluding collateral sources for past medical expenses and past loss of earning as follows:

      1. Past Medical and Other Related Expenses
      2. Past Loss of Earnings
      3. Past Non-Economic Damages
      4. Future Medical and Other Related Expenses
      5. Future Loss of Earning Capacity
      6. Future Non-Economic Damages²⁹.
   5. Damages for Future Medical Expenses and Lost Earning Capacity

      Future damages for medical and other related expenses must be paid periodically. Such expenses can vary from year to year during the life expectancy of the patient to account for the special needs presented. Adjustments can be made for inflation and medical improvements. Payments stop on the death of the plaintiff/claimant. Significantly, future loss of earning capacity must now be reduced to present value.³⁰

   6. Preservation and Accuracy of Medical Records

      Preservation of records is also regulated by Act 13. Henceforth, alternations of a patient's chart are deemed unprofessional, sanctionable conduct except:

      1. When erroneously entered;
      2. Where necessary to clarify entries previously made; and
      3. To add information previously unavailable at the time of original creation.³¹
   7. Expert Qualifications and Testimony

      Act 13 introduced stringent standards on expert qualifications. In order to testify in a medical professional liability action against a physician, Section 512 of the MCARE Act requires that an expert (i) "possess sufficient education, training, knowledge and experience to provide credible, competent testimony"; and (ii) fulfill the qualifications required by the Act.³² Any expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of injury, must also satisfy the following qualifications:

      1. Possess an unrestricted physician's license to practice medicine in any state or the District of Columbia;
      2. Be engaged in or retired within the previous five (5) years from active clinical practice or teaching.

      A court may waive these requirements on any matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.

      Any expert testifying as to a physician's standard of care must also meet the following qualifications:

      1. Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care;
      2. Practice in the same subspecialty as the defendant-physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue (with certain exceptions); and
      3. In the event the defendant-physician is certified by an approved Board, be Board-certified by the same or similar approved Board.

      A court may also waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition, if the court determines that:

      1. The expert is trained in the diagnosis or treatment of the condition, as applicable; and
      2. The defendant-physician provided care for that condition and such care was not within the physician's speciality or competence.

      A court may also waive the same subspecialty and Board Certification requirements for an expert testifying on the standard of care, if the court determines the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement or full-time teaching in:

      1. The applicable subspecialty; or
      2. A related field of medicine within the previous five (5) year time period.

      In addition to Section 512, Pennsylvania case law continues to govern the standard of care and causation issues in a medical negligence case. Trial courts have followed a long-established discretionary standard when determining the admissibility of expert testimony. Under Pennsylvania law, the standard for qualifying a witness as an expert is a liberal one: if the witness possesses knowledge with regard to a subject matter that is beyond the knowledge, information and skill possessed by the ordinary juror, he or she may testify.³³ To qualify as an expert, a witness need not possess all of the knowledge on the subject; rather, the witness need possess more knowledge than is within the ordinary range of training, knowledge, intelligence or experience. The benchmark that trial courts apply when qualifying an expert is "whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation."³⁴ The weight of an expert's testimony is for the trier of fact, the jury, to determine.

   8. Statute of Limitations and Statute of Repose

      Medical malpractice actions must be brought within two (2) years of an alleged medical injury.³⁵ Pennsylvania courts, however, have adopted a "Discovery Rule" for injuries to the person. The Statute of Limitations does not begin to run until the injured party discovers or reasonably should discover that he or she has been injured by another's conduct.³⁶ This Discovery Rule does not apply in wrongful death cases.³⁷ For medical malpractice cases arising on or after March 20, 2002, the Discovery Rule is limited by the Statute of Repose to seven (7) years, running from the date of the alleged medical injury. Again, if a claim is brought under the Pennsylvania Wrongful Death or Survival Statutes, the action must be commenced within two (2) years after death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death. The Statute of Repose does not apply to foreign objects unintentionally left in the body, or to cases involving injuries of minors after seven (7) years from the date of the alleged injury or after the minor attains age twenty (20), whichever is later.³⁸

   9. Insurance

      The insurance provisions of the MCARE Act are designed to shift the total mandatory coverage of $1 million to basic coverage, with the goal of gradually eliminating the MCARE excess and going to full basic coverage as the market will bear. Presently, physicians are required to maintain $500,000/$1.5 million of basic insurance coverage and MCARE limits of $500,000/$1.5 million. Hospitals are required to maintain $500,000/$2.5 million of basic insurance coverage and MCARE limits of $500,000/$1.5 million. The objective is to require physicians to maintain $1 million/$3 million of basic insurance coverage and hospitals to maintain $1 million/$4.5 million of basic insurance coverage, without MCARE limits.³⁹ The MCARE fund can be required to pay delay damages and post-judgment interest in excess of its limits.⁴⁰

2. Frivolous Litigation Rules: Pa. R.C.P. 1023.1-4

   In April 2002, the Pennsylvania Supreme Court adopted Pennsylvania Rule of Civil Procedure 1023.1-4 which requires that medical malpractice claims, defense and contentions have a proper purpose, be non-frivolous, bear evidentiary support and contain only good faith denials. A court may impose sanctions on any attorneys, law firms and parties for violation of the rule after notice and a reasonable opportunity to respond. The rule recognizes that formal or informal discovery may be necessary to gather and confirm the evidentiary support necessary for a claim or defense asserted in good faith. In the absence thereof, the parties advocating such claim or defense do so at their peril.

3. Venue Rules: Pa. R.C.P. 1006⁴¹

   On March 5, 2003, the Pennsylvania Supreme Court amended Pennsylvania Rule of Civil Procedure 1006 as it applies to medical professional liability actions filed on or after January 1, 2002. Briefly put, the Supreme Court adopted a lex loci delicti approach, meaning that a medical malpractice case can only be brought where the injurious conduct is committed. Otherwise stated, in Pennsylvania, "a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose."⁴² If an action is against two or more health care providers including one or more medical professional liability claims, the action must be brought in any county in which the venue may be laid against any health care provider.⁴³ Venue for most cases is thus limited to the location of the alleged negligent care.

4. Certificate of Merit Rules: Pa. R.C.P. 1042.1-9, as amended

   Simultaneously with the promulgation of the new venue rules, the Pennsylvania Supreme Court changed the procedural threshold requirements for initiating medical malpractice actions by adopting the Certificate of Merit ("COM") Rules. Rule 1042.1 requires the filing of a Certificate of Merit in any claim alleging professional negligence against a physician, certified nurse-midwife, podiatrist, chiropractor, dentist, nurse, optometrist, pharmacist, physical therapist, psychologist, hospital, nursing home, birth center, and any officer, employee or agent of any of them acting in the course and scope of their employment, including a corporation, university or other educational institution licensed or approved by the Commonwealth or another state. The COM must be filed by counsel or a party within sixty (60) days of filing the Complaint, warranting to the Court, as follows:

   1. An appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the Complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; or
   2. The claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard; or
   3. Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.⁴⁴

   On December 5, 2005, the COM Rules were amended to clarify that in cases involving multiple claims against the same defendant, when a plaintiff files a complaint against a professional that contains both a claim of direct liability and one of vicarious liability, a separate COM must be filed for each claim, or a single COM must be filed stating that both types of claims are raised. The Supreme Court further amended the COM Rules in February 2005 to clarify that the statement that serves as the basis for a COM does not need to specifically identify each licensed professional who deviated from the required standard of care. Lastly, on June 16, 2008, the Supreme Court amended the COM Rules to provide, in part, for notice before a defendant in a professional liability action can obtain a judgment of non pros or dismissal for a party's failure to timely file a COM.⁴⁵ This amendment mandates thirty (30) days notice before a request for entry of Non Pros may be filed. It also creates a mechanism that tolls the time for filing a COM while the court considers a motion to determine whether a COM is necessary.

   The COM Rules explain that the appropriate licensed professional supplying the written statement in support of the COM is not required to be the same person who actually testifies at trial. However, the appropriate licensed professional who supplies a COM statement must "be an expert with sufficient education, training, knowledge and experience to provide credible, competent testimony or, stated another way, the expert who supplies the statement must have qualifications such that a trial court would find them sufficient to allow the expert to testify at trial." Furthermore, in a medical professional liability action against a physician, the certifying expert should meet the qualifications detailed in Section 512 of the MCARE Act. In short, the party filing a COM bears the burden of using an expert who is qualified, and in the case of medical negligence actions, meets the expert witness requirements of Act 13.⁴⁶

   A plaintiff is prohibited from seeking discovery, without leave of court, until the COM is filed. Nevertheless, a court must allow release of such discovery that would enable an appropriate licensed professional reviewing the potential case to make a determination as to whether a potential defendant deviated from accepted professional standards.⁴⁷

5. Settlement Conference/Mediation Rule: Pa. R.C.P. 1042.21

   Before the exchange of expert reports in a medical professional liability action, a health care provider may file a motion with the court requesting a settlement conference or court-ordered mediation.

6. Expert Report Rules: Pa. R.C.P. 1042.26-38

   These rules apply to jurisdictions in which the court has not established case- management deadlines. A defendant against whom a claim of professional negligence has been made may request a plaintiff to produce expert reports ninety (90) days after the defendant files an original Answer to the Plaintiff's Complaint. Similarly, a plaintiff who has furnished expert reports to a defendant or additional defendant may request them to produce expert reports within sixty to ninety (60-90) days, depending upon the procedure followed. Failure to produce a report required under these rules could result in sanctions for non-compliance, including where appropriate, an Order barring a party from introducing expert testimony. The rules note that a party cannot justify the non-production of an expert report required by the Rules simply by stating that discovery has not been completed or that the party failing to provide the report has not yet identified the experts whom the party intends to call at trial. Where a party acts diligently, however, the party should not be required to produce expert reports, if discovery of significant information has not been completed because of the difficulty obtaining discovery from other parties or third persons, or because of the complexity of the case.

7. Scheduling Order Rules: Pa. R.C.P. 1042.41 and 1042.52

   After one year from the date an Answer is first filed, any party to a medical professional liability action may request the court to issue a scheduling order including schedules for completion of discovery and production of expert reports. These rules do not apply where the court by court order or otherwise has established schedules for completion of discovery and production of expert reports.

8. Jury Note-Taking Rule: Pa. R.C.P. 1023.2

   This Rule permits a trial court, in its discretion, to allow jurors to take notes during the proceedings and to use their notes during deliberations. Jurors are not permitted to take notes when the trial judge is instructing them as to the law that will govern the case. The court must give appropriate cautionary instructions to the jury, including: (1) jurors are not required to take notes and those who take notes are not required to take extensive notes; (2) note-taking should not divert jurors from paying full attention to the evidence and evaluating witness credibility; (3) notes are merely memory aids and not evidence for the official record; (4) jurors who take few or no notes should not permit their independent recollection of the evidence to be influenced by the fact that other jurors have taken notes; (5) notes are confidential and will not be reviewed by the court or anyone else; (6) a juror may not show his or her notes or disclose their contents to other jurors until deliberations begin, but may show the notes or disclose the contents during deliberations; (7) jurors shall not take their notes out of the courtroom except to use their notes during deliberations; and (8) all juror notes will be collected after the trial is over and immediately destroyed.

   Juror note-taking is now becoming widely accepted. It is not unusual for a jury to have one or two note-takers. Note-taking is a natural progression that is not dispositive during deliberations. The practice is properly regarded as a useful tool in the jury process.

9. Separate Damages Findings Rule: Pa. R.C.P. 1042.71

   At the request of any party to a medical professional liability action, pursuant to Section 509 of Act 13, this Rule requires a breakdown of every verdict into specific categories of both past and future damages, including future medical and other related expenses by year. All other economic and non-economic damages are to be specified in a lump sum.

10. Jury Instruction on Non-Economic Loss Rule: Pa. R.C.P. 223.3

    In August 2004, the Supreme Court issued new Pennsylvania Rule of Civil Procedure 223.3, regulating jury instructions on non-economic loss. These losses encompass four items that make up a damage award, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement. The Rule also lists specific factors that jurors must consider when deliberating non-economic damage awards, as follows: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of physical pain and mental anguish which the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injury; and (8) in the case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff.

11. Excessive Non-Economic Loss Damage Award Rule: Pa. R.C.P. 1042.72

    Under this new Rule, any defendant in a medical professional liability action may seek post-trial relief on the ground that the damage award for non-economic loss is excessive. This Rule provides, in part:

    A damage award is excessive if it deviates substantially from what could be reasonable compensation. In deciding whether the award deviates substantially from what could be considered reasonable compensation, the court shall consider (1) the evidence supporting the plaintiff's claim; (2) factors that should have been taken into account in making the award; and (3) whether the damage award, when assessed against the evidentiary record, strongly suggests that the trier of fact was influenced by passion or prejudice.

    The factors are those set forth in the jury instruction described in Rule 223.3. If the court finds that the damage award for non-economic loss is excessive, the court must reduce the award. If the plaintiff declines to accept the award as reduced, the court must grant a new trial limited to a damage award for non-economic loss. The court must rule within 120 days of any motion for post-trial relief seeking to reduce an award as excessive.

VI. MOST RECENT AOPC DATA ON MEDICAL MALPRACTICE

CASE FILINGS AND VERDICTS

On April 19, 2010, the Pennsylvania Supreme Court released the latest medical malpractice data for 2009, substantiating the further decline in the number of lawsuits filed against health care providers statewide. There were 1,533 filings in 2009, representing a 43.9 percent decline from the base years 2000-2002. More specifically, the Administrative Office of Pennsylvania Courts has published its data comparing 2009 with prior years:

• In 2009, there was a 43.9 percent decline in the number of malpractice cases filed.
• In Philadelphia, where there is the largest caseload statewide, the decline was 59.2 percent, the largest decline over the seven year range of statistical analysis.
• 2009 witnessed the fewest number of jury verdicts in the plaintiff's favor, including for example:

• In 2009, in Philadelphia, 78.6 percent of the verdicts were for the defense; of the verdicts for the plaintiff, three were less than $500,000; and six were between $1 million and $5 million.
• In 2009, 85.1 percent of the verdicts statewide were for the defense. There were only twenty-three verdicts for the plaintiff, eleven less than $500,000; eleven (11) between $1 million and $5 million; and one in Allegheny County between $5 million and $10 million.

This continued dramatic downward trend in the frequency and outcome of medical malpractice cases is directly attributed to the reforms began over eight years ago. As described by the Supreme Court, "Pennsylvania is far ahead of the nation and of individual states in this arena, and we stand as a model of reform." See Appendix C hereof.

VII. MOST RECENT FINDINGS AND DATA FROM THE OFFICE OF MCARE

The MCARE Fund's coverage data is very fluid because the counts and related information change daily based upon the receipt and processing of reported coverage. However, as of June 28, 2008, the number of MCARE participating physician providers, between 1990 and 2007, have increased from 30,450 in 1990 to 37,173 in 2007, representing an 18 percent overall increase in participating providers. This statistical information refutes the notion that physicians are leaving the Commonwealth. Additionally, available information from the MCARE Fund as of July 1, 2010 - broken down by provider type - demonstrates that between 2000 and 2008, across the board, physician provider counts have remained stable and actually increased from 34,123 to 38,868. Of particular interest, orthopedic providers have actually increased from 1,036 to 1,170 and OB/GYN providers have decreased by 374 physicians or 22 percent. However, between 2006 and 2008, the number of OB/GYNs in Pennsylvania has remained virtually flat without any discernable exodus of this specialty from the Commonwealth. See Appendix D hereof.

MCARE's present unfunded liability is estimated to be approximately $1.34 billion, down from $2.12 billion as of December 31, 2006. The projected 2010 claim payments are approximately $175 million dollars, which is relatively close to the average of the last three claim years. The reduced level of payments is expected to continue into the future. See Appendix E hereof.

VIII. EVALUATION OF A POTENTIAL MEDICAL PROFESSIONAL LIABILITY CLAIM - A LAWYER'S PERSPECTIVE

Introduction

Given the recognized trend and irrefutable data indicating that there has been a reduction in claims filed between 2003 and 2009, with an average statewide decrease in claims of approximately 40 percent, it is essential for attorneys screening a potential medical professional liability case to understand the law, the rules, the medicine and the merit before accepting any case. Clearly, venue reform, Certificate of Merit procedures, and changes in social attitudes towards compensability of medical malpractice claims have resulted in a reduced frequency of filings and a dramatic reduction in the number of MCARE Fund closings with payment as compared to prior years. The average statewide decrease in claims closed with payment is approximately 40 percent, with Philadelphia County experiencing an average decrease of nearly 50 percent, and the remainder of the state experiencing an average decrease of approximately 30 percent , according to the latest Unfunded Liability Report of the MCARE Fund. Id. In a climate where the defense is winning at least three out of four medical malpractice cases that go to verdict, factual and witness integrity, thorough investigation, cost-benefit, and exquisite attention to every detail of medical and factual development is vital before any physician-based medical malpractice or hospital-liability case can be accepted. Evaluation of a potential medical malpractice claim for its factual, medical and legal merit is thus essential to responsibly undertake any case.

1. Investigation: Theory follows the facts, not the converse

   Screening of a potential medical professional liability case begins most often with a preliminary telephone conversation. More often than not, it becomes instantly apparent that the caller is "frivolous" or that any claim is beyond the Statute of Limitations. Many times, a preliminary phone call establishes rather clear-cut professional negligence, but the issue of causation is not apparent. On other occasions, the call may reveal that the tremendous financial cost and commitment to litigation would, as a practical matter, far exceed the harm caused. With these basic concepts in mind, the call may serve as a good foundation for accepting or rejecting a case, but a telephone interview is only the beginning as the decision to accept or decline a case. Personal, detailed face-to-face consultation, and, whenever possible, the request that the potential plaintiff provide any records applicable to the initial consultation before the meeting is necessary. A meaningful chronology should also be established in advance of the meeting.

   During the interview(s) with a potential client, the claim must be factually developed to determine the evidence necessary to establish a prima facie (legaly sufficient) case and damages, as well as the experts needed to proceed with merit. Potential theories of liability can then be considered as revealed by the facts. As a threshold matter, the cost of expert review and the number of experts must be considered. As a detailed chronology of past medical history, events leading up to the occurrence, and all facts and circumstances surrounding the occurrence or sequence of occurrences and post-occurrence events is mapped out, a damages analysis must be formulated and causally related to any substandard care that was a factual cause of the subject harm and other losses. Once a potential client's facts and circumstances are fully understood, they must be compared to the underlying medical records to confirm validity and identify legal and factual issues. The applicable case law, statutes, rules and theories must be factored into this "gatekeeping" assessment, including, but certainly not limited to, theories of negligence, informed consent, corporate liability, negligent infliction of emotional distress, and fraud/misrepresentation. The long term commitment to litigation must be fully informed and understood.

2. Evaluate and prepare the potential case for trial, not for settlement

   Medical injury cases must be evaluated and prepared for trial, not for settlement. An attorney practicing in this complex field of law must know the limitations of the case and its verdict potential. The investigatory phase can sometimes take months, but it must be diligently and exhaustively pursued before accepting or declining the case. Of course, a strategic discovery plan, including anticipated depositions, must be contemplated, as cases are won, more often than not, in the deposition phase. A case file must be opened with applicable Statute of Limitations and law delineated and all potential parties and issues identified. HIPAA-compliant authorizations for obtaining medical records, tax returns and employment records must also be obtained. Once representation is accepted, the case must be factually developed based upon the client's version of facts and alleged malpractice, medical history, prior and subsequent hospitalizations and prior and subsequent medical conditions. All involved witnesses, including family, friends and medical providers must be identified and considered. To the extent that any notes, logs, calendars or other documents were maintained by the patient or the patient's family relating to the medical treatment, they should also be considered as part of the intake screening and litigation process. Past, present, and future medical and related expenses, loss of services, loss of income and loss of earning capacity must also be calculated. The impact on enjoyment of life, activities of daily living, the family relationship and the toll of human suffering are critical components.

3. Identify all parties and issues

   As potential defendants are determined and the applicable Statute of Limitations is established, the attorney must develop a feel for the care believed to be sub-standard and determine whether causally connected harm arising from such care gives rise to both non-economic and economic loss sufficient to warrant the commitment to litigation. The development of theories from facts grounded upon sufficient probable cause is the benchmark. Consideration must be given to correctly identify the potential parties and recognize their status, whether it be a minor, an estate or an incompetent requiring the naming of a parent, personal representative or guardian as the plaintiff. For wrongful death and survival action cases, it is imperative that an estate be raised and named as a party-plaintiff in the Complaint or Writ of Summons before the Statute of Limitations expires.

   Simply put, the screening attorney must know the plaintiff who is the "star" of the case. As part of the truth-finding process, the screening attorney must evaluate all sources to determine what is true, what can be proven to be true, what must be conceded to be true, and what the fact finder, judge or jury, will likely accept as true. Although civil cases impose a burden of proof by a preponderance of the evidence (more likely true than not) stadard, in the medical injury area, juries tend to want "clear and convincing" evidence. Before accepting any case, the patient-plaintiff's attorney must honestly and fully assess the probability of a successful verdict. Advocacy may inspire a jury to do justice, but the real evidence must speak directly to the jury, framing tough issues in human terms and providing a real life perspective on why the underlying events transpired.

   Identifying potential defendants also begins with the client consultation. This basic information must then be used to fully develop and assess the underlying medical record which includes, but is not limited to any or all of the following:

   • Admission Record
   • Emergency Room Record
   • History and/or Physical
   • Doctors Orders
   • Progress Notes (Physicians)
   • Medication Records
   • Intravenous Record
   • Patient Controlled Analgesia Flow Sheet
   • Heparin Protocol
   • Nursing Care Plan and/or Evaluation
   • Nursing Notes
   • Flow Sheets
   • Microbiology
   • Toxicology
   • Urinalysis
   • Prenatal Record
   • Labor and Delivery Records
   • Amniocentesis
   • Newborn Record
   • Nursery Notes on Newborn
   • Fetal Monitoring Strips
   • Placental Pathology
   • Growth Curve Chart
   • Laboratory Reports
   • X-ray and/or Radiology Reports
   • Ultrasound
   • Pathology
   • History
   • Blood Bank
   • Chemistry
   • Discharge Summary
   • Diagnostic Tests
   • CT Scans, Electroencephalogram, EKG, MRI
   • Intake-outake Fluids
   • Consultations Ordered and Reports
   • Chemotherapy
   • Consent Forms
   • Experimental Drugs and Consent Forms
   • Psychiatric Records
   • Autopsy Report
   • Perfusion Record
   • Respiratory Flow Sheets
   • Arterial Blood Gases
   • Pre-anesthesia Form
   • Anesthesia Record
   • Operative Report
   • Perioperative Record
   • Recovery Room Record
   • Physical/Occupational Therapy Records
   • Temperature and/or Blood Pressure Record
   • Cover Sheet
   • Work-up Medical Plan
   • Intensive Care Record
   • Social Work Records
   • Incident Report
   • Sentinel Event Reports
   • Pre-Suit Interviews of Health Care Professionals

   The screening attorney must then mesh the records with the facts to determine the proper defendants, the medical evidence and theories of the case.

4. Think like a defense attorney

   Anticipation of defenses is just as important as establishing probable cause to proceed in any case. The screening attorney should, as a result, work backwards, evaluating damages, their cause and what happened. As all of the evidence is marshalled from the client's version of facts, the medical records, economic loss records, medical research, and expert review, the screening attorney must think like a defense attorney. Medical malpractice cases must be aggressively approached, understanding that the best defense is a better offense. In order to establish a prima facie case and a winning strategy with a jury, all potential defenses need to be properly identified and factually and logically refuted. Where the evidence may be conflicting, conflicts must be resolved by accepting them, dealing with them and overcoming them based on fact, medicine, law and advocacy. Evidentiary issues, legal defenses, credibility concerns, professional judgment arguments, and proof problems must be forecast. An honest approach to substantiate truth in this informed era of medical malpractice litigation cannot be overstated. The attorney potentially representing the victim in a medical malpractice case must "front-end load" the case with a comprehensive assessment of the facts founded in demonstrable truth and merit through competent expert review, issue simplification, organization, and coordination of proof for resolution by the jury. The expectations of the potential client must be minimized. From the very beginning, notions of constructive criticism must be applied to the potential case. If the case cannot be placed in real life perspective and in an honest, powerful and straightforward way - and within the balance of permissible advocacy within the American system of justice - the case will likely be lost before it is ever brought.

5. Confirm the investigation and secure expert review

   Every potential case must be thoroughly evaluated and submitted for expert review in keeping with the requirements of the Certificate of Merit Rules, Section 512 of the MCARE Act and Pennsylvania case law governing the qualifications and competency of expert witnesses. The credibility and competence of experts is essential. A potential expert's CV should be reviewed before seeking the expert's opinion. Selection of an expert begins with medical research. After all of the medical records have been reviewed and medical legal issues identified, and before an expert is consulted, medical research should be undertaken. This involves a study of major textbooks, medical journals and electronic medical research. Once a basic and thorough grasp of the medicine as related to the facts is accomplished, an expert in the same subspeciality as the potential defendant(s) should be obtained, bearing in mind that there are overlapping subspecialties.

   Retaining an expert is a matter of personal experience and often involves discussions with one's peer who may have used an expert. On occasion, a subsequent treating or attending physician is the best expert. Obviously, the expert must pass muster for purposes of providing a statement under the Certificate of Merit Rules and Section 512 of the MCARE Act. This requires a careful evaluation of any expert's education, knowledge, experience, training, employment and license, as well as the expert's specialty and qualifications as related to the specific care at issue. Of course, the analytical skills and demeanor of the expert are vital to trial success. For this reason, it is imperative to meet personally with the expert well in advance of trial, not only to thoroughly review the issues, but equally as important, to assess personally the capacity of the expert for jury communication in the courtroom. Academic qualifications can quickly escape a jury's attention in the absence of personality, passion, integrity and strength of purpose.

   Obviously, under the law as it has evolved, engaging more than one expert is commonplace before a case is accepted and litigation begun. In short, the selection of the expert is critical, for the expert is the threshold for determining merit and the development of theories, identification of standards, and understanding of the technical aspects of the case through medical treatises, journals, and other information essential to the establishment of a prima facie case.

Bold labels are required.

Contact Information

Name

E-mail Address Please enter a valid e-mail address.

Phone

Brief description of your legal issue

Please verify that you have read the disclaimer. I have read the disclaimer. disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Office Address
Rubin, Glickman, Steinberg and Gifford, P.C.
2605 North Broad Street
Colmar, PA 19446
Colmar Law Office
Directions

Mailing Address
PO Box 1277
Lansdale, PA 19446

Phone: 215-822-7575
Toll Free: 800-358-9367
Fax: 215-822-1713

Allentown Office
Rubin, Glickman, Steinberg and Gifford, P.C.
609 W Hamilton St
Allentown, PA 18101-2111
Allentown Law Office
Directions