ANNUAL UPDATE OF THE LAW

1. Presented by: Clifford A. Rieders, Esq. ANNUAL UPDATE OF THE LAW Lycoming Law Association March 19, 2014 12:00 p.m. – 1:00 p.m. - Holiday Inn, Williamsport Rieders, Travis, Humphrey, Harris, Waters, Waffenschmidt & Dohrmann 161 West Third Street Williamsport, PA 17701 Phone: 570-323-8711 Fax: 570-567-1025 Email: crieders@riederstravis.com www.riederstravis.com

2. NEGLIGENCE ISSUES 2 By: Clifford A. Rieders, Esq.

3. BOLE V. ERIE INSURANCE EXCHANGE50 A.3D 1256 (PA. 2012)JUSTICE EAKIN • An uninsured motorist negligently crashed his car during a hurricane. While responding to the scene, a volunteer firefighter drove over a bridge that collapsed, suffering severe injuries. • Rescuer used appropriate care in responding, did not act “rashly nor had he unnecessarily exposed himself to danger.” • Rescue doctrine did not impose liability on uninsured motorist for damages from bridge collapse which was superseding cause; disapproving Superior Court cases to the contrary. 3 By: Clifford A. Rieders, Esq.

4. BOLE V. ERIE INSURANCE EXCHANGE50 A.3D 1256 (PA. 2012)JUSTICE EAKIN • The question in arbitration for underinsurance motorist benefits is whether the rescue doctrine allows a volunteer firefighter responding to a crash to recover his underinsured motorist benefits in spite of a finding that his injuries were the result of a superseding cause, a bridge collapse. • The rescue doctrine provides that it is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the land or chattels of himself or a third person from harm. Thus the rescue doctrine permits injured rescuers to recover when their recovery would otherwise be barred by the strict application of the defense of contributory negligence. 4 By: Clifford A. Rieders, Esq.

5. BOLE V. ERIE INSURANCE EXCHANGE50 A.3D 1256 (PA. 2012)JUSTICE EAKIN • The next question is whether the rescue doctrine bars application of the principal of superseding causes: that is, is a tortfeasor liable for all injuries a rescuer suffers during the rescue, even when the injuries are caused by an unforeseeable superseding cause? • We hold the rescue doctrine will not make an original tortfeasor liable for injuries attributable to a superseding cause and we disapprove of any language to the contrary in Superior Court cases. 5 By: Clifford A. Rieders, Esq.

6. BOLE V. ERIE INSURANCE EXCHANGE50 A.3D 1256 (PA. 2012)JUSTICE EAKIN • The rescue doctrine establishes a causal link between “the tortfeasor and the rescuer’s injury” because it is reasonable that a rescuer may be injured while rendering aid. • But, tortfeasor is not a guarantor of the rescuer’s safety. • “[H]arm that is not reasonably foreseeable is not the responsibility of the tortfeasor.” • Bridge collapse was superseding cause; It was “not reasonable to foresee a bridge more than three miles away, on the rescuer’s own property, would collapse and injure” the rescuer. Bole, 50 A.3d at 1260-1261. (citations omitted) 6 By: Clifford A. Rieders, Esq.

7. KEFFER V. BOB NOLAN’S AUTO SERVICE, INC. 59 A.3D 621 (PA. SUPER. 2012)STEVENS, P.J. • Van rear-ended tow truck as it turned into median strip turn-around for emergency and authorized vehicles to make a U turn. Van crossed median, struck the guardrail rolled over and trapped driver inside, sustaining serious injuries. • Tow truck driver was not negligent, his employer was not liable for negligent training of driver; auto club not vicariously liable or negligent 7 By: Clifford A. Rieders, Esq.

8. MIRABEL V. MORALES57 A.3D 144 (PA. SUPER. 2012)PANELLA, J. • As a passenger on a bus, plaintiff sustained injuries from the bus collision with a van. Jury awarded damages. Superior Court Granted a new trial. • Jury instruction on choice of ways doctrine (which still exists despite comparative negligence) was not supported by evidence. • Choice of ways doctrine requires 1) safe course 2) dangerous course and 3) facts which put reasonable person on notice or actual knowledge of danger. In this case there was no evidence that proceeding straight was free of obstruction and would have been safe. 8 By: Clifford A. Rieders, Esq.

9. MIRABEL V. MORALES57 A.3D 144 (PA. SUPER. 2012)PANELLA, J. • The doctrine states for a person having the choice of two ways, one which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, is guilty of contributory negligence and cannot recover. 9 By: Clifford A. Rieders, Esq.

10. MIRABEL V. MORALES57 A.3D 144 (PA. SUPER. 2012)PANELLA, J. • The doctrine applies in the following circumstances • 1. No evidence established that proceeding straight down Cumberland was a safe alternative. • 2. Rather there must be evidence establishing that Cumberland was free of obstructions that would allow Schulgen to proceed safely down it. • 3. The jury instruction probably misled the jury because it implied the availability of a safe alternative, one not established by evidence which may have affected the jury’s calculus when determining liability. 10 By: Clifford A. Rieders, Esq.

11. MIRABEL V. MORALES57 A.3D 144 (PA. SUPER. 2012)PANELLA, J. • Discussing wealth and size of Comcast in closing was reversible error. • Jury instruction on choice of ways doctrine was not supported by evidence. 11 By: Clifford A. Rieders, Esq.

12. LONGWELL V. GIORDANO57 A.3D 163 (PA. SUPER. 2012)STRASSBURGER, J. • Tenant sued landlord and contractor after a slip and fall on asphalt pavement where his shoe caught the edge of a drop-off. • Court applied Restatement (Second) of Torts § 360, Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use. • Comment b provides in part: “the lessor remains liable to him notwithstanding his knowledge of the existence of the condition.” • Court could not say “as a matter of law that a reasonable man would regard it as foolhardy to walk along the … driveway at night knowing that the area was poorly lit and that there was a drop off,” nor that tenant failed to exercise reasonable care. • Genuine issue of material fact exists. Longwell, 57 A.3d at 168-169 12 By: Clifford A. Rieders, Esq.

13. LONGWELL V. GIORDANO57 A.3D 163 (PA. SUPER. 2012)STRASSBURGER, J. • Court noted that “[t]he risk must be perceived, and the risk must be faced voluntarily.”Longwell, 57 A.3d at 170 (citation for quote omitted)(emphasis added by Court) for assumption of the risk to apply. • The doctrine did not bar recovery. Even though the tenant was aware that “the drop-off posed a threat,”“he could not see the drop-off,”” was mistaken as to where” it was and “thought he left a margin of error.” • The court concluded that the tenant “subjectively saw himself as avoiding harm.”Id. (emphasis by court) 13 By: Clifford A. Rieders, Esq.

14. LONGWELL V. GIORDANO57 A.3D 163 (PA. SUPER. 2012)STRASSBURGER, J. • The pavement contractor did not owe a duty to the tenant. • Under the Restatement (Second) of Torts § 385, the contractor’s work would have had to make a dangerous condition “in a manner unlikely to be discovered by the possessor[.]” • The landlord was aware of the drop-off both before and after the contractor paved the driveway. 14 By: Clifford A. Rieders, Esq.

15. SHINER V. RALSTON64 A.3D 1 (PA. SUPER. 2013)PER CURIAM • Plaintiff driver who was injured in an automobile accident brought suit against estate of defendant driver of car that had struck plaintiff’s vehicle. • Trial court granted Summary Judgment for Defendant and his employer, holding that the collision was the result of a sudden unforeseeable medical emergency. The trial court had held that Defendant was entitled to judgment as a matter of law under the sudden emergency doctrine. • Court held that the trial court improperly confused the “sudden emergency doctrine” with the “sudden medical emergency defense.” 15 By: Clifford A. Rieders, Esq.

16. SHINER V. RALSTON64 A.3D 1 (PA. SUPER. 2013)PER CURIAM • The sudden emergency doctrine, relates to the standard of conduct of a driver who although driving in a prudent manner, is confronted with a sudden or unexpected event which leaves little or no time to apprehend the situation and act accordingly, and therefore should not be subject to liability because another more prudent action may have been available. This doctrine is a standard of conduct and need not be pled. • The sudden medical emergency doctrine is an affirmative defense, which is often pled as a sudden loss of consciousness or incapacitation. It must be pled as new matter and proven by the defendant. This is the defense that is potentially applicable in this case. 16 By: Clifford A. Rieders, Esq.

17. SHINER V. RALSTON64 A.3D 1 (PA. SUPER. 2013)PER CURIAM • Trial court improperly placed the burden on the plaintiff to disprove the loss of consciousness was sudden and unexpected, rather than on Defendant to prove it affirmatively. • In summary judgment, burden on Defendant to show that there was no material issue of fact. Defendant failed to prove his affirmative defense under the sudden medical emergency doctrine. • The evidence offered to prove that Decedent’s cardiac syncope was unforeseen (medical records and witness testimony of his condition) and was insufficient for summary judgment purposes because there could have been evidence outside of the medical records of a condition and witnesses could be found not credible by a jury. • Grant of summary judgment was reversed. 17 By: Clifford A. Rieders, Esq.

18. WRIGHT V. EASTMAN63 A.3D 281 (PA. SUPER. 2013)WECHT, J. • Pedestrian’s estate sued motorist based on negligence claim after motorist struck pedestrian on roadway. • Appellant (pedestrian) appealed from order granting summary judgment to Appellee (driver). 18 By: Clifford A. Rieders, Esq.

19. WRIGHT V. EASTMAN63 A.3D 281 (PA. SUPER. 2013)WECHT, J. • Court reversed grant of Summary Judgment on appeal. • “It is not for the trial court to assess whether Pedestrian’s testimony was credible. . . .This is precisely why the jury must be permitted to assess credibility. We also may not do so because it would not be mandatory for the jury, even if it credited Driver’s testimony regarding the distance at which he observed Decedent, to conclude that was the earliest moment at which he could have observed Decedent.” 19 By: Clifford A. Rieders, Esq.

20. WRIGHT V. EASTMAN63 A.3D 281 (PA. SUPER. 2013)WECHT, J. • Court held that the trial court intruded on the province of the jury by evaluating the facts and dismissing the expert reports. • “Such circumstantial evidence could lead a jury to conclude that Appellee’s breach of duty was a proximate cause of Decedent’s death.” 20 By: Clifford A. Rieders, Esq.

21. CORNELIUS V. ROBERTS ET. AL.71 A.3D 345 (Pa. Cmwlth. 2013)P COLINS, J. • Decedent’s estate sued operator of speeding car, police officer and Harrisburg City Police Bureau after police car hit decedent’s car during a police chase. • Plaintiff-Decedent alleged that officer operated car in a negligent manner during the chase and that the Police Bureau was negligent in failing to properly train and supervise the officer. • Defendants argued that a local agency and its police employees do not owe a common law duty to innocent bystanders during police pursuits of fleeing subjects. 21 By: Clifford A. Rieders, Esq.

22. CORNELIUS V. ROBERTS ET. AL.71 A.3D 345 (Pa. Cmwlth. 2013)P COLINS, J. • In Jones v. Chieffo, 700 A.2d 417 (Sup. Ct. Pa. 1997), the Pennsylvania Supreme Court had previously held that negligent or criminal acts of fleeing suspects do not, as a matter of law, constitute a superseding cause that prevents a jury from finding negligent acts by police officers a substantial factor in causing innocent bystanders harm. • In Aiken v. Borough of Blawnox, 747 A.2d 1282, 1285 (Pa. Cmwlth 2000), the Commonwealth Court had previously held that a local agency and its employees owe a common law duty to innocent bystanders in operation of a police vehicle during police pursuits of fleeing suspects. 22 By: Clifford A. Rieders, Esq.

23. CORNELIUS V. ROBERTS ET. AL.71 A.3D 345 (Pa. Cmwlth. 2013)P COLINS, J. • The court held that the General Assembly did not intend to remove all parties injured by negligent operation of a police vehicle during a police pursuit from the class of individuals able to recover under the Tort Claims Act, but for innocent bystanders to remain eligible to recover from a local agency and its employees, if injured in a police pursuit. • Court affirmed the decisions of the trial court and agreed that it was impossible to say with certainty that the actions of the Officer in operating his police vehicle in pursuit of the fleeing car was not a substantial factor in causing decedent’s injuries. 23 By: Clifford A. Rieders, Esq.

24. WRONGFUL BIRTH 24 By: Clifford A. Rieders, Esq.

25. SERNOVITZ V. DERSHAW 57 A.3D 1254 (PA. SUPER. 2012) DONOHUE, J. • Parents brought wrongful birth and wrongful life action after their son was born with familial dysautonomia. • Because their child was at increased risk for the disease, they underwent testing. Defendants failed to inform them that mother was a carrier and mother was informed that she tested negative for all mutations for which she was tested. • Upon learning son’s diagnosis, both parents learned that they must be carriers but were “not given the opportunity to determine whether they should terminate the pregnancy. • Superior Court concluded that 42 Pa.C.S.A. § 8305 which prohibits wrongful birth and wrongful life actions is unconstitutional because the manner in which it was enacted violated article II, Section 3, violating the single subject rule. 25 By: Clifford A. Rieders, Esq.

26. MEDICAL MALPRACTICE 26 By: Clifford A. Rieders, Esq.

27. THIERFELDER V. WOLFERT 52 A.3D 1251 (PA. 2012) CHIEF JUSTICE CASTILLE • A general practitioner who provided some “incidental mental health treatment” to patient had no duty to refrain from sex with patient; that “higher standard” of duty was limited to mental health specialists. • Husband and wife sought treatment from general practitioner for “libido problems.” • Wife was also treated for attention deficit disorder. 27 By: Clifford A. Rieders, Esq.

28. THIERFELDER V. WOLFERT 52 A.3D 1251 (PA. 2012) CHIEF JUSTICE CASTILLE • Doctor and patient - wife engaged in a year long consensual sexual relationship which began after wife considered doctor to be her hero and to have “cured” her. • Court accepted for purposes of its decision that mental health specialists would owe a duty to refrain from sexual contact with their patients and that Pennsylvania’s Medical Practice Act of 1985, §§422.1-422.5a “does not support concept of different duties for physicians who provide the same care.” • Transference phenomenon is therapeutic model for mental health specialists which they know or should know makes patients particularly vulnerable to sexual exploitation. • General practitioners increasingly advise on mental health and prescribe medication for emotional conditions but do not provide the kind of therapeutic treatment provided by a mental health specialist which includes transference. 28 By: Clifford A. Rieders, Esq.

29. COOPER EX REL COOPER V. LANKENAU HOSP. 51 A.3D 183 (PA. 2012) BAER, J. • Patient alleged medical battery for Cesarean section after twenty-seven weeks of pregnancy despite patient’s refusal of consent. • In a medical battery/lack-of-consent case, plaintiff need not prove any intent to harm the patient. Proving an intention surgery or “touching” satisfied the “offensive contact” element. • Court concluded that the jury instruction was acceptable, but suggested that the Committee for Proposed Standard Jury Instructions to consider clearer instructions, which it did. 29 By: Clifford A. Rieders, Esq.

30. SCAMPONE V. HIGHLAND PARK CARE CENTER 57 A.3D 582 (PA. 2012) CHIEF JUSTICE CASTILLE • Jury verdict found nursing home facility was both corporately and vicariously liable for resident’s death. • 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. • Despite significant symptoms, the resident was denied nursing care for nineteen days before she died. • Dehydration and malnutrition caused resident’s fatal heart attack. 30 By: Clifford A. Rieders, Esq.

31. SCAMPONE V. HIGHLAND PARK CARE CENTER 57 A.3D 582 (PA. 2012) CHIEF JUSTICE CASTILLE • 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.” 31 By: Clifford A. Rieders, Esq.

32. SCAMPONE V. HIGHLAND PARK CARE CENTER 57 A.3D 582 (PA. 2012) CHIEF JUSTICE CASTILLE • 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. 32 By: Clifford A. Rieders, Esq.

33. SCAMPONE V. HIGHLAND PARK CARE CENTER 57 A.3D 582 (PA. 2012) CHIEF JUSTICE CASTILLE • 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. 33 By: Clifford A. Rieders, Esq.

34. PASSARELLO V. GRUMBINE 2014 WL 502490 (PA. FEB. 7, 2014)MCCAFFERY, J. • Parents of deceased child brought medical malpractice action against child’s treating physician and her employer. • The court affirmed that an “error in judgment” jury charge should not be given in a medical malpractice case because “error in judgment instructions pose palpable and substantial risks of confusing juries with respect to the standard of care.” 34 By: Clifford A. Rieders, Esq.

35. PASSARELLO V. GRUMBINE2014 WL 502490 (PA. FEB. 7, 2014)MCCAFFERY, J. • The Superior Court’s decision in Pringle v. Rapaport, holding that the “error in judgment” jury instructions should not be given in medical malpractice cases applied retroactively. The court required a new trial. • The Court held that the plaintiffs had preserved the objection by arguing that the trial court should only give the medical malpractice charge in the Pa. Suggested Standard Jury Instructions, which specifically rejects the error in judgment charge.  35 By: Clifford A. Rieders, Esq.

36. HALL V. EPISCOPAL LONG TERM CARE 54 A.3D 381 (PA. SUPER. 2012) STEVENS, P.J. • Evidence of understaffing was sufficient to support claim for corporate negligence. • Issue of punitive damages should go to jury. • Evidence similar to that presented in Scampone 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.” 36 By: Clifford A. Rieders, Esq.

37. CATLIN V. HAMBURG 56 A.3D 914 (PA. SUPER. 2012) OLSON, J. • Negligent sterilization resulted in fetus with congenital abnormalities at 19 ½ weeks which was voluntarily terminated and resulted in total hysterectomy. • An Expert, board certified in obstetrics and gynecology since 1978, testified that “standard of care requires that when a surgical technique is seen to fail during a surgery, or when a more secure technique is available to accomplish the same goal, then the surgeon should perform the more secure and safer surgical procedure.” • Essentially since the Filshie clip on right fallopian tube slipped prompting the performance of a modified Polmeroy procedure, the same should have been done on the left fallopian tube but was not. 37 By: Clifford A. Rieders, Esq.

38. CATLIN V. HAMBURG 56 A.3D 914 (PA. SUPER. 2012) OLSON, J. • That expert’s failure to cite medical literature did not render his opinion inadmissible or speculative. • The expert opinion was not required to rule out all conceivable causes of the pregnancy, which goes to weight of evidence. • Also trial court erred in limiting damages to 2 week postnatal period because there was no birth in this case; it was error to equate situation to wrongful birth. 38 By: Clifford A. Rieders, Esq.

39. OSBORNE V. LEWIS 59 A.3D 1109 (PA. SUPER. 2012)OLSON, J. • 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. • Court held the medical malpractice claim was barred by the seven-year statute of repose of the Mcare Act, 40 P.S. § 1303.513. 39 By: Clifford A. Rieders, Esq.

40. OSBORNE V. LEWIS 59 A.3D 1109 (PA. SUPER. 2012)OLSON, J. • Court noted that the seven-year statute of repose was one of the ways that the McCare Act was to address the crisis of professional liability insurance. • “A cause of action accrues when a plaintiff could first maintain the action to successful conclusion. “ Citation omitted. 59 A.3d 1114. • In this case, the cause of action arose only after the negative effects of the LASIK surgery were ascertainable, late 2003 or 2004. As a result, the statute of repose applied. 40 By: Clifford A. Rieders, Esq.

41. OSBORNE V. LEWIS 59 A.3D 1109 (PA. SUPER. 2012)OLSON, J. • The 7 year statute of repose barred the action even though the action could not have been brought before 2003, 2004. • 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. 41 By: Clifford A. Rieders, Esq.

42. OSBORNE V. LEWIS 59 A.3D 1109 (PA. SUPER. 2012)OLSON, J. • 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). 42 By: Clifford A. Rieders, Esq.

43. BUCKMAN V. VERAZIN 54 A.3D 956 (PA. SUPER. 2012)BENDER, J. • Patient brought medical malpractice claim after undergoing sigmoid colectomy and colostomy. • 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. 43 By: Clifford A. Rieders, Esq.

44. BUCKMAN V. VERAZIN54 A.3D 956 (PA. SUPER. 2012)BENDER, J. • Superior Court reversed the granting of the motion to compel because the inquiry was not relevant. Doctor’s actions when operating on other patients was not probative of what his actions were when caring for this patient. • What the doctor “knew or believed to be the standard of care is of no moment” and was only intended to counter doctor’s erroneous employment of the “error in judgment” rule as defense. • Court reiterated that the standard of care is objective and either met or not. It “does not allow consideration of the subjective state of mind of the doctor when he or she undertakes to treat a patient.” 44 By: Clifford A. Rieders, Esq.

45. SAYLER V. SKUTCHES 40 A.3D 135 (PA. SUPER. 2012)OTT, J. • This case involved the calculation of attorney fees where the plaintiff suffered a delay in breast cancer diagnosis and without access to funds from judgment on appeal lacked access to further treatment pending appeal and died approximately a year and four months after the jury award but prior to appellate review. • § 509 only refers to attorney fees by stating that “future damages for medical or other related expenses shall be paid as periodic payments after payment of the proportionate share of counsel fees and costs based upon the present value of the future damages awarded pursuant to this subsection.” (emphasis by the court) 40 P.S. 1303.509(b)(1). 45 By: Clifford A. Rieders, Esq.

46. SAYLER V. SKUTCHES 40 A.3D 135 (PA. SUPER. 2012)OTT, J. • Court held that § 509 of the MCARE Act, 40 P.S. 1303.509, did not authorize additional attorney fees and that the attorney fees are calculated based on the present value of the patient’s future damages at the time of death rather than on the potential award. Appeal Denied by Pennsylvania Supreme Court at 54 A.3d 349 (Pa. Oct 05, 2012) (Table, NO. 360 MAL 2012). • The “American Rule” precludes recovery of attorney fees from the adverse party “unless there is express statutory authorization, a clear agreement of the parties, or some other established exception.” (citation omitted) 46 By: Clifford A. Rieders, Esq.

47. SAYLER V. SKUTCHES 40 A.3D 135 (PA. SUPER. 2012)OTT, J. • A significant fact in Sayler was that the plaintiff died prior to the calculation of attorney fees. As a result, liability for future damages already terminated pursuant to 40 P.S. 1303.509(b)(3). • Under those circumstances, the court viewed attorney fees based on future damages as an addition to the jury award, requiring express statutory authorization. • In many cases, however, the question of when the future damages will terminate remains unknown at the time of the attorney fee calculation. Attorney fees based upon a percentage of this unknown amount can be viewed as a percentage of the jury award rather than as an additional cost imposed upon an adverse party. 47 By: Clifford A. Rieders, Esq.

48. SAYLER V. SKUTCHES 40 A.3D 135 (PA. SUPER. 2012)OTT, J. • The court did not discuss the potential for conflict of interest (See my commentary for JICIV §14.150) between attorneys and plaintiffs nor the authority from other jurisdictions which analyzed similar medical malpractice statutes. • Court’s conclusion is said to be consistent with the declaration of MCARE Act “to limit jury awards in medical malpractice suits in order to ensure affordable health care premiums.” • No consideration of incentivizing defendants to delay treatment pending appeal expediting death of patient prior to entry of judgment, as occurred in this case. 48 By: Clifford A. Rieders, Esq.

49. NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY SUPERIOR COURT NO. 2923 EDA 2013 • PAJ Amicus • In the court below, Judge Bernstein found that he had calculated attorney’s fees properly. • Saylor vs. Skutches was distinguished. • Total verdict $65,004,670. • How to apply §509(b) of the MCARE Act to determine counsel fees. 49 By: Clifford A. Rieders, Esq.

50. NICHOLSON-UPSEY V. POTTSTOWN HOSPITAL COMPANY SUPERIOR COURT NO. 2923 EDA 2013 • Future medical expenses reduced to present value is $29,793.338. • Counsel is entitled to one-third (1/3) of this pursuant to contingent fee agreement. 50 By: Clifford A. Rieders, Esq.