8th Annual Medical Malpractice Seminar

1. 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. 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. 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 child’s 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 child’s 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. LEWIS59 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. • Patient’s medical malpractice action was subject to seven year statute of repose in the MCARE Act where the surgery took place prior to MCARE’s 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 MCARE’s two year statute of repose applicable to wrongful death and survival actions. • Plaintiff’s 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 resident’s fatal heart attack. • Court held that evidence was sufficient to find that nursing home could be liable for resident’s 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 patient’s overall health care. • Nursing home provides comprehensive and continual physical care for its patients. • Nursing home is akin to a hospital rather than a physician’s 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 CENTER11 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 resident’s 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 resident’s 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 CENTER11 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 Althausfactors. 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 patient’s 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 Pennsylvania’s 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 mother’s 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 home’s 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 patient’s child brought medical battery action against hospital and physicians, alleging that physician had delivered baby by cesarean section despite patient’s 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 Court’s 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) • Plaintiff’s 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 minor’s 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 Court’s 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 minor’s 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 state’s 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. • State’s 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, 291–92, 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 ADHS’s 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.1:12-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, Rawlings—on behalf of Oxford—informed 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.1:12-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 beneficiary’s 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 wife’s osteosarcoma.   • The plaintiff settled with the radiologist – with the settlement funded by that physician’s 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 plaintiff’s 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 Act’s 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 • Patient’s Medical History • Inculpatory Statements by Treating Physician • EXPERT • JURY INSTRUCTION ON NURSE’S 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 patient’s 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 7:30 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 patient’s 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 6:00 a.m. nurse Stalder contacted Dr. Bonaroti who was already on his way to the hospital. The patient’s 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