Large Verdict, Little Recourse
On October 17, 2012, the Pennsylvania Supreme Court issued an order rescinding Rule 1042.72 of the Pennsylvania Rules of Civil Procedure. The now-rescinded rule previously provided malpractice defendants recourse to request that a trial court reduce — or remit — the amount of a jury’s verdict.
CMS Attempts to Clarify Methods of Reimbursing Future Medical Expenses
Think having to report settlements with Medicare beneficiaries was bad? Just wait for Rules coming that require consideration of Medicare’s interest in reimbursement of future medical expenses. CMS has issued an Advance Notice of Proposed Rulemaking soliciting comments on seven methods of ensuring protection of Medicare’s interest for current and prospective Medicare beneficiaries.
Recent Developments in Pennsylvania Expert Discovery
The past two years have seen important changes in expert discovery in Pennsylvania state and federal courts. Two notable developments are the 2011 Pennsylvania Superior Court case of Barrick v. Holy Spirit Hospital and the amendments to Federal Rule of Civil Procedure 26 that were effective on December 1, 2010. Read more 
Trial Team Scores Defense Verdict
The posts have been slow recently, but for good reason! We were preparing for a lengthy trial. After nearly two weeks of testimony, the jury returned a verdict in favor of the defense on Friday, April 13. The defense team consisted of Jon Stepanian, Carolyn Moser, and paralegal Liz Wilson. We were all pleased with the outcome on behalf of our hospital client and its staff.
After a brief respite, it will be back to the grind and new posts!
“Maternal Forces of Nature” Defense Held Scientifically Invalid
An Appellate Panel in New York has rejected a defense in obstetrical medical malpractice cases as scientifically invalid. In Muhammad v. Fitzpatrick, the Appellate Division, Fourth Department, upheld an Erie County Supreme Court decision that precluded the defense from presenting evidence that a newborn’s injuries were caused by the “maternal forces of labor” during the birthing process rather than by any negligent acts on the part of the defendant healthcare providers. The Panel’s decision is notable not only because it is contrary to all other known appellate rulings on this issue, but also because — in less than a page — the New York appellate court rejected what had previously been an unquestioned defense in obstetrical medical negligence cases.
Study Evaluates Methods of Communicating Treatment Risks
Through the informed consent process, health care providers have the opportunity and often the obligation to disclose treatment risks to their patients. However, it is not well understood how well patients understand and comprehend the risks presented to them.
Comprehension and recall of risks disclosed through the informed consent process is important if the process is to be successfully used as a risk reduction strategy. Often if those known treatment risks materialize, health care providers remind patients of their prior discussions about the potential for those risks even with ideal treatment. Unfortunately patients don’t always remember those discussions well and infer that someone must have acted inappropriately when a known risk materializes.
A recent study published in the Annals of Internal Medicine compared ways of presenting risks to patients to achieve greater comprehension and understanding. The authors observed at the outset that many major organizations recommend using natural frequencies (i.e., 2 in 1000 persons) to present absolute risks; data supporting those recommendations is limited, however.
Gap Between Malpractice Risk for Inpatient and Outpatient Care Closes
Physicians and medical malpractice attorneys alike probably speculate that practitioners of the various surgical specialties carry the highest risk of being named in a malpractice lawsuit. After all, adverse events in those fields have the potential to be catastrophic and tend to be associated with large payouts for plaintiffs. In actuality, they may be wrong, according to recent trends.
Defense of Medicine in the Wild
Apparently I wasn’t the only one interested in the Pennsylvania Superior Court’s decision imposing potential liability on physicians for injuries to people who were not even yet born — so-called “preconception torts.” The rationale of the opinion not only gives rise to claims for injuries to those not yet born, but may also result in the extension of physician liability to injuries sustained by individuals who are not even their patients.
Legal Intelligencer reporter Zach Needles saw my post and gave me a call to get my take on the case, Matharu v. Muir.
Yesterday the article hit the stands. You can read more about it and get links to the article at Mr. Needles’s “Reporter’s Notebook” entry on the Legal Intelligencer’s blog.
Physicians May Be Responsible for Injuries to Future, Unconceived Children
In a recent opinion, the Pennsylvania Superior Court held that physicians may be responsible for injuries to future children who were not even conceived at the time of the alleged negligence. The imposition of a duty of care to future, unborn children is an unprecedented extension of physician liability in the Commonwealth. Read more
Pennsylvania Senate Reforms Joint and Several Liability
Yesterday the Pennsylvania Senate voted to reform the Commonwealth’s joint and several liability rules. With the Senate’s vote and the Pennsylvania House’s earlier passage of a virtually identical measure, joint and several liability is on its deathbed in the Commonwealth.
