Verdicts

Certifying Experts' Credentials Remain Confidential in PA

Explaining the new rules in Pennsylvania, Common Pleas Judge Mark I. Bernstein's opinion in Frunzi v. Muller, PICS Case No. 03-1573 (C.P. Philadelphia 10/25/03) emphasized that the identity and credentials of plaintiffs' experts certifying the validity of medical malpractice cases cannot be disclosed until 30 days after dismissal. This was the first reported case in Pennsylvania dealing with the new requirement, which went into effect January 27, that within 60 days of the filing of a professional liability action, a certificate of merit must be filed with the court containing a certification that a licensed professional has reviewed the plaintiff's case and found that there may have been a breach of professional standards that caused plaintiff harm.

Defendant's attorneys in Frunzi challenged the maintenance of confidentiality of the certifier's credentials, asserting that although the identity of the certifier might properly be kept hidden, his or her competence to certify could not be ascertained by defense without information on the certifier's credentials. But “neither the rule nor the commentary note provide any support for pretrial discovery concerning the identity or curriculum vitae of the author,” Bernstein wrote. However, if plaintiff later plans to call the certifying professional as a witness, the usual rules governing expert testimony apply.

Hospital Not Liable for Physician's Error

A malpractice plaintiff could not recover against a hospital whose emergency room she'd been admitted to because the doctor she saw was not employed by the hospital and had already been chosen to treat her before she entered the hospital. Vaynman v. Maimionides Medical Center, Sup. Ct. IA Part 47, (Sup. Ct., Kings Cty. NY. 10/16/03).

Plaintiff's ward was admitted to Coney Island Hospital after a brain aneurysm. After consultations with a neurosurgeon associated with a private medial group having admitting privileges at both Coney Island Hospital and defendant hospital, she was transferred to defendant hospital, where she was under the care of another doctor associated with the medical group.

In plaintiffs' medical malpractice action, the hospital argued that it could not be held vicariously liable for services performed by private attending physicians not employed by it. Based on Mduba v. Benedictine Hospital, 52 AD2d 450, plaintiffs argued that the hospital was liable because the patient, in being admitted, was not seeking treatment from a specific physician but was simply seeking emergency services from the hospital. Mduba holds that although a hospital will usually not be held responsible for actions of physicians not controlled or supervised by it, an exception to that general rule is where a patient enters an emergency room seeking treatment from a hospital rather than a specific physician and is ultimately treated by doctors furnished but not employed by the hospital. The Mduba line of cases is based on the principle that when a hospital holds itself out to the public offering and rendering hospital services, patients should not be bound by “the secret limitations contained in a private contract between the hospital and the doctor.” Mduba, 52 AD2d at 453. The court found plaintiff's reliance on Mduba misplaced, however, because this was not a case in which the patient entered the emergency room “off the street.” Instead, she was transferred to defendant hospital from Coney Island Hospital. The hospital had no input as to the woman's treating physicians, who had already been chosen when she entered the hospital's emergency room. Therefore, the court dismissed the case against the hospital.

Unintentional 'Concealment' Does Not Extend Florida's Statute of Repose

Because “concealment” requires knowledge, a provision extending Florida's 4-year statute of repose in medical malpractice cases where “fraud, concealment, or intentional misrepresentation” prevents discovery of an injury does not apply to a case alleging negligent diagnosis by a clinical laboratory, the Florida Supreme Court says. Nehme v. SmithKline Beecham Clinical Lab. Inc., No. SC02-1680 (Fla. Sup. Ct. 9/25/03).

In 1994, Rhonda Nehme had a pap smear taken at the county public health department. The sample was sent to the SmithKline Beecham Clinical Laboratory, which gave it to a cytotechnologist for analysis. No abnormalities were reported. In 1997, however, it was discovered that the sample showed substantial evidence of malignancy. Nehme died soon after from cervical cancer. In 1999, more than 5 years after the smear, her estate sued the lab for malpractice. The trial court granted a defense motion for summary judgment, ruling that the state's 4-year statute of repose barred the action. The estate argued for an extension on the ground that Nehme could not have made an earlier discovery of the error. Finding that statutory language supported the defendants but that case law seemed to favor Nehme, a state appeals court certified the question to Florida's highest court.

Relying on definitions from law and everyday dictionaries, the state Supreme Court said that the term “concealment” requires knowledge and/or intentional conduct. It said that a “negligent diagnosis, without more, does not constitute concealment.”

Lack of Expert Does Not End Iowa Suit

The Iowa District Court for Black Hawk County erred in dismissing plaintiff's malpractice claims against a doctor and hospital for failure to present expert evidence because the issues at hand were such that lay jurors could understand them without expert assistance. Campbell v. Delbridge, No. 89/02-1007 2003 Iowa Sup. LEXIS 190 (Sup. Ct. of Iowa 10/8/03).

Plaintiff Lester Campbell, whose treatment after knee surgery is the subject of this suit, is a Jehovah's Witness. He made it clear in his presurgical physical and at his preadmission appointment that his religious beliefs precluded the use of blood or blood products, including his own. His medical chart made numerous references to his refusal to accept blood infusions. Campbell did not receive any blood or blood products during surgery, but after surgery, his doctor ordered the use of a Gish Orthoinfuser (Gish) to collect blood from the surgical site. The doctor decided to use the Gish, as opposed to other devices, because the Gish provided a reservoir where blood can be stored for disposal or possible reinfusion, and it provided the best suction. Further, use of the Gish would preserve Campbell's ability to change his mind about receiving his own blood should it become medically necessary.

The nurse anesthetist who took Campbell to the postanesthesia care unit (PACU) stated in an affidavit that, at the request of the doctor, she told the PACU nurses that Campbell was a Jehovah's Witness and was not to be reinfused. The PACU nurses, however, denied receiving this information. The nurse who started the reinfusion admitted in her deposition that she did not look at Campbell's chart for an order to start the reinfusion, as usually required. She based her decision to reinfuse on the fact that the Gish, with its blood reservoir, suggested that reinfusion was to be done. There was also some evidence that the nurse did not read the chart because the doctor took it with him, and that there might have been a mix-up between Campbell's chart and another patient's. Campbell was reinfused with his own blood for just under an hour.

Campbell sued the doctor and the hospital. He originally indicated that he would have an expert witness on the doctor's standard of care, but that witness was withdrawn. The doctor, while admitting that an error had been made by someone in this case, moved for summary judgment on the ground that, without expert testimony, Campbell could not make a prima facie showing on any of his theories of recovery. The hospital filed a motion to preclude the plaintiff's medical evidence. The trial court concluded that the plaintiff lacked the necessary expert witnesses to establish liability or damages, and the suit was dismissed.

The appellate court noted that whether reinfusion was called for, from a medical perspective, or whether the infusion was properly done would obviously require testimony by a medical expert. But the evidence concerning the lack of communication between the doctor and the PACU nurses, the possible mix-up in patient charts, and the doctor's admission of error were capable of being resolved by a fact finder without the testimony of experts. It found the lower court erred in concluding otherwise and in granting summary judgment against the plaintiff on that basis.

Certifying Experts' Credentials Remain Confidential in PA

Explaining the new rules in Pennsylvania, Common Pleas Judge Mark I. Bernstein's opinion in Frunzi v. Muller, PICS Case No. 03-1573 (C.P. Philadelphia 10/25/03) emphasized that the identity and credentials of plaintiffs' experts certifying the validity of medical malpractice cases cannot be disclosed until 30 days after dismissal. This was the first reported case in Pennsylvania dealing with the new requirement, which went into effect January 27, that within 60 days of the filing of a professional liability action, a certificate of merit must be filed with the court containing a certification that a licensed professional has reviewed the plaintiff's case and found that there may have been a breach of professional standards that caused plaintiff harm.

Defendant's attorneys in Frunzi challenged the maintenance of confidentiality of the certifier's credentials, asserting that although the identity of the certifier might properly be kept hidden, his or her competence to certify could not be ascertained by defense without information on the certifier's credentials. But “neither the rule nor the commentary note provide any support for pretrial discovery concerning the identity or curriculum vitae of the author,” Bernstein wrote. However, if plaintiff later plans to call the certifying professional as a witness, the usual rules governing expert testimony apply.

Hospital Not Liable for Physician's Error

A malpractice plaintiff could not recover against a hospital whose emergency room she'd been admitted to because the doctor she saw was not employed by the hospital and had already been chosen to treat her before she entered the hospital. Vaynman v. Maimionides Medical Center, Sup. Ct. IA Part 47, (Sup. Ct., Kings Cty. NY. 10/16/03).

Plaintiff's ward was admitted to Coney Island Hospital after a brain aneurysm. After consultations with a neurosurgeon associated with a private medial group having admitting privileges at both Coney Island Hospital and defendant hospital, she was transferred to defendant hospital, where she was under the care of another doctor associated with the medical group.

In plaintiffs' medical malpractice action, the hospital argued that it could not be held vicariously liable for services performed by private attending physicians not employed by it. Based on Mduba v. Benedictine Hospital , 52 AD2d 450, plaintiffs argued that the hospital was liable because the patient, in being admitted, was not seeking treatment from a specific physician but was simply seeking emergency services from the hospital. Mduba holds that although a hospital will usually not be held responsible for actions of physicians not controlled or supervised by it, an exception to that general rule is where a patient enters an emergency room seeking treatment from a hospital rather than a specific physician and is ultimately treated by doctors furnished but not employed by the hospital. The Mduba line of cases is based on the principle that when a hospital holds itself out to the public offering and rendering hospital services, patients should not be bound by “the secret limitations contained in a private contract between the hospital and the doctor.” Mduba, 52 AD2d at 453. The court found plaintiff's reliance on Mduba misplaced, however, because this was not a case in which the patient entered the emergency room “off the street.” Instead, she was transferred to defendant hospital from Coney Island Hospital. The hospital had no input as to the woman's treating physicians, who had already been chosen when she entered the hospital's emergency room. Therefore, the court dismissed the case against the hospital.

Unintentional 'Concealment' Does Not Extend Florida's Statute of Repose

Because “concealment” requires knowledge, a provision extending Florida's 4-year statute of repose in medical malpractice cases where “fraud, concealment, or intentional misrepresentation” prevents discovery of an injury does not apply to a case alleging negligent diagnosis by a clinical laboratory, the Florida Supreme Court says. Nehme v. SmithKline Beecham Clinical Lab. Inc., No. SC02-1680 (Fla. Sup. Ct. 9/25/03).

In 1994, Rhonda Nehme had a pap smear taken at the county public health department. The sample was sent to the SmithKline Beecham Clinical Laboratory, which gave it to a cytotechnologist for analysis. No abnormalities were reported. In 1997, however, it was discovered that the sample showed substantial evidence of malignancy. Nehme died soon after from cervical cancer. In 1999, more than 5 years after the smear, her estate sued the lab for malpractice. The trial court granted a defense motion for summary judgment, ruling that the state's 4-year statute of repose barred the action. The estate argued for an extension on the ground that Nehme could not have made an earlier discovery of the error. Finding that statutory language supported the defendants but that case law seemed to favor Nehme, a state appeals court certified the question to Florida's highest court.

Relying on definitions from law and everyday dictionaries, the state Supreme Court said that the term “concealment” requires knowledge and/or intentional conduct. It said that a “negligent diagnosis, without more, does not constitute concealment.”

Lack of Expert Does Not End Iowa Suit

The Iowa District Court for Black Hawk County erred in dismissing plaintiff's malpractice claims against a doctor and hospital for failure to present expert evidence because the issues at hand were such that lay jurors could understand them without expert assistance. Campbell v. Delbridge, No. 89/02-1007 2003 Iowa Sup. LEXIS 190 (Sup. Ct. of Iowa 10/8/03).

Plaintiff Lester Campbell, whose treatment after knee surgery is the subject of this suit, is a Jehovah's Witness. He made it clear in his presurgical physical and at his preadmission appointment that his religious beliefs precluded the use of blood or blood products, including his own. His medical chart made numerous references to his refusal to accept blood infusions. Campbell did not receive any blood or blood products during surgery, but after surgery, his doctor ordered the use of a Gish Orthoinfuser (Gish) to collect blood from the surgical site. The doctor decided to use the Gish, as opposed to other devices, because the Gish provided a reservoir where blood can be stored for disposal or possible reinfusion, and it provided the best suction. Further, use of the Gish would preserve Campbell's ability to change his mind about receiving his own blood should it become medically necessary.

The nurse anesthetist who took Campbell to the postanesthesia care unit (PACU) stated in an affidavit that, at the request of the doctor, she told the PACU nurses that Campbell was a Jehovah's Witness and was not to be reinfused. The PACU nurses, however, denied receiving this information. The nurse who started the reinfusion admitted in her deposition that she did not look at Campbell's chart for an order to start the reinfusion, as usually required. She based her decision to reinfuse on the fact that the Gish, with its blood reservoir, suggested that reinfusion was to be done. There was also some evidence that the nurse did not read the chart because the doctor took it with him, and that there might have been a mix-up between Campbell's chart and another patient's. Campbell was reinfused with his own blood for just under an hour.

Campbell sued the doctor and the hospital. He originally indicated that he would have an expert witness on the doctor's standard of care, but that witness was withdrawn. The doctor, while admitting that an error had been made by someone in this case, moved for summary judgment on the ground that, without expert testimony, Campbell could not make a prima facie showing on any of his theories of recovery. The hospital filed a motion to preclude the plaintiff's medical evidence. The trial court concluded that the plaintiff lacked the necessary expert witnesses to establish liability or damages, and the suit was dismissed.

The appellate court noted that whether reinfusion was called for, from a medical perspective, or whether the infusion was properly done would obviously require testimony by a medical expert. But the evidence concerning the lack of communication between the doctor and the PACU nurses, the possible mix-up in patient charts, and the doctor's admission of error were capable of being resolved by a fact finder without the testimony of experts. It found the lower court erred in concluding otherwise and in granting summary judgment against the plaintiff on that basis.