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In Vizzoni v. B.M.D, the Superior Court of New Jersey, Appellate Division, considered whether a psychiatrist was liable to a third-party bicyclist for failing to warn his patient about the adverse side effects of medications he had prescribed when the patient later hit and injured the bicyclist while driving her car. The court declined to extend a duty of care to include warning a patient of the adverse side effects of medications for the benefit of third parties. (June 24, 2019)

In Endo Surgi Center v. NJM Insurance Group, the Superior Court of New Jersey, Appellate Division, addressed whether ambulatory surgical centers (ASC) are entitled to reimbursement for CPT code 62290 procedures from an insured’s automobile insurance carrier. The court held that ASCs are not entitled to reimbursement for procedures they perform when those procedures are not listed as reimbursable when performed at an ASC on the PIP[1] medical fee schedule. The court clarified that although CPT Code 62290 was listed in the Fee Schedule, the schedule did not include a reimbursement amount for an ASC, which indicates that the policy did not permit reimbursement when performed separately at an ASC. (June 19, 2019)

In Azar v. Allina Health Services, the United States Supreme Court held that because the Department of Health and Human Services (DHHS) neglected its statutory notice-and-comment obligations without any lawful excuse when it revealed a new policy that dramatically – and retroactively – reduced Medicare payments to hospitals serving low-income patients, its policy must be vacated. This case centered on the inclusion of Medicare Part C beneficiaries in hospitals’ Medicare fraction calculation, which determines the amount of incentivization payments to which the hospitals are entitled for providing services to low income beneficiaries. The inclusion of the higher income Medicare Part C beneficiaries was found to drastically reduce the Medicare payments. In 2014, the DHHS posted on its website a spreadsheet announcing the 2012 Medicare fractions for 3,500 hospitals nationwide, noting the inclusion of Part C beneficiaries in its calculations. The Court found that the DHHS had not provided the public with advance notice and a chance to comment pursuant to the requirements set forth by Congress for Medicare. (June 3, 2019)

In Association of NJ Chiropractors v. Horizon Healthcare Services, Inc., the Superior Court of New Jersey, Appellate Division considered a case in which a trade association and a chiropractor sued Horizon to substantially increase the number of chiropractors in Tier 1 in Horizon’s Omnia plan, claiming that Horizon’s tiering decisions violated the state Healthcare Quality Act, N.J.S.A. § 17B:27-51.1 (relating to chiropractor reimbursement), and that the state’s opioid crises required the court to create a private right of action to challenge Horizon’s tiering decisions. The Appellate Division dismissed all challenges finding that none of the cited statutes or regulations created a private a right of action because the laws were intended to protect consumers, not chiropractors. The court found that the plaintiffs’ novel argument concerning New Jersey’s opioid crises was waived because it was presented for the first time on appeal. (June 5, 2019)

White and Williams attorneys Mike Kassak, Andy Hamelsky, Ed Koch, Luke Repici, Mark Paladino, Zaara Nazir and Mike Jervis successfully represented Horizon in this case.

In Krappa v. Community Medical Center, the Superior Court of Pennsylvania addressed whether the Peer Review Protection Act (PRPA) protects from discovery physician performance evaluation materials maintained by a hospital’s credentialing committee. The court held that, pursuant to the Pennsylvania Supreme Court’s decision in Reginelli v. Boggs, a credentialing committee does not qualify as a “review committee” under the PRPA and, therefore, all of the credentialing committee’s files are subject to discovery. (May 23, 2019)

In Hassel v. Franzi, the Superior Court of Pennsylvania addressed whether the defendant’s introduction of testimony from two different expert doctors was excessively cumulative. The court held that the testimony of a general clinical cardiovascular specialist and an internist regarding the standard of care was corroborative rather than cumulative because each of the experts offered opinions from different specialties and approached the standard of care from different clinical perspectives, yet each reached the same conclusion regarding the appropriateness of the treatment that was chosen for the plaintiff. (April 8, 2019)

In Verrastro v. Bayhospitalists, LLC, the Supreme Court of Delaware addressed the issue of whether the dismissal of a medical negligence claim against two physicians on statute of limitations grounds barred the prosecution of a timely filed respondeat superior claim against their employer. The court held that the mere fact the plaintiff failed to sue the employee in a timely manner did not immunize the employer. (April 8, 2019)

In Wright v. Residence Inn by Marriott, Inc., the Superior Court of Pennsylvania addressed whether the trial court erred in precluding the plaintiff’s medical expert as unqualified thus entitling the plaintiff to a new trial on the issue of damages. In reversing, the court held that despite not having specific training and knowledge in orthopedic surgery, the plaintiff’s medical expert, an internist, was qualified to testify as to the plaintiff’s shoulder injury because he “possessed a reasonable pretension to specialized knowledge” regarding the plaintiff’s injuries “sufficient to assist the trier of fact.” Thus, the plaintiff was entitled to a new trial on damages because his expert was improperly precluded by the trial court, which resulted in significant prejudice to the plaintiff. (April 9, 2019)

In Wodzenski v. Eastern Long Island Hospital, the Supreme Court of New York Appellate Division, Second Department, addressed the use of experts to establish that a medical provider did not depart from good and accepted standards of medical practice or that any departure was not a proximate cause of the patient’s injuries. The court held that expert testimony that merely recounted the treatment rendered and opined that such treatment did not depart from good and accepted medical practice was insufficient to grant the defendants’ motion for summary judgment. (March 13, 2019)

In Sensenich v. Morcos, the Superior Court of Pennsylvania examined whether it was erroneous to charge a jury with the “two schools of thought” doctrine in a medical malpractice case involving allegedly unnecessary cardiac stenting procedures. This doctrine states that “where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.” The court found that the two schools of thought involving two different stenting techniques had nothing to do with whether the hospital had notice over the unnecessary stenting procedures. However, the trial court had properly instructed the jury that the doctrine had no application to the unnecessary stenting claims being considered by the jury and any error was harmless. (February 27, 2019)

In Wong v. Broughton, the Supreme Court of Delaware addressed whether an expert witness improperly based his opinions on a res ipsa loquitor theory. That is, the expert testified that the physician breached the standard of care solely because the patient sustained a permanent injury. The court held that the opinion was admissible because multiple, reliable medical sources support the expert’s opinion. In so holding, the court noted that the expert appropriately qualified why he disagreed with the results of a study cited by the defense, and further stated that his opinions were based upon the medical records, eyewitness accounts and other information an expert would ordinarily rely upon in his field. The court also held that statistical data used to demonstrate the rarity of the injury suffered was not improper evidence that invited an inference of an inevitable result, and therefore, was admissible. (February 4, 2019)

In New Jersey Manufacturers Insurance Company v. Specialty Surgical Center of North Brunswick, the Superior Court of New Jersey, Appellate Division addressed whether ambulatory surgical centers (ASC) are entitled to reimbursement for CPT code 63030 procedures from an insured’s automobile insurance carrier. The court affirmed the law division decision holding that ASCs are not entitled to reimbursement for procedures they perform when those procedures are not “listed in the ASC columns in the Fee Schedule, as originally proposed” by CPT code 63030. (January 29, 2019)

In Montgomery Hospital and Medical Center v. Bureau of Medical Care Availability and Reduction of Error Fund, the Commonwealth Court of Pennsylvania considered an action in which a patient sued a hospital for malpractice because a surgical sponge was left inside the patient. Under the Medical Care Availability and Reduction of Error (MCARE) Act, the MCARE fund provides coverage for healthcare providers when a patient asserts a claim more than four years after an alleged negligent act, but within the statute of limitations. While the underlying surgery occurred more than four years prior to the claim by the patient, the patient had received multiple treatments and consultations by radiologists who the MCARE fund argued were agents of the hospital. The court determined that the MCARE fund could decline coverage where an apparent agency relationship existed between the hospital and the radiologists in order to show “ongoing” care by the healthcare provider. The MCARE fund could therefore assert that the ongoing care removed the underlying medical malpractice action from the four-year window. (January 4, 2019)

In Leight v. University of Pittsburgh, the Superior Court of Pennsylvania addressed the scope of the duty, if any, that a treating physician owes to a third party injured by the physician’s patient under Pennsylvania’s Mental Health Procedures Act (MHPA). The court found that the MHPA applies only to treatment of involuntary inpatients and outpatients and voluntary inpatients. The “mere thought or consideration” of initiating an involuntary examination during a voluntary outpatient examination, according to the court, falls outside the bounds of the MHPA. (December 31, 2018)

In Global Liberty Insurance Company of New York v. Spine Consultation NJ, P.C., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a recent amendment to Department of Financial Services Regulations § 68.6(b)(1) applies retroactively. The court held that the amendment, which addresses insurer reimbursement for a qualified professional health service performed outside of New York State, applies prospectively only, noting that the law is settled that retroactivity is not imputed where not expressly stated. (December 20, 2018)

In Gilmore v. Holland, the United States Court of Appeals for the Third Circuit addressed whether an inpatient who develops an emergency condition while at the hospital can state a viable claim under Emergency Medical Treatment and Active Labor Act (EMTALA). The court found that EMTALA covered only individuals who came to the hospital with an emergency condition and not those individuals who developed the emergency condition while already a patient. (December 12, 2018) White and Williams attorneys Kevin Cottone and Marc Penchansky secured this favorable result for our client in this appeal.

In Nicolaou v. Martin, the Supreme Court of Pennsylvania held that whether the statutue of limitations was tolled by the discovery rule in a medical malpractice case was a question of fact for the jury to decide. In reaching its decision, the court noted that the plaintiff’s inability to pay for diagnostic testing is a factor the jury may consider in determining whether the plaintiff exercised reasonable diligence in discovering her injury and its cause. (October 17, 2018)

In Billups v. Milton S. Hershey Medical Center, the United States Court of Appeals for the Third Circuit addressed whether parents established civil rights violations arising from an investigation by three physicians into whether their child exhibited signs of physical abuse. While the plaintiff-parents alleged that several statements contained in the medical records were intentional misrepresentations, the court held that these statements were not false. Moreover, even if the statements were false, the court found no evidence that the physicians acted with deliberate indifference to a resulting harm or consciously disregarded a great risk of serious harm in concluding that the child had been abused. White and Williams attorneys, Thomas Goutman, Kim Kocher, and Geoffrey Sasso, secured this favorable result for our client. (September 12, 2018)

In Silver v. Omnicare, Inc., the United States Court of Appeals for the Third Circuit addressed whether a qui tam action, alleging fraudulent “swapping” of Medicare patients by an institutional pharmacy serving nursing homes, was barred by the False Claims Act which disallows claims based on allegations already known to the public. The court concluded that public sources disclosing the general risk of swapping in the nursing home industry did not bar the specific allegations which depended on non-public information that the pharmacy was actually engaging in fraud. (September 5, 2018)

In Cowley v. Virtua Health System, the Superior Court of New Jersey, Appellate Division, addressed whether a medical malpractice complaint was properly dismissed for the plaintiff’s failure to serve an affidavit of merit. The court held that, because expert testimony was not needed to establish whether the defendant breached the standard of care, the common knowledge exception exempted the plaintiff from the affidavit of merit requirement. (September 6, 2018)

In Norman v. All About Women, P.A., the Supreme Court of Delaware addressed the admissibility of expert testimony under Daubert and D.R.E. 702. The court held that the Daubert factor, which addresses whether the expert’s opinion is based upon information reasonably relied upon by experts in the particular field, does not require the opinion to be based upon medical literature or peer-reviewed publications, or some other source that corroborates the expert’s analysis. The court held that an opinion by a doctor “based on his own knowledge” may be admissible. (August 21, 2018)

In Markham v. Wolf, the Supreme Court of Pennsylvania addressed whether the Governor’s Executive Order 2015-05 concerning home healthcare services constitutes an impermissible exercise of gubernatorial authority in violation of the separation of powers doctrine. The court held that the Governor did not exceed his constitutional powers because the entire process set forth in the order is voluntary, non-binding, nonexclusive, and unenforceable. (August 21, 2018)

In Phelps v. Dr. Joseph T. West, the Supreme Court of Delaware held that the medical malpractice litigation defendants did not violate the expert disclosure requirements of Superior Court Rules 16(e) and 26(e) ahead of trial. The plaintiffs, who retained a testifying expert on the issue of informed patient consent, asserted that defendants failed to explicitly disclose the defense rebuttal expert’s testimony on the same topic. In a close call, the Supreme Court rejected the argument that the lower courts abused their discretion and violated the spirit of the procedural rules. The defense expert’s existing disclosures and deposition testimony provided the plaintiffs sufficient notice as to the sort of expert opinion that the witness would provide at trial and complied with the letter of the procedural rules. (August 16, 2018)

In Brugaletta v. Garcia, D.O., the Supreme Court of New Jersey addressed a discovery dispute under the Patient Safety Act in which the plaintiff sought discovery of incident reports related to their care at the defendant hospital. The court held while a trial court may properly conduct in camera review of facts underlying what a hospital concluded was not a reportable Serious Preventable Adverse Event (SPAE), a trial court cannot declare a SPAE had occurred and cannot order the production of related incident reports based on that finding. (July 25, 2018)

In National Institute of Family and Life Advocates v. Becerra, the United States Supreme Court granted a preliminary injunction barring application of a California law which required crisis pregnancy centers (pro-life centers that offer pregnancy-related services) to notify women of the availability of free or low cost abortions in California. The Court held that the law likely violates the First Amendment of the United States Constitution because it constitutes a “content-based regulation” which effectively compels anti-abortion advocates to advertise the availability of abortions. The Court further held that the law should be subject to strict scrutiny, requiring the government to prove that it is narrowly tailored to serve a compelling state interest, because it does not implicate purely “commercial speech” insofar as: (1) it does more than require professionals to disclose factual, noncontroversial information; and (2) the law is not primarily a professional conduct regulation that only incidentally involves speech. (June 26, 2018)

In Davis v. Center Management Group, LLC, the Superior Court of Pennsylvania addressed whether a trial court can review the applicability of an arbitration clause in a nursing home admission agreement at the preliminary objections stage. The court held the determination of whether a valid agreement to arbitrate exists should be made at the preliminary objections stage. (June 28, 2018)

In Walters v. UPMC Presbyterian Shadyside, the Supreme Court of Pennsylvania addressed the extent of the duty owed by a hospital and a healthcare staffing agency to prevent a terminated employee from causing harm to patients at another healthcare facility. The court found that, where the healthcare provider was required under federal law to report the conduct of the terminated employee, that provider owed a general duty to the public to ensure compliance with those reporting requirements. (June 19, 2018)

In Gillispie v. RegionalCare Hospital Partners Inc., the United States Court of Appeals for the Third Circuit addressed whether it was proper to dismiss a claim brought under the “whistleblower” protection provision of the Emergency Medical Treatment and Active Labor Act (EMTALA), where an employee was terminated after she disagreed with her employer’s decision not to report a potential violation of the EMTALA. The court held that to resolve whistleblower claims under the EMTALA, absent direct evidence of retaliation, courts should apply the burden-shifting scheme used in Title VII disparate-treatment claims. The court held that the EMTALA’s whistleblower provision protects employees who inform personnel in a covered facility of a possible EMTALA violation even where the employee does not also inform any governmental or regulatory agency. The employee-nurse was not protected under the whistleblower provision because she did not make a report; rather, she disagreed with a decision regarding reporting. (June 12, 2018)

In Tong-Summerford v. Abington Memorial Hospital, the Superior Court of Pennsylvania addressed whether a hospital waived its appellate issue by failing to specify the grounds of its evidentiary objection at trial. At trial and in its subsequent court-mandated concise statement of errors complained of on appeal, the hospital generally objected to the admission of an adverse event notification letter. For the first time in its appellate brief, the hospital objected to the letter’s admission because the Medical Care and Reduction of Error (MCARE) Act prohibited the letters’ use as an admission of liability. The court found the MCARE-prohibition argument waived because it was not raised before appellate briefing. (June 13, 2018)

In Defina v. Go Ahead and Jump, 1, LLC, the Superior Court of New Jersey, Appellate Division, addressed whether the recent US Supreme Court ruling in Kindred Nursing Centers Ltd. Partnership v. Clark abrogated that holding in Atalese v. US Legal Services Group., L.P. In Atalese, the Supreme Court of New Jersey held that an arbitration clause must contain a “clear and unambiguous statement that the person signing the Agreement is waiving rights to sue or go to court to secure relief.” The court held that Kindred Nursing did not abrogate Atalese, stating that Atalese explicitly recognized that “[t]he FAA requires courts to ‘place arbitration agreements on an equal footing with other contracts and enforce them according to their terms,’” which is consistent with the holding in Kindred Nursing. (June 5, 2018)

In Correa v. Schoeck, the Supreme Judicial Court of Massachusetts held that a pharmacy had a limited duty to take reasonable steps to notify both a patient and her prescribing physician of the need for prior authorization each time the patient tried to fill a prescription, but was not required to follow-up on its own or ensure that the prescribing physician received the notice of completed prior authorization. (June 7, 2018)

In Trigg v. Children’s Hospital of Pittsburgh of UPMC, the Superior Court of Pennsylvania held that the de novo standard of review, instead of the palpable-error deference standard, applied to its review of the trial court’s denial of a medical malpractice plaintiff’s motion to strike for cause potential jurors, where the trial judge failed to observe voir dire in person. The court held that the palpable-error standard applies to cases where the trial judge observed the potential jurors in voir dire, because the judge could make observations that could not be captured in the cold record before an appellate court. However, where the trial court based his rulings on the challenges for cause solely upon reading the voir dire transcripts, the court analogized the case to contract interpretation cases which apply a de novo standard of review and a plenary scope of review. (May 14, 2018)

In Murray v. Janssen Pharmaceuticals, Inc., the Superior Court of Pennsylvania addressed whether expert testimony was sufficient to support a causal connection between a particular drug and a patient’s condition where no treating physician had ever diagnosed the patient with the condition. The court determined that, because the expert relied on the patient’s school, medical, pharmacy records, and scans to conclude that the patient suffered from the condition, the evidence was sufficient. (February 20, 2018)

In Lohnas v. Luzi, the New York State Court of Appeals addressed what test to apply to determine whether the continuous treatment doctrine should toll the statute of limitations. A patient brought this lawsuit in 2008, alleging negligent performance of a surgery in 1999. The patient had also had a 30-month gap in treatment. The court applied the established summary judgment standard to the question of whether there was ongoing treatment of a medical condition, and found that it was for a jury to decide whether the continuous treatment doctrine applied because issues of fact existed. (February 15, 2018)

In K.K. v. Division of Medical Assistance and Health Services and Somerset County Board of Social Services, the Superior Court of New Jersey, Appellate Division, addressed appellant’s denial of Medicaid coverage because he had not been a legal permanent resident for five years or more. The court held that a lapse in continuous presence is permitted, so long as an individual has already obtained qualified alien status. (February 14, 2018)

In Moody v. Lehigh Valley Hospital, the Superior Court of Pennsylvania considered the propriety of a transfer in venue based on forum non conveniens in a medical practice action when the action concerned care provided in both the transferring and transferred venue. The court found that the transfer was inappropriate. The court held that transfer on forum non conveniens grounds is proper only if the defendant proves that the chosen forum is oppressive; therefore, the fact that the transfer would not be oppressive to the plaintiffs is irrelevant. (January 18, 2018)

In Newton Medical Center v. D.B., the Superior Court of New Jersey, Appellate Division, addressed whether a patient who requires emergent psychiatric treatment, resulting in his involuntary commitment to a hospital, should be treated differently for charity care purposes than a patient who suffers a physical injury or illness. The issue arose from the hospital’s attempt to recover payment from an indigent mental health patient. The court held that when a mental health patient is admitted to a hospital on an emergent basis through the referral of a psychiatric emergency screening service, the provisions of the charity care regulations dealing with emergency room admissions apply. Therefore, because plaintiff failed to contact defendant by phone at least twice, and schedule an in-person interview or send a social worker to his address in order to obtain the necessary information to process his charity care application, plaintiff was barred from recovering from defendant. (January 17, 2018)

In Rutyna v. Schweers, the Superior Court of Pennsylvania determined that the trial court abused its discretion in denying the plaintiffs' continuance request in a legal malpractice claim. Plaintiffs requested a continuance of the underlying medical malpractice case after they discovered that their expert witness signed a consent judgment in another case and agreed to not testify against the medical care provider at issue. The court held that the continuance should have been granted under the totality of the circumstances since plaintiffs were not at fault for their witness's preclusion from testifying, the case was complex, an additional seven months would have been negligible to this already protracted case, and the denial caused irreversible prejudice to plaintiffs. (January 4, 2018)

In Del Ciotto v. The Pennsylvania Hospital of the University of Penn Health System, the Superior Court of Pennsylvania addressed whether a wrongful death claim is subject to arbitration where the decedent’s son signed the arbitration agreement on the decedent’s behalf. The court held that a wrongful death claim is subject to arbitration if the wrongful death claimant signs the arbitration agreement. The court clarified, however, that, when the claimant  signs only in a representative capacity, and not in an individual capacity, the claimant is bound only as the decedent’s representative and not with respect to his/her individual rights. (December 27, 2017)

In Dubose v. Quinlan, the Supreme Court of Pennsylvania addressed the statute of limitations for survival actions under the Medical Care Availability and Reduction of Error Act (MCARE). Based on the plain language in Section 513 of MCARE, the court held that a survival action in a medical professional liability case resulting in death accrues at the time of death, not at the time of decedent’s injury. (November 22, 2017)

In Shiflett v. Lehigh Valley Health Network, Inc., the Superior Court of Pennsylvania addressed whether, in a case involving a fall from a hospital bed, new allegations regarding post-fall medical treatment asserted after the statute of limitations were time barred. The court also addressed whether a verdict is inconsistent where the jury finds the nurse alleged to have caused the fall was not negligent but also finds that the hospital was liable for corporate negligence for failure to properly train the nurse. The court held that the new allegations were time barred because they relied on different operative facts than those regarding the alleged negligence that caused the fallThe court also found that the verdict was not inconsistent because the jury’s finding that the nurse was not negligent did not preclude a finding that the injuries were caused by the hospital’s corporate negligence. (November 9, 2017)

In UnitedHealthcare of Pennsylvania, Inc. v. Department of Human Services, the Commonwealth Court of Pennsylvania addressed whether the Department’s denial of a health insurance carrier’s bid to implement a community managed care program under the Commonwealth Procurement Code was arbitrary and capricious and whether it violated the carrier’s due process rights. The court held that the Department’s decision was not arbitrary and capricious and that, because the carrier did not have a right to the contract, its due process rights were not violated. (October 4, 2017)

In James v. Albert Einstein Medical Center, the Superior Court of Pennsylvania addressed the issue of whether, in a medical malpractice suit commenced by a decedent’s estate, the mother of the deceased was properly precluded from testifying about her pain and suffering from the loss of her son. The court held that although the decedent’s mother was a potential beneficiary under the Wrongful Death Statute, she was not entitled to damages for the loss of consortium with regard to her son because it is well-settled that Pennsylvania does not recognize a right of filial consortium. As such, the mother was properly precluded from testifying about her pain and suffering. 

Donald Ladd, Kim Kocher and Edward Beitz successfully represented Dr. Jeffrey Greenspan in this case. (September 12, 2017)

In Lewis v. Rutkovsky, the New York Supreme Court, Appellate Division, 1st Department, addressed how the statute of limitations for medical malpractice actions is affected by allegations of continuous treatment. The court held that the continuous treatment doctrine tolls the statute of limitations for a medical malpractice action when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint. The court also found that such continuous treatment is not required to be regular and patient appointments need not be limited to the specific treatment of the underlying condition that is the basis of the complaint for the court to find continuous treatment was provided. (August 29, 2017)

In Schiller v. Sunharbor Acquisition I, LLC, the Supreme Court of New York, Appellate Division, 2d Department, addressed whether the defendant nursing home’s failure to respond to the plaintiff’s demands for medical records constituted willful and contumacious conduct warranting dismissal of the nursing home’s answer under CPLR 3126. The court found that the nursing home defendant’s repeated failure to produce records, over four years and despite numerous court orders directing it to do so, constituted willful and contumacious conduct. (July 26, 2017)

In Wentzel v. Cammarano, the Superior Court of Pennsylvania considered whether venue was proper in Philadelphia County in a medical malpractice action involving a physician’s failure to timely transmit her report interpreting a diagnostic study to the plaintiff’s treating physician. Although the interpreting physician was in Philadelphia, the patient was being treated in Berks County. The court determined that the physician in Philadelphia was expected to interpret the report and direct the plaintiff’s care. Accordingly, the interpretation and transmission of the time-sensitive report constituted the furnishing of healthcare services, making venue proper in Philadelphia. (July 19, 2017)

In Seels v. Tenet Health System Hahnemann, LLC, the Superior Court of Pennsylvania addressed admissibility of medical consent forms in a medical malpractice jury trial. The court held that evidence about the risks of surgical procedures, including those on informed consent forms, may be relevant to the standard of care or to show that the patient knowingly refused life-saving treatment and thus such forms are admissible. (July 18, 2017)

In Crespo v. Hughes, the Superior Court of Pennsylvania addressed whether a treating physician who had not been identified as an expert could give causation opinions in a medical malpractice case. The court held that because the treating physician's opinions were formed at the time of treatment and not in anticipation of litigation, they were admissible. (July 18, 2017)

In Shinal v. Toms, the Supreme Court of Pennsylvania, Middle District addressed whether a surgeon may discharge his/her duty to obtain a patient’s informed consent through a qualified subordinate. The court held that a physician’s duty to provide information to a patient sufficient to obtain her informed consent is non-delegable. The court also addressed whether the plaintiffs were entitled to strike prospective jurors for cause based upon their familial, situational, or financial relationship with the defendant’s employer. The court held that an indirect relationship with an employer that has an interest in a party does not, standing alone, warrant a presumption of prejudice. (June 20, 2017)

In Mitchell v. Shikora, the Superior Court of Pennsylvania considered whether evidence of “known risks and complications” of a surgical procedure was admissible in a medical malpractice case which did not involve informed consent-related claims. The court held that unless evidence of the general risks and complications of a surgical procedure is probative of the applicable standard of care, such evidence must be excluded as overly prejudicial to the plaintiff. (May 5, 2017)

In Greenberg v. McGraw, the Superior Court of Pennsylvania held that, because the State Board of Medicine performs discretionary, quasi-judicial functions, statements made to a State Board of Medicine investigator were protected by judicial privilege and could not form the basis of claims for defamation or intentional infliction of emotional distress. (May 5, 2017)

In Tillery v. The Children’s Hospital of Philadelphia, the Superior Court of Pennsylvania addressed whether a healthcare provider was entitled to a “two schools of thought” jury instruction in a case involving an alleged failure to diagnose. The court held that, while the doctrine shields physicians who have followed a prescribed treatment or procedure that has been accepted by medical experts even though other medical experts advocate an alternative approach, the instruction is inapplicable to cases in which the issue is a defendant’s failure to diagnose. (February 28, 2017)

In Palepu v. Bondi, the Superior Court of Pennsylvania addressed whether the Peer Review Protection Act immunizes a physician, who allegedly provided a false report to a Peer Review Committee, from a defamation action. The court held that, by the terms of the Act, the physician is immune from liability unless he deliberately provided false information to the committee. Because the complainant admittedly had no evidence that the physician falsified his statements to the committee, the court dismissed the suit. In reaching its decision, the court assumed, without discussion, that the subject matter of the report, concerning a disparaging age-related comment made by a physician to a nurse, fell within the scope of Peer Review protection. (February 14, 2017)

In Brugaletta v. Garcia, D.O., the Superior Court of New Jersey, Appellate Division, addressed whether a hospital was still entitled to assert the self-critical analysis privilege for internal documents when it failed to report a serious preventable adverse event (SPAE). The court found that the privilege did not depend on compliance with the requirement to report an SPAE, and therefore the hospital could not be compelled to disclose the self-critical analysis. (February 6, 2017)

In Petersen v. Kindred Healthcare, Inc., the Superior Court of Pennsylvania considered whether a nursing care facility’s arbitration agreement, signed by the daughter of a patient pursuant to a power of attorney (POA), was enforceable. The court determined that the patient’s daughter lacked authority to execute the arbitration agreement, because the POA clearly appointed the daughter as POA only in the event that another daughter was unwilling or unable to act as such. There was nothing in the record to suggest that the first daughter was unwilling or unable to act, and there was no evidence that the nursing care facility attempted to make that determination. Therefore, the court held that the arbitration agreement was unenforceable, because the daughter lacked authority to execute the agreement on the patient’s behalf. (February 1, 2017)

In Cardinal v. Kindred Healthcare Inc., the Superior Court of Pennsylvania addressed the enforceability of an arbitration agreement between a nursing home and a resident who was described as “alert but with confusion.” The court held that there was not clear, precise and convincing evidence to support the determination that the resident lacked capacity to enter into the arbitration agreement. The court further found the arbitration agreement was neither procedurally nor substantively unconscionable, and in light of the liberal policy favoring arbitration, the court referred the matter to arbitration. (January 27, 2017)

In Martin v. Holy Spirit Hospital, the Superior Court of Pennsylvania considered the bounds of the immunity provisions of the Mental Health Procedures Act (MHPA), which provides limited immunity to those individuals and institutions that provide treatment to the mentally ill. The court held that even though the patient had not yet seen a physician or psychiatrist, she had been seen by the nursing staff which was enough to find that the hospital was treating the patient and that the immunity provisions apply. The court permitted the case to move forward to determine whether the hospital acted grossly negligent, which would defeat immunity. (January 17, 2017)

In Reddy v. Foster, the United States Court of Appeals for the First Circuit held that prospective protestors at reproductive health facilities did not have standing to sue regarding the constitutionality of a law which permits those facilities to demarcate a “no protest” zone (N.H. Rev. Stat. Ann. §§ 132:37–132:40) where no such zones had in fact been created or enforced in the state. (January 11, 2017)

In Holloway v. United States of America, the United States Court of Appeals for the First Circuit held that an injured patient at a federally funded healthcare facility failed to include a sum certain demand in his administrative claim for damages and thus waived his rights under the Federal Tort Claims Act. (January 11, 2017)

In Burns v. Sudhir Goyal, Rakesh Patel, Suffolk Heart Group, LLP, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a primary care physician had assumed a duty to care for a decedent’s heart issues where the decedent’s heart issues had been separately treated by a cardiologist. The court held that, while “physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient.” Finding that the primary care physician had submitted evidence demonstrating that he had played no role in treating the decedent’s heart condition, the court dismissed the claims against the physician. (December 28, 2016)

In Rice v. City of Buffalo, Buffalo Fire Department, the New York Supreme Court, Appellate Division, 4th Department, addressed whether the correct standard for assessing liability when an emergency vehicle passing through a red light strikes a car in the intersection is one of ordinary negligence or one of reckless disregard for the safety of others. The court held that the driver of an emergency vehicle involved in an emergency operation may be privileged to pass through a red light and, thus, subject only to the “reckless disregard” standard, as long as the driver gave “an audible warning as the emergency vehicle approached and entered the intersection against a red signal, as required by statute. (December 23, 2016)

In Smith v. Mahoney & Richards, the Supreme Court of Delaware addressed whether the collateral source rule should apply when Medicaid pays for an injured party’s medical expenses. The Court held that the collateral source rule cannot be used to increase an injured party’s recovery of past medical expenses beyond those actually paid by Medicaid. The amount paid by Medicaid is conclusive of the reasonable value of the injured party’s past medical services. However, future medical expenses are not subject to Medicaid reimbursement limits. (November 3, 2016)

In Liburd v. St. Joseph’s Medical Center, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an ambulance company was negligent in taking a boy who suffered cardiac arrest while playing basketball to the closest hospital, as opposed to a “preferable” hospital specializing in treating cardiac patients, and whether the doctors who ultimately treated the boy at the closer hospital, along with that hospital itself, were similarly negligent in failing to redirect the ambulance to the “preferable” hospital. The Court granted summary judgment for the ambulance company, doctors, and hospital, finding that the applicable protocol merely required transportation to the closest “appropriate” hospital, that evidence in the record supported a conclusion that the closer hospital was appropriate for cardiac patients, and that the doctors and hospital had not departed from accepted medical practice by failing to redirect the boy to the specialized hospital. (November 1, 2016)

In Maine Medical Center v. Burwell, the United States Court of Appeals for the First Circuit addressed whether a group of hospitals received excessive disproportionate share payments (DSH payments) under 42 U.S.C. § 1395ww(d)(5)(F)(i)(I) for fiscal years dating back as far as 1993. The court held that the hospitals had received substantial overpayments of the funds, and the hospitals’ defenses to repayment were unconvincing. (October 28, 2016)

In Brooks v. Lynch, the Supreme Court of Delaware addressed whether employees of a physician group in a prison system are obligated to provide cosmetic medical treatment to an inmate. The inmate sought ultraviolet radiation treatment for the skin condition vitiligo and filed a declaratory judgment action and a petition for writ of mandamus in order to compel the physician group to provide the treatment. The Court held that the prison’s internal grievance process satisfied the inmate’s right to be heard such that a declaratory judgment was inappropriate. The Court further held that a writ of mandamus was inappropriate because the physicians were not public officials and because prison authorities have wide discretion in making medical treatment allowances for inmates.

In Taylor v. Extendicare Health Facilities, Inc. d/b/a Havencrest Nursing Center, the Supreme Court of Pennsylvania addressed whether nursing home could bifurcate the wrongful death and survival actions, and compel arbitration of the survival claim pursuant to an executed arbitration agreement and Federal Arbitration Act (FAA). Specifically, the court examined the tension between the FAA, which provides that arbitration agreements shall be enforceable, and Pennsylvania Rule of Civil Procedure 213(e) which requires consolidation of wrongful death and survival actions. The court held that while Rule 213(e) was intended to promote judicial efficiency, the ADR Agreement must be followed pursuant to the Supreme Court’s FAA jurisprudence. (September 28, 2016)

In Miranda v. Riverdale Manor Home for Adults, the New York State Supreme Court, Appellate Division, First Department, addressed a plaintiff’s right to amend his complaint. Miranda sustained injuries after leaving the premises of Riverdale, an “open door” residential facility for disabled adults. Riverdale was classified as an adult home under 18 NYCRR 487.2(a), rather than a residential healthcare facility or nursing home subject to Article 28 of the Public Health Law, 18 NYCRR 485.2(a). Independent psychiatrists evaluated Miranda and found that Riverdale was a suitable residence for him despite its open-door policy. Therefore, the court held that Riverdale met its prima facie burden to show that they did not deviate from the appropriate standard of care. (September 8, 2016)

In Parr v. Rosenthal, the Supreme Judicial Court of Massachusetts addressed whether a jury should have been instructed on the “continuing treatment doctrine” where parents of a minor patient claimed that a doctor negligently performed a radio frequency ablation resulting in the amputation of their child’s leg. The court held that Massachusetts now recognizes the doctrine and thus a cause of action does not accrue for statute of limitation purposes in medical malpractice matters during the period that an allegedly negligent physician continues to treat the patient for the same or a related condition. The court also held that the continuing treatment exception terminates once a patient knows or reasonably should have known that the physician’s negligence was the cause of injury. (September 2, 2016)

In Cubano v. Sheehan, the Superior Court of Pennsylvania addressed whether a patient’s untimely appeal from an order granting medical providers’ motion for summary judgment should be quashed. In making its determination, the court considered the fact that the patient filed her appeal two days beyond the time allowed for appeal under Pa.R.A.P. 903(a), and did not identify any extraordinary circumstances that prevented a timely filing of the appeal. The court held that under Pa.R.A.P. 903(a) the patient’s appeal was untimely and the Superior Court was divested of jurisdiction, and therefore the appeal must be quashed. (August 29, 2016)

In Frey v. Potorski, the Superior Court of Pennsylvania held that the admission of a hematologist’s testimony under the Medical Care Availability and Reduction of Error Act (MCARE Act), regarding the standard of care of an interventional cardiologist was harmless error in light of the substantially similar testimony of another qualified expert regarding the same standard of care. (August 26, 2016)

In McCormick v. State of New Jersey, the Superior Court of New Jersey, Appellate Division, addressed whether an inmate claiming medical malpractice by a state prison’s medical staff can avoid the need to obtain an Affidavit of Merit, pursuant to N.J.S.A. 2A:53A-26 -29, by suing only the state and not the licensed professionals who provided the medical care. The court held that an Affidavit of Merit is still required when the plaintiff’s claim of vicarious liability hinges upon allegations of a deviation of professional standards of care by licensed persons acting on behalf of the named defendant. (August 25, 2016)

In Meehan v. Antonellis, the Supreme Court of New Jersey addressed whether, in an informed consent case involving injury from treatment for sleep apnea, an affidavit of merit submitted by a board-certified prosthodontist who specialized in sleep apnea against an orthodontist violated the like-qualified standard under the New Jersey Patients First Act. The court held that the standards imposed by the Patients First Act only apply to medical malpractice actions, and not actions against dentists, and that the affidavit of merit submitted satisfied the requirements of the New Jersey Affidavit of Merit statute. (August 9, 2016)

In Arsenault v. Bhattacharya, the Appeals Court of Massachusetts addressed whether dismissal is the appropriate remedy for failure, in a medical malpractice case, to send the required notice letter six months in advance of filing suit, as required by a Massachusetts statute that had been enacted with the purpose of reducing medical malpractice insurance premiums. The court concluded that dismissal was too severe a sanction for the failure to file the required letter where it would not serve the legislative purpose of the statute. (August 3, 2016)

In Castello v. Wohler, the Superior Court of New Jersey, Appellate Division, addressed qualifications for an expert issuing an affidavit of merit in medical negligence cases. The court held that where, through no fault of the plaintiff, a physician’s CV erroneously indicated that he was actively practicing medicine, and the error was not discovered until the completion of discovery, exceptional circumstances existed, allowing plaintiff to retain a new expert and serve a new affidavit of merit, even though the timeframe for doing so had expired. (June 20, 2016)

In Conn v. Rebustillo, the Superior Court of New Jersey, Appellate Division, addressed whether a hospital must produce in discovery a self-critical analysis report that it created and submitted to the Department of Health as required by New Jersey’s Patient Safety Act after a patient experienced a serious preventable adverse event. The court held that the Patient Safety Act grants a healthcare facility an absolute privilege to documents submitted to the Department of Health pursuant to a mandatory requirement. (May 4, 2016)

In Hineman v. Imber, the Supreme Court of Delaware addressed the admissibility of evidence of a plaintiff’s use of marijuana on the day of his purported injury and missed diagnosis in a claim for medical malpractice. The court held that evidence of plaintiff’s marijuana use is admissible as it is relevant to a plaintiff’s perception of injury. (April 28, 2016)

In Bernetich, Hatzell & Pascu, LLC v. Medical Records Online, Inc., the Superior Court of New Jersey, Appellate Division, held that a hospital’s medical records processor may not enforce a mandatory arbitration clause that it included in its invoice in response to a patient’s records request. The hospital, and the processor acting as the hospital’s agent, had a pre-existing legal duty under state law to provide the patient’s records. Performance of an undisputed legal duty is not consideration. Thus, the records requester’s alleged bargain to arbitrate any dispute regarding the invoice was unsupported by consideration and therefore unenforceable. (April 22, 2016)

In Price v. Catanzariti, the Superior Court of Pennsylvania addressed the required qualifications under the MCARE Act of an expert called to testify on standard of care in a medical malpractice action against a podiatrist. The plaintiff sought to present a board-certified orthopedic surgeon. The court held that a podiatrist is not a physician as the term is statutorily defined and, therefore, an expert need only have a reasonable pretension to specialized knowledge on the subject to qualify to testify. (March 30, 2016)

In Shinal v. Toms, the Supreme Court of Pennsylvania granted a motion for allowance of appeal to address whether: (1) prospective jurors could be stricken for cause based on close familial, situational, or financial relationships with the defendant’s employer when the claimed negligence occurred in the course and scope of the defendant’s employment; (2) a panel of the Superior Court was permitted to create new law and require counsel to request an additional preemptory challenge each time a cause challenge for a potential juror is denied in order to preserve the issue for appeal; and (3) a court in a lack-of-informed-consent case may charge the jury that information received from non-physician “qualified staff” at the hospital can be considered in deciding whether the surgeon obtained informed consent before surgery? (March 23, 2016)

In Long Island Care Center, Inc. v. Goodman, the New York Supreme Court, Appellate Division, 2d Department, held that a resident could not raise a violation of the federal Nursing Home Reform Act (“Act”) as a counterclaim because the Act does not create a private cause of action. While violation of the Act may be asserted as an affirmative defense, it does not provide for affirmative relief. (March 9, 2016)

In Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, the United States Supreme Court addressed whether an Employee Retirement Income Security Act (ERISA) plan administrator could recover on a lien for medical expenses paid, when the plan participant received a settlement but spent those funds on nontraceable items. The Court held that the enforcement of a lien is equitable for which the remedy is the enforcement of identifiable funds within the participant’s possession. Therefore, the Court held that the lien was unenforceable because the identifiable funds had already been spent on nontraceable items, and the plan administrator could not proceed against the plan participant’s general assets. (January 20, 2016)

In Sernovitz v. Dershaw, M.D., the Supreme Court of Pennsylvania considered the constitutionality of a Pennsylvania statutory provision precluding a professional negligence action based on a claim of “wrongful birth” or “wrongful life.” The court held that although the bill containing this provision appeared to violate the “single subject rule” of Article III of the Pennsylvania Constitution, the parents raising this constitutional challenge for purposes of asserting a professional negligence action for “wrongful life” against a doctor who allegedly misinformed them about the results of prenatal genetic testing, were nevertheless precluded from challenging the constitutionality of the statute on procedural grounds due to the fact that 22 years had passed since its enactment. (November 18, 2015)

In Atkins v. Beth Abraham Health Services, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an expert of an estate may opine on a new theory of the cause of death not raised in the complaint. The court held that the expert’s opinion that the nursing home resident’s death was due to the failure of the nursing home to perform frequent tests on resident’s blood sugar could not defeat the nursing home’s motion for summary judgment, because that theory was never properly pleaded by the resident’s estate. (November 17, 2015)

In Polett v. Public Communications Inc., the Supreme Court of Pennsylvania considered three issues: (1) whether an expired tolling agreement between the patient and physician was properly precluded from evidence; (2) whether the physician was properly permitted to give expert testimony on causation where the physician reached his causation opinion while treating plaintiff patient and before litigation was anticipated; and (3) whether the jury was properly instructed not to speculate about alternative causes of plaintiff patient’s injuries after defendant physician’s counsel had given his closing argument. The court held that (1) the tolling agreement between the patient and physician was properly barred from being admitted into evidence; (2) the physician was properly permitted to provide expert testimony under Pa.R.C.P. 4003.5;and (3) the jury was appropriately given a supplemental jury instruction regarding “no speculation.” (October 27, 2015)

In Wert v. Manorcare of Carlisle PA, LLC, the Supreme Court of Pennsylvania examined the enforceability of a long-term skilled nursing facility’s arbitration agreement signed by a patient. The court held that the provision at issue in the arbitration agreement, which provided that any claims or disputes shall be resolved in accordance with the National Arbitration Forum (NAF) Code of Procedure, was an integral and non-severable provision, despite the fact that the patient had not read the agreement. (October 27, 2015)

In Commonwealth of Pennsylvania Department of Public Welfare, v. Eiseman, the Supreme Court of Pennsylvania considered the extent of the public’s statutory right of access to discrete information regarding the implementation of the Medical Assistance/ Medicaid Program. Specifically, the court examined whether the PA Department of Public Welfare (DPW) was obligated to disclose records revealing the rates that the DPW paid to managed care organizations (MCOs) for dental services, and whether those records are public records. The court held that documents required to be submitted to DPW reflecting the MCO rates are “financial records” (a statutorily-defined subset of public records) under the Right-to-Know Law, and that the Uniform Trade Secrets Act does not protect financial records that contain MCO rates from disclosure. (October 27, 2015)

In Dubose v. Quinlan, the Superior Court of Pennsylvania reviewed the compensatory and punitive damages awarded to the decedent’s family in a wrongful death and survivor action against a nursing home and healthcare network. The court held that damages for wrongful death include the value of the decedent’s life to the family as well as expenses caused to the family by reason of the death. The court also found that punitive damages are appropriate where an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct. (October 23, 2015)

In Guctas v. Pessolano, the New York Supreme Court, Appellate Division, 2d Department, held that in an action sounding in medical malpractice, a physician moving for summary judgment must establish that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient’s injuries. Where the parties adduce conflicting medical expert opinions as to whether the physician departed from the standard of care, summary judgment is not appropriate. (October 7, 2015)

In K.H. v. Kumar, the Superior Court of Pennsylvania addressed whether a minor patient could assert a common law claim of medical malpractice against a physician for failure to report reasonable suspicions that the child is a victim of abuse as required under the Child Protective Services Law (CPLS). The court held that while the CPLS does not afford civil recourse, the physician’s duty was not limited by the law and if supported by competent expert testimony, minor plaintiff could set forth a claim that the physician breached the standard of care by not reporting suspected abuse. (August 25, 2015)

In Shinal v. Toms, the Superior Court of Pennsylvania addressed whether jurors employed by a hospital that was formerly a defendant should be stricken for cause, whether information provided by a physician’s assistant regarding surgery can be considered part of the informed consent process, and whether an informed consent form is admissible at trial when the patient concedes she signed the form. The court held that it was proper not to strike employees of the hospital because they did not have any direct relationship with any of the current parties. The court further held that information from a physician’s assistant should be considered part of the informed consent process and the informed consent form signed by the patient was admissible and relevant to the informed consent claim. (August 25, 2015)

In Geisinger Community Medical Center v. U.S. Department of Health and Human Services, the U.S. Court of Appeals for the Third Circuit addressed whether or not an agency regulation was lawful. Hospitals that are disadvantaged by their geographic location may reclassify to a different wage index area for certain Medicare reimbursement purposes by applying for redesignation to the Medicare Geographic Classification Review Board (Board). A separate statutory mechanism for obtaining a reclassification (Section 401) also exists. The Board issued a regulation that hospitals cannot obtain reclassification both through the Board as well as Section 401. The court held that the government must treat hospitals with Section 401 status like hospitals physically located in rural areas for purposes of reclassification. (July 23, 2015)

In Yocabet v. UPMC Presbyterian, the Superior Court of Pennsylvania addressed whether hospital board meeting minutes are protected from disclosure under either the attorney-client privilege or the peer review privilege when the meeting concerned review of an adverse incident. The court held that the attorney-client privilege can apply to a meeting of the governing board of an organization if its lawyers are present and the Board is seeking legal advice. The court also held that a board of directors of a professional health care provider can conduct peer review that is protected from disclosure. (June 5, 2015)

In Mazur v. Crane’s Mill Nursing Home, the Superior Court of New Jersey, Appellate Division, examined the procedural requirements for substantiating a motion to dismiss a medical malpractice plaintiff’s affidavit of merit. Specifically, the court addressed whether the defendant may rely upon an affidavit by the defendant’s attorney not based upon personal knowledge, but facts related to the attorney by the defendant. The court held that such affidavits constitute inadmissible hearsay and do not comply with New Jersey Court Rule 1:6.6. (June 11, 2015)

In Estate of Grieco v. Hans J. Schmidt, M.D., the Superior Court of New Jersey, Appellate Division, addressed whether the trial court properly barred witnesses from recounting what the decedent said her doctor’s staff told her in response to her complaints of chest pain following surgery because their testimony was untrustworthy. The Court held that the trial court could not properly determine that the witnesses testimony was untrustworthy, as required by N.J.R.E. 804(b)(6), without conducting a hearing pursuant to N.J.R.E. 104. (May 19, 2015)

In Washington v. Alpha-K Family Medical Practice, P.C., the New York Appellate Division, 2d Department, addressed waiver of privilege concerning a nonparty, minor’s medical records. The court held that the mother of the patient and nonparty sibling, whose records were sought, did not waive any privilege when she generally testified at a deposition about the “mere facts and incidents” of the nonparty sibling's medical history. (May 6, 2015)

In Smith v. Kobasa, the Supreme Court of Delaware addressed plaintiff’s untimely filing of the required affidavit of merit in a medical negligence case. Plaintiff filed her affidavit after the statutorily permissible single extension of time to file. The court held that there was no abuse of discretion in denying a second request for extension of time to file the affidavit, that pro se status does not excuse failure to comply with the law, and that the matter was properly dismissed for failure to timely file an affidavit of merit. (April 24, 2015)

In Estate of Denmark v. Williams, the Commonwealth Court of Pennsylvania addressed the viability of vicarious liability claims against a hospital when specific healthcare providers and their specific acts of negligence were not identified in the complaint. The court held that identifying the providers generally as “nursing staff, attending physicians, and other attending personnel” was sufficient to put the hospital on notice of the substance of the vicarious liability claims because the identities of those providers were either known to the hospital or could have been ascertained during discovery. The court also addressed direct corporate negligence theories against the hospital and held that allegations that a physician left an object in the patient’s body during surgery were adequate grounds to proceed on a corporate negligence theory due to potential violation of the hospital’s duty to retain only competent medical personnel. (April 28, 2015)

In Gallo v. Conemaugh Health System, the Superior Court of Pennsylvania addressed whether a defendant-physician’s drug and alcohol treatment records were discoverable in a medical malpractice action. The court held that the records were protected under The Public Health Service Act, 42 U.S.C. § 290ee-3, and that the physician’s denial in his Answer that he was intoxicated during the subject treatment did not open the door to such discovery. (April 17, 2015)

In Long v. Bureau of Professional and Occupational Affairs, the Commonwealth Court of Pennsylvania upheld the State Board of Podiatry’s denial of a podiatrist’s petition for reinstatement of his license. The podiatrist had been convicted of murdering his wife. The court rejected the podiatrist’s argument that he was only required to show that he was of good moral character at the time he applied for reinstatement. The court held that the pivotal issue was whether the podiatrist had the requisite moral character at the time of adjudication and it was found that he did not. (March 30, 2015)

In Taylor v. Extendicare, the Superior Court of Pennsylvania addressed whether co-executors who assert wrongful death and survival claims on behalf of a decedent must submit the survival claim against a defendant to binding arbitration when the decedent’s power of attorney executed an arbitration agreement with that defendant. The court held that the claims can be consolidated pursuant to Pa.R.C.P. 213(e), which is not pre-empted by the Federal Arbitration Act, and the Pennsylvania wrongful death statute, 42 Pa.C.S. § 8301(a). (April 2, 2015)

In Brady v. Urbas, the Supreme Court of Pennsylvania considered whether, in a medical malpractice action, a doctor may introduce evidence that the patient was informed of and acknowledged various risks of surgery, although the complaint does not assert a cause of action based on a lack of informed consent. The court held that in a trial that did not assert lack of informed consent, evidence that a patient had agreed to go forward with an operation in spite of the risks of which she was informed was irrelevant and should be excluded. (March 25, 2015)

In Parker v. Poole, the Superior Court of New Jersey, Appellate Division, addressed the admissibility of a physician’s deposition testimony as an admission by a party opponent under N.J.R.E. 802(b)(1).  The physician, testifying as a fact witness, argued that his deposition testimony was speculative as it related to the patient’s cause of death.  The court held that N.J.R.E. 701, which limits the subject matter of lay witnesses, does not bar speculative testimony otherwise admissible as an admission under N.J.R.E. 803(b)(1).  The court also held that a treating doctor testifying as a fact witness is permitted to testify about the cause of the patient’s injury, and that the admission of such testimony does not convert the physician into an expert witness. (March 17, 2015)

In Flenke v. Huntindgon, the Superior Court of Pennsylvania addressed the admissibility of excluded portions of a physician’s videotaped deposition testimony, offered by the plaintiff to demonstrate the physician’s potential biases and financial incentives as a defense expert witness.  The court held that the plaintiff offered substantial evidence from which the jury could infer the expert’s bias, including the expert’s admissions that insurance companies expected favorable reports and that he hoped to develop his business as an expert witness. (March 17, 2015)

In Escobar v. Universal Health Services, the United States Court of Appeals for the First Circuit addressed whether a clinic, in seeking government reimbursement for certain health care services it provided when it did not comply with regulations relating to certification and supervision of its staff, had made a false claim under the False Claims Act (FCA) by knowingly misrepresenting compliance with a material precondition of payment.  The court concluded that, where regulations made the clinical director explicitly responsible for hiring adequate staff, failure to do so gave rise to potential FCA liability. (March 17, 2015)

In Ventrice v. Ventrice, the Appeals Court of Massachusetts addressed whether a provision in a divorce judgment that the former spouses must engage in and pay for court-directed mediation before either may file any subsequent action in the Probate and Family Court complies with Article 11 of the Massachusetts Declaration of Rights of the Massachusetts Constitution, which guarantees the right of free access to the courts. The court concluded that a court order requiring the parties to bear the costs of mediation as a precondition to filing a court action is unconstitutional. (March 19, 2015)

In Ortiz v. Examworks, Inc., the Supreme Judicial Court of Massachusetts addressed whether the term “physician,” as it is used in the Massachusetts personal injury protection statute, refers only to licensed medical doctors or whether it also encompasses other licensed healthcare practitioners.  The court reasoned that the term cannot be limited to just licensed medical doctors because such a narrowing of the term from its usual and accepted meaning would render the statute unworkable.  Thus, because a liberal interpretation of “physician” is consistent with the purpose of the statute, the court held the term must also refer to appropriate licensed or registered healthcare practitioners including physical therapists. (March 3, 2015)

In Geneva College v. Secretary United States Dept. of Health and Human Services, the United States Court of Appeals for the Third Circuit addressed whether a provision in the Affordable Care Act requiring nonprofit religious organizations to provide their employees with insurance coverage for contraceptives violates the Religious Freedom Restoration Act (RFRA)The court held that the provision does not violate the RFRA because it does not place a substantial burden on the nonprofit religious organizations’ exercise of religion. (February 11, 2015)

In Deeds v. University of Pennsylvania,  the Superior Court of Pennsylvania addressed in a medical negligence action whether the issues of the collateral source rule and “tag team representation” warranted a new trial.  The court held that the patient was entitled to a new trial because the trial court violated the collateral source rule when it informed the jury that the patient’s medical needs were being attended to at little or no cost to patient’s guardian. The court also held that the trial court erred by permitting counsel for the Hospital and counsel for Trustees to “tag team” at trial while representing the same interest. (January 30, 2015)

In Moses v. Drake, the Supreme Court of Delaware addressed whether an expert’s use of the word “feasible” in his medical report was sufficient to constitute a “reasonable medical probability” or “reasonable medical certainty.”  The court held that while the expert did not have to state “reasonable medical probability” in his report, the expert must provide evidence to show that his report was based on a reasonable medical probability.  The court found that the plaintiff provided no affidavit, deposition or other evidence to assist the court in determining whether the expert’s use of the word “feasible” constituted a reasonable medical probability or certainty. (January 27, 2015)

In Mejia v. Ramos, the New York Supreme Court, Appellate Division, First Department, addressed a prima facie showing under the Insurance Law that crash victim did not suffer a serious injury.  The court held that the taxi driver made such a showing based on his submission of an orthopedist’s report finding a full range of motion and a pre-existing degenerative condition.  The court further rejected victim’s contention that defendant’s expert was required to review plaintiff’s actual MRI films or intra-operative photographs to make a prima facie showing that plaintiff’s injury was not a “serious injury.” (January 13, 2015)

In Bowman v. Department of Public Welfare, the Commonwealth Court of Pennsylvania addressed whether the Department of Public Welfare Bureau of Hearings and Appeals (Agency) had jurisdiction to consider the appeal of a resident of a licensed personal care home who was evicted from the residence.  The court held that the Agency only had appellate jurisdiction over a resident’s discharge from a long-term care nursing facility and not a personal care home.  Moreover, the Agency lacked jurisdiction to review the personal care home’s decision to evict the resident because that decision was made in the personal care home’s capacity as a private entity and not as an agent of the state. (January 9, 2015)

In Bair v. Manor Care of Elizabethtown, a nursing home sought to have the matter referred to arbitration pursuant to the terms of an arbitration agreement executed by patient’s representative upon admission to the facility.  The court addressed whether the nursing home accepted the subject arbitration agreement based on the lack of a signature of the nursing home representative on the agreement itself.  Generally, courts apply ordinary state law contract principles, “but in doing so, must give due regard to the federal policy favoring arbitration.”  While the absence of signatures is not fatal unless required by law or by the intent of the parties, the agreement herein expressly required the signatures of both parties. The court held that by failing to affix its signature, the nursing home did not consent to arbitrate, and absent mutual assent, there was no enforceable agreement to arbitrate. (January 15, 2015)

In Wilson Bermudez v. Kessler Institute for Rehab., the Superior Court of New Jersey, Appellate Division, addressed whether  claims can be asserted against a comprehensive rehabilitation hospital under the Nursing Home Responsibilities and Rights of Residents Act.  The court held that a comprehensive rehabilitation hospital is not a nursing home for purposes of the Nursing Home Responsibilities and Rights of Residents Act based on the legislative history which specifically limited the act to “nursing home[s].” (January 8, 2015)

In Washington v. Cranmer, the Appeals Court of Massachusetts addressed whether a patient claiming that her doctor did not comply with the applicable standard of care made a sufficient offer of proof before a medical malpractice tribunal.  Massachusetts requires that any patient seeking to bring a medical malpractice action either make a sufficient offer of proof to a medical malpractice tribunal or post a six thousand dollar bond in order to proceed to trial.  The court concluded that the patient’s evidence that her doctor had discharged her without the benefit of imaging that the doctor previously described as necessary raised a legitimate question of liability appropriate for judicial inquiry, and that the case should proceed to trial without plaintiff posting a bond. (December 1, 2014)In Pomoroy v. Hospital of the University of Pennsylvania,the Superior Court of Pennsylvania granted a judgment notwithstanding the verdict (JNOV) in a medical malpractice case where the plaintiff alleged that a physician was negligent in failing to insist that his wife undergo a saline colonoscopy to remove a polyp as opposed to surgery.  The wife had died due to complications arising from the surgery.  However, the performance of the surgery itself was not criticized at trial.  The court held that, despite the jury verdict in the plaintiff’s favor, the plaintiff had failed to establish both causation and a breach of the standard of care at trial. The plaintiff did not prove that “but for” the physician’s failure to insist upon a saline colonoscopy, plaintiff’s wife would have rejected the surgical option.  Additionally, the court rejected the plaintiff’s expert’s testimony regarding standard of care insofar as it suggested that the treating physician could be held liable for an adverse outcome as a result of a non-negligent procedure merely due to the fact that another possible treatment alternative was available. (November 19, 2014)

In SEIU Healthcare v. Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania granted a preliminary injunction preventing the Commonwealth of Pennsylvania from closing 26 state health centers.  The suit was brought by a nurse consultant union alleging that Pennsylvania’s Executive Branch was precluded by 71 P.S. §§ 523 and 1403 from unilaterally closing the state operated health centers under a plan of reorganization.  In reversing the trial court’s denial of the preliminary injunction, the Pennsylvania Supreme Court held that the trial court misapplied the governing law, and that the language § 1403 requires the state to keep open the state health centers absent legislative action. (November 20, 2014)

In Fludd v. Pena, the New York Supreme Court, Appellate Division, First Department addressed the issue of whether an orthopedist’s affirmation absent an MRI report could raise an issue of fact as to the seriousness of a back injury. Despite the injured person’s failure to remember which shoulder she had injured in the car accident during her deposition, the Court refused to dismiss the claims of "permanent consequential" and "significant" limitations in use of the lumbar spine in light of an orthopedist’s affirmation that he had reviewed the MRI, which showed bulging disks, and opined the condition was caused by the car accident in question. (November 13, 2014)

In Abato v. Beller and Miller, the New York Supreme Court, Appellate Division, Second Department addressed the issue of whether a proposed interrogatory directed to the jury regarding an injured individual’s cause of action should have been admitted.  The individual brought an action for medical malpractice against her oral surgeon for operating in disregard of the preoperative plan the surgeon established with the individual’s orthodontist.  After the court omitted one of the individual’s interrogatories that spoke to her cause of action, the jury verdict came down in favor of the surgeon.  The court held that “where there is sufficient evidence to support a plaintiff’s cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory.” (November 5, 2014)

In In Re: Order Rescinding Rule 1042.72 of the Pennsylvania Rules of Civil Procedure, the Supreme Court of Pennsylvania rescinded Rule 1042.72 of the Pennsylvania Rules of Civil Procedure, which provided the standard and procedure for the post-trial challenge of pain and suffering damage awards on the basis of excessiveness in medical malpractice actions. (October 17, 2012)

In C.A. v. Bentolila, the Supreme Court of New Jersey considered whether a memorandum summarizing a round-table discussion held by hospital staff to investigate an adverse event is protected from discovery by the Patient Safety Act.  The court held that the document was privileged and undiscoverable because the hospital complied with the Patient Safety Act in effect at the time it was created. (September 29, 2014)

In Wally G. v. New York City Health and Hospitals Corporation, the New York Supreme Court, Appellate Division, First Department, addressed whether medical records placed a public hospital on notice that the plaintiff’s injuries may have been caused by alleged deviations from the standard of care, so as to forgive the prerequisite of filing a notice of claim.  The Court held that since that the medical records, even as interpreted by Plaintiff’s expert, do not yield a non-speculative basis for determining whether the deficits of the prematurely born child would have been less severe absent the alleged deviations of the standard of care, it cannot be said that the medical records put the public hospital on notice of the claim. (September 18, 2014)

In Barkes v. First Correctional Medical, Inc., the United States Court of Appeals for the Third Circuit addressed whether prison administrators are entitled to qualified immunity from a claim that deficiencies in medical care resulted in an inmate’s suicide.  As a threshold matter, the court found that administrators may be subject to a constitutional claim of supervisory liability for allegedly deficient care.  Furthermore, because an inmate’s right to proper implementation of adequate suicide protection protocols was clearly established at the time of the alleged misconduct, the court found that administrators are not entitled to qualified immunity. (September 5, 2014)

In Sokolsky v. Eidelman, the Superior Court of Pennsylvania addressed the viability of vicarious liability and corporate negligence claims against a skilled nursing facility in the context of a legal malpractice action.  With regard to vicarious liability, the court held that a plaintiff need not identify an individual provider, but can state a claim based on the alleged negligence of the medical staff as a unit.  With respect to corporate negligence, the court held that a medical negligence claim against a skilled nursing facility is not limited to the duties identified in Thompson v. Nason Hospital but includes the factors set forth in Section 323 of the Restatement (Second) of Torts. (June 6, 2014)

In Hitesman v. Bridgeway, Inc., the Supreme Court of New Jersey addressed when a plaintiff can state a claim under the New Jersey Conscientious Employee Protection Act, which forbids employers from taking retaliatory action against a licensed or certified health care employee who reports on an employer activity that the employee reasonably believes constitutes improper quality of patient care. The court held that such claims must be premised on a reasonable belief that the employer has violation a law, rule, regulation, or professional code of ethics that governs the employer. (June 16, 2014)

In Baird v. Owczarek, the Supreme Court of Delaware addressed whether evidence of informed consent is admissible in a medical malpractice case in which there is no claim for lack of informed consent.  The court held that this evidence is irrelevant and therefore inadmissible.  The court noted that even if the evidence were relevant, it is inadmissible because it could confuse the jury by suggesting that consent for the medical procedure is consent for the injury.  The court also addressed a trial court’s obligation to investigate an allegation of juror misconduct.  The court held that, where there is an allegation that a juror conducted internet research regarding the case, the trial court must investigate to determine: (1) whether the research occurred; (2) the substance of the research; (3) whether the content of the research prejudiced the juror; and (4) whether the content of the research was communicated to other jurors.  The allegation itself creates a rebuttable presumption of prejudice, which, if not rebutted, compels a trial judge to grant a new trial. (May 28, 2014)

In Komoldi v. Picciano, the Supreme Court of New Jersey addressed the propriety of a preexisting condition jury instruction when the plaintiff alleges that medication was negligently prescribed to her but the plaintiff also failed to properly take her medication as instructed (i.e., plaintiff orally ingested a Duragesic patch).  The preexisting condition instruction (the Scalfidi charge) asks the jury to consider whether, any “negligent treatment increased the risk of harm posed by a preexistent condition” and, if so, “whether the increased risk was a substantial factor in producing the ultimate result.”  The court found the instruction was in error because it was used to allocate fault and not just damages; thereby, impermissibly substituting for a comparative-fault charge. (May 20, 2014)

In Mammarella v. Evantash, the Supreme Court of Delaware addressed whether a plaintiff in a medical malpractice case can establish causation when her expert cannot opine to a reasonable degree of medical probability that a six-month delay by a radiologist in diagnosing a lump in plaintiff’s breast caused a change in plaintiff’s treatment options, namely that she had to undergo chemotherapy rather than radiation.  The Court held that the failure of an expert to testify within a reasonable degree of medical probability as to causation, which is an essential element in a claim for medical malpractice, is fatal to a plaintiff’s claim.  The Court also held that although an affidavit of merit may establish a prima facie case sufficient to file a complaint, it is not enough to meet a plaintiff‘s legal burden to submit trial evidence sufficient to support a jury verdict in her favor. (May 15, 2014)

In Bulebosh v. Flannery, the Superior Court of Pennsylvania held that the Statute of Repose  of the Medical Care Availability and Reduction of Error Act (MCARE) 40 P.S. § 1303.501 did not apply because a plaintiff’s cause of action in a medical malpractice case arises when the alleged negligent act results in a discernible injury.  In this matter, the injury from the negligent act manifested itself prior to the effective date of the statute of repose rendering the MCARE limitation period inapplicable. (April 22, 2014)

In L.A. v. New Jersey Division of Youth and Family Services and Jersey Shore University Medical Center, the Supreme Court of New Jersey addressed the statutory standard  to determine when reporting a case of a suspected child abuse is required in the context of a medical malpractice action.  A toddler was treated and released to his father after ingesting cologne.  The ER physician did not report the incident as potential child abuse. Subsequent events resulted in a determination that child abuse was suspected and the child was removed from the custody of her father and stepmother.  In the context of the medical malpractice action, the Court determined that the ER physician did not have  “reasonable cause to believe that a child has been subjected to child abuse” and therefore did not violate NJSA 9:6-8.1, which requires reporting of such to the Division of Youth and Family Services. (April 23, 2014)

In Cooney-Koss v. Barlow, the Supreme Court of Delaware addressed the admissibility of habit testimony in a medical malpractice suit.  The court held the treating anesthesiologist who had no memory of the plaintiff’s surgery should be allowed to testify as to what he or she would have done in cases where the conduct in questions is part of the practitioner’s regular routine. (March 7, 2014)

In Cordes v. Associates of Internal Medicine, the Superior Court of Pennsylvania considered whether the trial court should have excluded two jurors in a medical malpractice case whose family members were patients of the defendant-doctor, and a juror whose employer was the parent company of a defendant.  The court held that indirect connections to a party can create a presumption and appearance of bias and thus the jurors should have been excluded.  The court emphasized avoiding even the appearance of impropriety. (March 12, 2014)

In Dental Benefit Providers, Inc. v. Eiseman, the Commonwealth Court of Pennsylvania addressed whether the rates of managed care organizations (MCOs) paid to subcontractors, and the rates subcontractors paid to providers of dental services under the Department of Public Welfare’s administration of the Medicaid program, should be disclosed under Pennsylvania’s Right-to-Know Law (RTKL).  The court held that the rates the MCOs paid to subcontractors are exempt from disclosure because they fall within the trade secret/confidential proprietary information exception in Section 708(b)(11) of the RTKL. The court further held that the rates paid by subcontractors to the dental services providers are not accessible under Section 506(d) or Section 901 of the RTKL. (February 19, 2014)

In Robinson v Bronx-Lebanon Hospital Center, the New York Supreme Court, Appellate Division, First Department, addressed whether a party is entitled to summary judgment when the opposing party’s expert raises an issue of fact that is corroborated by medical records.  The court held that in this medical malpractice action, the plaintiff’s expert was able to establish a triable issue of fact regarding whether the plaintiff’s deceased child showed signs of a health complication that was not addressed by the defendant-hospital. Thus, the defendant-hospital was not entitled to summary judgment dismissing the complaint. (January 28, 2014)

In Johnson v. Kindred Healthcare, Inc., the Supreme Judicial Court of Massachusetts addressed whether a health care agent’s decision to enter into an arbitration agreement for disputes arising out of a facility’s care of the agent’s principal is binding on the principal.  Because the decision to enter into arbitration is not a “health care decision” according to the health care proxy statute, the court held that the agent lacked authority to make the decision and that the decision, therefore, is not binding on the principal. (January 14, 2014)

In Klein v. Aronchick, the Superior Court of Pennsylvania addressed the issue of whether a plaintiff can argue that the defendant-doctor’s negligence increased the risk of her kidney failure where her expert only opined that the doctor’s negligence directly caused her kidney failure.  The court held that direct causation and increased risk of harm are not mutually exclusive causation theories, and therefore the plaintiff was entitled to argue that the defendant doctor’s negligence either directly caused her kidney failure or at least increased the risk of such harm occurring.  A concurring opinion stated that Pennsylvania trial courts and the Superior Court of Pennsylvania have, in non-precedential decisions, held that a plaintiff is precluded from the simultaneous pursuit of both direct causation and increased risk of harm theories. (January 7, 2014)

In John Doe v. Guthrie Clinic, Ltd., the New York Court of Appeals addressed whether, under New York law, the common law right of action for breach of fiduciary duty of confidentiality for the unauthorized disclosure of medical information runs directly against a medical corporation, even when the employee responsible for the breach is not a physician and acts outside the scope of his or her employment.  The court held that it may not, noting that a medical corporation’s duty of safekeeping a patient’s confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment. (January 9, 2014)

In Beaver v. Magellan Health Services, Inc., the Superior Court of New Jersey Appellate Division addressed whether a litigant may pursue common law and statutory causes of action in the Law Division, rather than appeal from a state final agency determination, when the merits of the agency determination are at issue.  Here, plaintiff was a former public employee, who received health benefits administered by defendant.  Defendant denied coverage for a claim.  While applicable law permitted an appeal of the decision, plaintiff, instead, decided to file a complaint with the Law Division asserting contract and tort claims.   The court noted that to recover, it was necessary for plaintiff to secure a reversal of the final agency decision.  Accordingly, the court held that the Law Division lacked subject matter jurisdiction over the matter, and plaintiff’s claims should have been asserted as an appeal from the final agency determination. (December 12, 2013)

In Bell v. Willis, the Superior Court of Pennsylvania addressed the propriety of a lack of informed consent claim against a chiropractor who performed cervical manipulations.  The court held that a lack of informed consent claim cannot be brought against a chiropractor because chiropractic manipulations are not surgical procedures, and because chiropractors are not defined as “physicians” under the MCARE Act, which previously expanded the applicability of the informed consent doctrine to include some non-surgical procedures. (November 8, 2013)

In Brady v. Urbas, the Superior Court of Pennsylvania addressed the admissibility of informed consent in a medical malpractice claim alleging substandard medical care.  The court held that evidence of informed consent is irrelevant, and even if it were relevant, it could mislead or confuse the jury.

In Denis v. Manhattanville Rehabilitation and Health Care Center, LLC, the New York Supreme Court, Appellate Division, First Department, addressed the adequacy of the plaintiff’s expert testimony to support claims of medical negligence and lack of informed consent.  Because the expert’s opinion as to a breach of the standard of care was not supported by the medical record, the court dismissed the medical negligence claim.  Because the expert could point to nothing but potential alternative treatments, the court also held that the expert’s opinion was insufficient to raise an inference that a reasonably prudent person would have elected an alternate course of treatment, and dismissed the informed consent claim. (November 7, 2013)

In A.G. v. Elsevier, Inc., the United States Court of Appeals for the First Circuit addressed whether individuals who had been unsuccessful medical malpractice plaintiffs in state court could bring an action for fraud and deceptive trade practices against authors of a journal article that had been introduced into evidence at trial, which was alleged to have resulted in an adverse verdict against the plaintiffs.  The court determined that, even if wrongful conduct were established, the plaintiffs’ claim did not meet the plausibility standard as far as causation. (October 16, 2013)

In Lykes v. Yates, the Superior Court of Pennsylvania addressed a medical malpractice plaintiff’s right to discover the medical records of the defendant physician’s prior patients.  The court held that the plaintiff’s discovery demand did not satisfy Pennsylvania’s balancing test for determining whether an individual’s medical information can be disclosed without permission because the records were not relevant to the standard of care, the records were not necessary to establish negligence, and there was no compelling state interest to justify their disclosure. (September 25, 2013)

In Christ the King Manor, Inc.  v. Secretary US Department of Health and Human Services, the United States Court of Appeals for the Third Circuit reviewed whether a state plan amendment (SPA) for administering Pennsylvania’s Medicaid reimbursement rates to private nursing facilities for the 2008-09 fiscal year violated 42 U.S.C. § 1396a(a)(30)(A) and if it failed to satisfy the public process requirements of 42 U.S.C. § 1396a(a)(13)(A) (“Section 13(A)”).   The Third Circuit said that it could not discern from the record a reasoned basis for the agency’s decision and concluded that approving the SPA without any assurance that the amended plan would produce payments that are consistent with quality of care was arbitrary and capricious under the Administrative Procedure Act. (September 19, 2013)

In United States of America v. Q2Administrators, LLC, the United States Court of Appeals for the Third Circuit addressed the court’s subject matter jurisdiction over a claim of fraudulent billing under the Medicare Act.  The court found that it did not have jurisdiction due to the public disclosure bar of the False Claims Act, which precludes jurisdiction where a suit is based upon the public disclosure of fraudulent allegations in a civil hearing.  Because the claim was based on fraudulent allegations that had been publicly disclosed in a previous bankruptcy hearing, and because the complaining provider was not an original source of those allegations, the public disclosure bar applied. (August 26, 2013)

In Landay v. Rite Aid, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal on the following issues:

1.    Does the Medical Records Act apply to a pharmacy’s provision of copies of records?

2.    Under the Medical Records Act, may a pharmacy charge a flat fee for the reproduction of pharmacy records if it gives the customer an invoice setting forth the fee and the customer reviews and pays the invoice without objection before receiving the pharmacy records? (August 27, 2013)

In Lisa Kinney-Lindstrom v. Medical Care Availability and Reduction of Error Fund (MCARE), the Supreme Court of Pennsylvania addressed whether the Medical Care Availability and Reduction of Error Fund (MCARE) should be liable for multiple occurrences in a dispute where a jury found an obstetrician was negligent and injured a set of twins. Ultimately, the Court rejected the argument that an occurrence should be defined under an “effects” approach which examines the number of individual claims or injuries that result from acts of negligence.  Instead, the Court adopted the “cause” approach which focuses on the act of the insured that gave rise to liability and determines whether there is a single or multiple causes of the damages. The Court established that the number of occurrences under section 715 of the MCARE Act is determined by examining whether there is one or multiple instances of professional negligence that caused the harm alleged and that the number of victims of medical malpractice is not controlling when considering the MCARE Fund’s liability limit.  Importantly, each instance of negligence must be associated with a distinct injury.  The Court ultimately determined that there were issues of fact present as to whether the obstetrician committed a single or multiple acts of professional negligence and remanded for further consideration. (August 19, 2013)

In Hospital and Health Association of Pennsylvania v. Insurance Commissioner, the Commonwealth Court of Pennsylvania addressed several healthcare providers and trade associations’ challenge to assessments imposed under the Medical Care Availability and Reduction of Error Fund (MCARE).  The court reversed the assessments, evaluating Section 712(d)(1) of the MCARE Act and holding that the petitioners’ assessments were too high and their year-end balances for each year should have been included in the aggregate assessment calculation each year. (August 9, 2013)

In Faircloth v. DiLillo, the Supreme Judicial Court of Massachusetts addressed the Massachusetts statutory requirement that, if an initial review by a medical malpractice tribunal determines that there is not sufficient evidence to raise a legitimate question of defendant's liability, a medical malpractice plaintiff may proceed with the case only by posting a bond to cover defendant's costs. The statute permits the court to reduce but not eliminate the bond requirement in the case of indigence. The court here addressed whether a judge may refuse to reduce the bond if he concludes that an attorney is paying or advancing the court costs and litigation expenses for an indigent client. The court concluded that an attorney's agreement to advance court costs is not a relevant factor in determining whether to reduce the amount of bond because of indigence. (August 5, 2013)

In Rawlins v. St. Joseph’s Hospital Health Center, the New York Supreme Court, Appellate Division, Fourth Department, addressed whether a plaintiff bringing a medical malpractice action is entitled to discovery of a hospital’s documents and manuals on policies and procedures discussing the applicable standard of care for the medical procedure at issue.  Noting that CPLR 3101 requires full disclosure to all matter material and necessary in the prosecution of an action and finding that the plaintiff’s discovery requests were material and necessary in proving its case, the court granted the plaintiff’s discovery requests and required the hospital to produce the documents and manuals. (July 19, 2013)

In Grane Hospice Care, Inc. v. Department of Public Welfare, the Commonwealth Court of Pennsylvania addressed whether “substantial compliance” with Medical Assistance regulations is sufficient for a medical care provider to be entitled to reimbursement by the government.  The court held that “substantial compliance” with Medical Assistance regulations is not sufficient, but, rather strict compliance with the regulations pertaining to submission of claims is required where disbursement of public funds is at issue. (July 25, 2013)

In Balzola v. Giese, the New York Supreme Court, Appellate Division, First Department, affirmed the dismissal of claims for lack of informed consent and negligent treatment.  The trial court dismissed the informed consent claim, because after the defendants made a prima face showing that consent was properly obtained, the plaintiffs failed to raise a triable issue of fact by offering expert medical evidence that established an alleged increased risk to the decedent was material and that lack of informed consent proximately caused the injury. Further, the court affirmed the dismissal of the plaintiffs’ negligence claim against the physician’s assistant, which arose out of an alleged failure the communicate with the decedent because the plaintiffs’ expert did not opine that this alleged failure was the proximate cause of the decedent’s injuries. (June 25, 2013)

In O’Riley v. Rogers, the Supreme Court of Delaware addressed whether defense counsel can ask a medical expert to speculate about possible medical consequences of potential future treatment. The court determined that—even if extracted through cross-examination—expert testimony that a certain thing is possible is no evidence at all. Thus, such evidence must be excluded. The court went on to explain that such testimony may be addressed through hypothetical situations. (June 19, 2013)

In E.B. v. Division of Medical Assistance and Health Services, the Superior Court of New Jersey,Appellate Division, addressed a challenge to the Division of Medical Assistance and Health Services of the State of New Jersey Department of Human Services (Division) requirement that a Medicaid applicant or recipient complete the Medicaid Designation of Authorized Representative (MDAR) form if the applicant wishes to appoint an authorized representative to act on the applicant's behalf.  In response to the plaintiffs’ argument that the MDAR form violates federal and state laws, including the New Jersey Administrative Procedure Act (APA), the court held that the Division did not violate any federal or state laws or regulations regarding its decision to require applicants to complete a standardized assignment form such as the MDAR, concluding that no conflicts exist in the use of this form that would trigger federal preemption and that the MDAR requirement does not impede plaintiffs' rights to have a fair hearing under state law. (June 5, 2013)

In Walton v. Robert Wood Johnson, the Superior Court of Pennsylvania addressed the issue of whether the plaintiff’s mother was acting as an agent of plaintiff when she signed a voluntary alternative dispute resolution agreement with the hospital-defendant.  The plaintiff’s mother signed the agreement, which was presented to her as a series of documents by the hospital, when her adult daughter was admitted while in a coma. The court concluded the plaintiff’s mother was not an agent because the evidence failed to show that she acted on behalf of her adult child with express authority, apparent authority, implied authority, or authority by estoppel. (May 7, 2013)

In Nicholas v. Mynster, the Supreme Court of New Jersey addressed the question of whether a medical expert possesses the statutory credentials necessary to testify when that expert does not practice in the same specialties as the defendant physicians.  The court found that, although the medical expert witness was an expert on the issues relevant to the case, under N.J.S.A. 2A:53A-41, he is required to practice in the same specialty or subspecialty as the defendant physician at the time of the occurrence. (April 25, 2013)

In Hitesman v. Bridgeway, Inc., the Superior Court of New Jersey, Appellate Division addressed the sufficiency of a retaliatory termination claim made under the Conscientious Employee Protection Act (CEPA), which permits a licensed or certified healthcare professional to assert a claim against his or her employer based on an objectively reasonable belief that the employer’s conduct constitutes improper quality of patient care.  In order to show an objectively reasonably belief, the employee must identify a law, professional code of ethics or public policy that was allegedly violated.  Because the plaintiff based his belief on a standard that was inapplicable to his employer, he could not establish the requisite objectively reasonable belief. (March 22, 2013)

In Bell v. Fisher, the Supreme Court of Delaware addressed the admissibility of expert testimony that is not based on the fundamental facts of the plaintiff’s medical history in a professional liability case.  The court excluded the plaintiff’s expert’s testimony because it was based on an erroneous assumption that the plaintiff had no pre-existing injury. (March 18, 2013)

In Levin v. United States, the United States Supreme Court addressed whether the Federal Tort Claims Act precludes a claim for battery arising out of medical care by a military physician.  The Court held that The Gonzalez Act, which provides an exception to the Federal Tort Claims Act for intentional torts, applies to claims of battery arising out of medical care. (March 4, 2013)

In Sternberg v. Nanticoke Memorial Hospital, Inc., the Supreme Court of Delaware addressed the propriety of an award of contractual attorney’s fees to the hospital in an action brought by a physician for wrongful suspension.   The court held that the fee shifting provision of the hospital’s credentials policy was not void as against public policy; the hospital did not breach policy procedures by instituting a precautionary suspension; and the trial court acted within its discretion in awarding attorney's fees. (February 28, 2013)

In Renna v. Shadt, the Superior Court of Pennsylvania, addressed whether the trial court erred in permitting a pathologist and oncologist to render expert testimony regarding the standard of care applicable to a surgeon and whether it erred in failing to grant judgment n.o.v., a new trial, and remittitur in light of the verdict.  The court held that there was “considerable evidentiary support” to allow the expert testimony, the verdict was supported by the evidence as to causation, the defendant was not entitled to judgment n.o.v., there was no basis to challenge the court’s denial of a new trial, and remittitur was not warranted because there was sufficient evidence to support the jury award. (February 25, 2013)

In Weart v. Surgical Associates of Bradford, the Superior Court of Pennsylvania addressed the propriety of a jury instruction regarding a physician’s “mere mistake in judgment.”  Citing the 2009 Superior Court of Pennsylvania opinion in Pringle v. Rapaport, the court found that a jury may not be charged that a physician is not liable for a mere mistake in judgment. (January 31, 2013)

In Community Hospital Alternative for Risk Transfer v. Ins. Comm’r, the Commonwealth Court of Pennsylvania addressed whether a claims investigator’s subjective findings, concerning the incidents giving rise to a writ of summons, would constitute “notice” to the insured for purposes of triggering the 180-day notification period under section 715 of the Medical Care Availability and Reduction of Error (MCARE) Act. The court held that without specific information identifying the starting and ending dates of the alleged malpractice - the nature of the claim asserted and a description of the alleged wrongful acts - an insured cannot be said to havenotice” of the suit. (January 17, 2013)

In Seebold v. Prison Health Services, Inc., the Supreme Court of Pennsylvania held that a physician who treated prison inmates did not have a common law duty to warn specific corrections officers that a particular inmate had a communicable disease. (December 28, 2012)

In Clark v. Board of Registration of Social Workers, the Supreme Judicial Court of Massachusetts addressed whether due process required the board to hold a separate hearing regarding sanctions.  The court concluded that due process did not require the hearing to be in a particular form, but recommended that the perceived fairness of the hearing could be enhanced by a either a statement earlier in the proceedings as to the sanction being sought or a bifurcation of the proceedings into adjudication and sanction stages. (January 2, 2013)

In Rubin v. Fox, the Commonwealth Court of Pennsylvania addressed the withdrawal of a paramedic’s medical command authorization (MCA) under the Emergency Medical Services System Act, 35 Pa. C.S. § 8101 et seq., for the violation of a statewide protocol. The court held that, although the paramedic did violate protocol in administering a drug to a car accident victim, the violation of protocol was not, by itself, sufficient under the circumstances to warrant revocation of his MCA. (November 19, 2012)

In Sernovitz v. Dershaw, the Superior Court of Pennsylvania addressed whether the Pennsylvania statute, 42 Pa.C.S.A. § 8305, prohibiting causes of action for wrongful birth and wrongful life, is unconstitutional.  The court declared the statute unconstitutional as violative of the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution.  In a concurring opinion, Ford Elliott, P.J.E., noted that a common law cause of action for wrongful life has never been recognized in the Commonwealth. (November 14, 2012)

In Nichole Med. Equip. & Supply, Inc. v. Tricenturion, Inc., the United States Court of Appeals for the Third Circuit considered whether a durable medical equipment supplier could bring state law tort claims against a Medicare contractor for alleged unlawful conduct. The court held that the Medicare Act provided immunity to the contractor because the allegations related to the relationships between the parties which are directly governed by, and “arise under”, the Act itself. (September 13, 2012)

In Boston Medical Center Corporation v. Secretary of the Executive Office of Health and Human Services, the Supreme Judicial Court of Massachusetts addressed whether hospitals may bring a lawsuit over the proper amount of reimbursement owed to hospitals under the Massachusetts Medicaid program. The court concluded that the Massachusetts statute authorizing the Secretary to set yearly reimbursement rates under the Medicaid program did not waive sovereign immunity, and that therefore the hospitals could not challenge the methodology used to set reimbursement rates. (September 14, 2012)

In Cooper v. Lankenau Hospital, the Supreme Court of Pennsylvania addressed whether the trial court’s jury charge concerning informed consent improperly suggested that the plaintiff had to prove that the defendant doctor intended to harm the patient. The court held that that a plaintiff in a medical battery/lack-of-consent case need not prove that the defendant surgeon performed the unauthorized operation with the intent to harm the patient.  Rather, by proving that the surgery or “touching” was intentional and not consented to, a patient establishes that it was “offensive” sufficient to render the unauthorized surgery a battery.  Since those concepts were accurately recited in the entire charge, the court upheld the jury’s finding in favor of the defense. (August 20, 2012) White and Williams’ Rosemary Schnall and Edward Koch secured this favorable result for our client.

In Mendel v. Erick Williams, M.D., the Superior Court of Pennsylvania addressed whether a Pennsylvania Court may assert general or specific jurisdiction over an out-of-state corporate healthcare provider in a medical malpractice action by a Pennsylvania resident who receives negligent treatment in a foreign jurisdiction. The court held that in this matter, the corporate healthcare provider did not maintain continuous or systematic activities as part of its general business within the Commonwealth and prevented general jurisdiction in Pennsylvania. Further, the court held the two requirements for specific jurisdiction in Pennsylvania, which includes 1) the jurisdiction must be authorized by state Long-Arm Statute; and 2) jurisdiction must comport with constitutional principles of due process, were also not met because the corporate healthcare provider did not meet the established minimal contacts requirements for specific jurisdiction. (August 20, 2012)

In Newmark-Shortina v. Buna, the Superior Court of New Jersey, Appellate Division, addressed whether, in a medical malpractice action, a claim of lack of informed consent was improperly withheld from the jury where the plaintiffs did not specifically plead it in the complaint. The court held that because the plaintiffs had presented evidence that they were neither advised nor offered an alternative to terminating a pregnancy—where such alternatives existed—they had sufficiently established facts entitling them to submit the claim to the jury. (July 27, 2012)

In Commonwealth v. Janssen, the Commonwealth Court of Pennsylvania addressed the viability of Medicaid fraud claims in a civil suit brought by the Commonwealth against a drug manufacturer for fraudulently withholding information about a drug.  The court found that a drug manufacturer is not a “provider” of medical goods and services to Medicaid recipients under 62 P.S. Section 1401, and its conduct does not support civil remedies pursuant to the Medicaid Fraud Control Act. (July 26, 2012)

In Pitts v. Wingate at Brighton, Inc., the Appeals Court of Massachusetts addressed whether a malpractice claim that a broken bone resulted from a fall at the nursing home must be supported by expert evidence as to the cause of the break.  The court held that expert evidence is not required because the causation of broken bones lies within general human knowledge and experience. (July 26, 2012)

In National Federation of Independent Business v. Sebelius, the United States Supreme Court addressed the constitutionality of the Patient Protection and Affordable Care Act, commonly known as the “Healthcare Reform Act.” The Court upheld the Act’s individual mandate, which requires most Americans to maintain “minimum essential” health insurance coverage, but declared the Act’s penalty provision relating to the expansion of Medicaid to be unconstitutional. Specifically, the Court held:

1.    the Anti-Injunction Act, which bars lawsuits relating to taxation until the tax is actually paid, did not bar this lawsuit;

2.    the Act’s individual mandate is not a valid exercise of Congress’s Commerce Clause powers;

3.    the individual mandate is constitutional as a tax on those who do not have health insurance imposed within Congress’s powers under the Taxing Clause;

4.    the penalty imposed by the Act on states failing to comply with the Medicaid expansion provisions of the Act is unconstitutional “economic dragooning” beyond Congress’s powers under the Spending Clause; and,

5.    the Medicaid expansion penalty portion of the Act is severable from the remainder of the Act. (June 28, 2012)

In Babb v. Centre Community Hospital, the Superior Court of Pennsylvania addressed whether the trial court properly granted summary judgment to a number of healthcare providers and professionals based on Healthcare Quality Improvement Act (HCQIA) immunity on a number of claims asserted by a physician who was terminated after professional review. The court held that an objective standard is applied to determine whether there is HCQIA immunity and there is a presumption of immunity that must be overcome by the plaintiff. The court further held that HCQIA immunity is not available for claims seeking injunctive relief and only applies to claims for damages. (June 14, 2012)

In Yussen v. Medical Care Availability and Reduction of Error Fund, the Pennsylvania Supreme Court analyzed obligation of the Insurance Department to defend certain medical professional liability actions asserted against health care providers.  Appellant’s primary insurer, Pennsylvania Healthcare Providers Insurance Exchange requested that the claim be accorded Section 715 status by the Insurance Department. The Pennsylvania Supreme Court agreed with the Insurance Department that the mere filing of a praecipe for a writ of summons does not suffice to make a claim, at least in absence of some notice or demand communicated to those from whom damages are sought. (May 30, 2012)

In Bratic v. Rubendall, the Superior Court of Pennsylvania reversed and remanded an order to transfer a case on the grounds of forum non conveniens from Philadelphia to Dauphin County because the trial court relied on irrelevant factors in reaching its decision, and the moving party failed to offer particularized averments sufficient to satisfy the standard set forth in Cheeseman v. Lethal Exterminator Inc. Specifically, the court held that the fact that none of the appellants were from Philadelphia County is irrelevant to a claim of forum non conveniens. In addition, the court also held that the relevant inquiry regarding witnesses with client-based professions is the impact that participation in a particular venue will have to the witness, not his or her clients. (April 23, 2012)

In Wheeler v. Ulisny, the United States Court of Appeals for the Third Circuit addressed whether the doctrine of sovereign immunity barred claims against the United States Postal Service (USPS) under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., when the USPS allegedly lost several items Wheeler had mailed. The court held that while the FTCA generally waives USPS’s sovereign immunity for claims for money damages arising out of the loss of property, the USPS retains sovereign immunity for “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). The USPS was thus immune from suit because the claim arose out of the alleged loss of postal matter. (April 25, 2012)

In Wharton v. Wharton, the Supreme Court of Delaware addressed whether a spouse’s student loans were marital debt. The court held that because the loans were incurred before separation and because both spouses had agreed to joint responsibility for repayment, the loans were marital debt. (April 25, 2012)

In Konop v. Rosen, the Superior Court of New Jersey, Appellate Division addressed whether a doctor’s notation on a consultation report, recorded upon the plaintiff’s initial admission to the hospital, was inadmissible hearsay. The court held that the consultation report was admissible evidence as a business record, N.J. R. Evid. 803(c)(6), and the notation—double hearsay—was admissible as a statement of a party opponent, N.J. R. Evid. 803(b)(1). (April 25, 2012)

In Walker v. Choudhary, the Superior Court of New Jersey, Appellate Division held that a judge should hold a Lopez hearing in order to determine whether an action could be brought against a prospective defendant outside the statute of limitations using the “relation-back” doctrine.  In addition, the court held that summary judgment in favor of an employee on the basis of statute of limitations was not res judicata barring a claim against the employer. (March 30, 2012)

In Pennsylvania Medical Society v. Dept. of Public Welfare, the Supreme Court of Pennsylvania addressed whether the Commonwealth had an obligation under the Health Care Provider Retention Law (the Abatement Law)  to transfer monies to the Medical Care Availability and Reduction of Error Fund (MCARE Fund) in an amount necessary to fund, dollar for dollar, all abatements of annual assessments granted to health care providers for the years 2003-2007. The Court held that the Abatement Law gave the Commonwealth the discretion, but not the obligation, to transfer monies into the MCARE Fund in an amount up to the total amount of abatements granted. (February 29, 2012)

In Skonieczny v. Cooper, the Superior Court of Pennsylvania addressed whether, pursuant to Pa. R. Civ. P. 1042.3, a certificate of merit in a professional negligence action must be filed within 60 days of filing the complaint, where the action was commenced by writ of summons before the effective date of the rule. The court held that, based on the Supreme Court of Pennsylvania’s promulgating Order limiting the application of the rule “to actions commenced on or after the effective date of [the] Order,” the rule does not apply to cases commenced by writ of summons before its promulgation. (February 7, 2012)

In Sayler v. Skutches, the Superior Court of Pennsylvania addressed whether the award of attorneys' fees under Section 509 of the MCARE Act is to be based on the total amount of future medical expenses awarded or only the percentage of the future medical payments actually accrued. At the time of the attorney fee award, the plaintiff had passed away. Noting that Section 509(b) provides that “liability for future damages terminates upon a claimant’s death,” the court held that the “present value” of the plaintiff’s future medical expenses was the amount actually accrued before her death, and that her attorneys’ fees must be calculated on that figure. (February 7, 2012)

In Selective Insurance Co. of America v. Rothman, M.D., the Superior Court of New Jersey, Appellate Division held that a licensed physician’s assistant (PA) is not authorized to perform a needle electromyography (EMG). The court relied upon a New Jersey statute that limits performance of EMGs to those who are licensed to “practice medicine and surgery,” a group to which physician’s assistant do not belong. (January 18, 2012)

In Toney v. Chester County Hospital, the Supreme Court of Pennsylvania decided whether to recognize a cause of action for negligent infliction of emotional distress (NIED) where the plaintiff alleged that she suffered severe emotional distress after a radiologist misinformed her of the results of a fetal ultrasound, leaving her unprepared to see her child born with significant deformities. There was no allegation that the radiologist’s alleged negligence caused any physical harm to the mother or fetus. An evenly divided court held that an NIED claim can be sustained in situations involving a special relationship, such as a pregnant patient and hospital, which makes it foreseeable that extreme emotional harm could result. By operation of law, the split decision is not precedential, but affirms the Superior Court of Pennsylvania’s en banc decision. (December 22, 2011)

In Spicer v. Osunkoya, the Supreme Court of Delaware addressed whether a doctor owes a duty of care to a patient after the doctor has referred the patient to a specialist.  Absent some knowledge on the part of the referring physician that the specialist was incompetent, the court held that “a physician who … refers a patient to a specialist because the patient’s ailment is or may be outside his field of competence, is not liable for the negligence of the physician to whom referral is made.”   White and Williams own John D. Balaguer, Kim Kocher and Dana Monzo successfully handled the appeal of this matter. (November 15, 2011)

In Dishmon v. Fucci, the Supreme Court of Delaware addressed the nature of appropriate sanctions for failing to fully comply with the affidavit of merit requirement under Delaware’s medical negligence statue.  The statue requires, among other things, an affidavit of merit signed by an expert, which states that there are reasonable grounds to believe that the defendant healthcare provider breached the applicable standard of care that caused the injuries claimed in the complaint.  The court held that the  plaintiff’s failure to enclose a copy of his expert's curriculum vitae along with his affidavit of merit was merely a procedural violation, and, therefore, the trial judge should have exercised discretion to allow the plaintiff a reasonable extension to submit his expert’s curriculum vitae rather than dismiss the case. (November 10, 2011)

In Buck v. Henry, the Supreme Court of New Jersey addressed whether the trial court’s failure to hold a case management within 90 days of the service of the answer excused the plaintiff’s failure to produce an affidavit of merit.  The court held that the trial court’s failure to conduct the case management conference precluded the entry of summary judgment against the plaintiff because any deficiencies with the plaintiff’s affidavit of merit could have been corrected within the statutory time frame. (August 22, 2011)

In Matharu v. Muir, the Superior Court of Pennsylvania addressed whether the statute of limitations precluded an action for the death of a child where the underlying negligent action by the physician occurred nine years earlier during the birth of a previous child. The plaintiffs were aware of the negligent conduct at the time it originally occurred and had even contacted an attorney regarding it in 1998. The court held that, because it was a wrongful death and survival action, the statute of limitation began to run only after the death of the subsequent child born in 2005. (June 28, 2011)

In Reddy v. PMA Insurance Co., the Supreme Court of Delaware addressed whether a contribution claim, filed after the statute of limitations expired on the underlying tort claim, bars the statutory right of contribution amongst joint tortfeasers as codified under Delaware law in the Uniform Contribution Act. The court held that the contribution claim brought against a treating physician by a healthcare facility that paid damages in a negligence suit was timely filed because the Uniform Contribution Act does not have a specially designated statute of limitations. The court agreed with the defendant that title 10, section 8106(a) of the Delaware Code provided three years from the accruing of the cause of such action (payment of damages) was applicable. (May 31, 2011)

In Heim v. Medical Care Availability and Reduction of Error Fund, the Supreme Court of Pennsylvania addressed the interplay of the statutory schemes of the CAT Fund and its predecessor, the MCARE Fund, which provide healthcare providers with protection from excess liability and insurer insolvency, and the doctrine of joint and several liability. The issue involved the unpaid portion of a verdict allocated to the employee-physician of another physician's practice, both physicians of whom were held liable in the underlying medical malpractice action. According to its terms, the CAT Fund was responsible to pay the judgment against a healthcare provider to the extent the judgment exceeded that provider's basic primary coverage insurance. Finding no ambiguity in the statute's establishment of a provider's own primary coverage as the boundary between what is primary and what is excess relative to that provider, the Court affirmed the lower court's holding that the liability of the physician for the shortfall in his employee-physician's primary coverage fell within the CAT Fund's excess coverage obligation to the physician, which responsibility was assumed by the MCARE Fund. (April 29, 2011)

In Spencer v. Goodill, the Supreme Court of Delaware considered the extent to which a plaintiff must prove causation in a medical malpractice case based on lack of informed consent. The Supreme Court affirmed the decision of the Superior Court and held that a patient, in order to make out a claim based on lack of informed consent, must prove that a reasonable person, if told about the risk, would have declined treatment. (April 6, 2011)

In Maxwell-Jolly v. Independent Living Center of Southern California, the Supreme Court of the United States granted certiorari to decide the following issues: 1) whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates; and 2) whether a state law reducing Medicaid reimbursement rates may be held preempted by § 1396a(a)(30)(A) based on requirements that do not appear in the text of the statute. (January 18, 2011)

In Cooper University Hospital v. Sebelius, the United States Court of Appeals for the Third Circuit held that a hospital may not use the number of "patient days" it serves under the New Jersey Charity Care Program (NJCCP) when calculating its Medicare disproportionate share hospital (DSH) adjustment. Medicare provides hospitals that treat a disproportionately large, low-income population with an adjustment to offset its high amount of unpaid costs. Under the NJCCP, hospitals are reimbursed for costs incurred in treating uninsured hospital patients who are ineligible for any private or government sponsored coverage. Plaintiff sought to include patients it treated under the NJCCP in its calculation of its Medicare DSH adjustment. The district court held that the decision of the Center for Medicare and Medicaid Services to exclude NJCCP patients from the Medicare DSH adjustment calculation was reasonable because NJCCP patients are not eligible for medical assistance under a state plan. (January 14, 2011)

The Supreme Court of New Jersey, in  granted a Petition for Certification of Appeal to address a question related to New Jersey's Affidavit of Merit Statute. The question the Court agreed to consider is: "Does N.J.S.A. 2A:53A-41(a) of the Affidavit of Merit Statute require the dismissal of plaintiff's medical malpractice claim under the circumstances presented?" (September 10, 2010)

In Freed v. Geisinger Medical Center, the Supreme Court of Pennsylvania held that an appropriately qualified nurse is not precluded from providing medical causation testimony at trial. Moreover, the Court held that it was appropriate to sua sponte overrule a prior Supreme Court opinion holding to the contrary. (September 29, 2010)

In Taylor v. Pontell, the Supreme Court of Delaware addressed whether Delaware's Savings Statute, 10 Del. C.§ 8818(a), applies to toll the statute of limitations in medical malpractice cases governed by the Health Care Act, 18 Del. C.§ 6856. The court held that the Savings Statute does not apply to cases brought under the Health Care Act because the General Assembly expressly restricted the time period for initiating a claim for medical negligence to the time period proscribed in the Health Care Act. (September 2, 2010)

In Coleman v. Wyeth Pharmaceuticals, et. al, the Superior Court of Pennsylvania addressed the application of the discovery rule to the statute of limitations in a number of cases where the plaintiffs were making personal injury, hormone replacement therapy (HRT) claims. The court also addressed whether responses the plaintiffs made on Fact Sheets filled out in conjunction with their suits could be treated as judicial admissions. The trial court granted summary judgment in favor of the defendants, holding that the plaintiffs knew or should have known that their injuries resulted from the defendants' conduct more than two years before they filed their complaints. The Superior Court reversed, holding that genuine issues of fact remain as to whether, with the exercise of diligence, the causal connection between HRT and breast cancer was knowable to the plaintiffs before the results of a Women's Health Initiative study were revealed on July 9, 2002. In reversing the trial court, the Superior Court indicated that recent Pennsylvania Supreme Court decisions evidence a "strong preference for the submission of such fact-intensive inquiries to the jury." The Superior Court also addressed whether the trial court properly treated responses to Question XI on the Fact Sheet filled out in HRT cases as a judicial admission. The question asked if the plaintiffs had discussions with their doctors about whether their condition was related to the use of hormone therapy medications. The Superior Court held that Fact Sheet responses are not binding judicial admissions. (August 30, 2010)

In Ruzszala v. Brookdale Living Communities and Azzaro v. Brookdale Living Communities, the Superior Court of New Jersey, Appellate Division, in two consolidated appeals, determined whether § 2 of the Federal Arbitration Act (FAA), 9 U.S.C.A. § 2-which declares arbitration provisions in contracts "valid, irrevocable, and enforceable"-preempts the public policy of the State, as expressed by the Legislature in N.J.S.A. 30:13-8.1, one of the key components of the "Nursing Home Responsibilities and Rights of Residents" Act. N.J.S.A. 30:13-8.1 renders void and unenforceable "[a]ny provision or clause waiving or limiting the right to sue . . . between a patient and a nursing home." The Appellate Division held that the FAA preempts the anti-arbitration provision in N.J.S.A. 30:13-8.1. However, the court found that certain discovery restrictions, limitations on compensation for noneconomic damages, and the outright preclusion of punitive damages in the arbitration agreement at issue were substantively unconscionable, and, therefore, invalid. (August 13, 2010)

In Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., et al., the New Jersey Superior Court, Appellate Division, considered whether pre-dispute agreements to submit medical malpractice claims to binding arbitration are enforceable. As a threshold matter, the court declined to impose an absolute bar to the enforcement of agreements to arbitrate medical malpractice claims. With respect to the agreement entered into here, however, the court held that the agreement was procedurally and substantively unconscionable because the plaintiff was not informed that the contract waived the rights of her husband and child, who were not parties to the agreement. Therefore, the court reversed the trial court's decision enforcing the agreement. (August 18, 2010)

In Foster v. UMPC South Side Hospital, the Superior Court of Pennsylvania addressed whether the defendant hospital was entitled to immunity under the Healthcare Quality Improvement Act from a suspended doctor's breach of contract claims based on the hospital failing to provide the doctor with a fair and adequate hearing. The suspended doctor argued that the hospital was not immune because he did not have the opportunity to cross-examine the doctor who authored the evaluative report that opined that the suspended doctor did not provide adequate care to his patient. The court held that the hospital was entitled to immunity and that the suspended doctor waived this argument because the suspended doctor knew that the evaluative report existed and that its author would not be present at the hearing prior to the hearing, but failed to object prior to the hearing. (August 6, 2010)

In Krapf v. St. Luke's Hospital, the Superior Court of Pennsylvania considered the doctrine of fraudulent concealment, and its application to claims based on corporate negligence. The plaintiffs, family members of the decedents, brought Wrongful Death and Survival Act claims against St. Luke's because the decedents were allegedly murdered by a nurse-employee while they were patients. St. Luke's argued that the actions were barred by the statute of limitations. The plaintiffs argued that the doctrine of fraudulent concealment served to toll the running of the statute of limitations in these actions. On appeal, the Superior Court noted that for the doctrine of fraudulent concealment to be applicable, a defendant must have committed some affirmative, independent act of concealment upon which the plaintiff justifiably relied. There must also exist a duty to speak before fraudulent concealment can be found, and mere silence in the absence of a duty to speak cannot suffice to prove fraudulent concealment. Importantly, a defendant's conduct need not rise to fraud or concealment in the strictest sense; unintentional fraud or concealment is sufficient. The Superior Court concluded that the doctrine of fraudulent concealment was applicable to the hospital's affirmative act of issuing death certificates for each of the decedents (all of which attributed the deaths to natural causes or disease), upon which the plaintiffs relied to their detriment . Further, based on its analysis of Pennsylvania statutory and common law, the Superior Court affirmed the trial court's decision that a hospital has an affirmative duty to inform a patient or his or her next of kin when it knows or should have known "that one of its employees either killed, or, by administering unauthorized medications, attempted to kill [the] patient." (July 27, 2010)

In Scampone v. Grane Healthcare Co., et al., the Superior Court of Pennsylvania addressed whether a corporate negligence claim can be asserted against a nursing home, and whether an allegation of understaffing is sufficient to support such a claim. The court held that a nursing home can be liable under a corporate negligence theory because it is analogous to a hospital in the level of care offered. It further held that an allegation of understaffing can form the basis of a corporate negligence claim against a nursing home. (July 15, 2010)

In Selective Ins. Co. v. Rothman, the Superior Court of New Jersey, Appellate Division, addressed whether physician assistants are precluded by the dictates of N.J.S.A. 45:9-52(a) from performing needle electromyography (EMG) studies. The statute states, in part, that a person shall not perform EMG tests or interpret evoked potentials or EMG studies unless that person is licensed to practice medicine and surgery in the State of New Jersey. The court determined that physician assistants are not "licensed to practice medicine and surgery" and, therefore, are not authorized to perform needle EMG studies. (July 13, 2010)

In Freeman v. X-Ray Assoc., the Delaware Supreme Court examined whether, under the Healthcare Medical Negligence Insurance and Litigation Statute, 18 Del. C. § 6853(e)(3), a liver biopsy is considered a "surgical procedure." The Court also considered whether removing kidney tissue, when intending to excise liver tissue, is considered a procedure performed on the wrong organ thereby creating a presumption of negligence under the statute. The Court held that the biopsy was a surgical procedure, and it was performed on the wrong organ and the defense did not conclusively rebut the statutory presumption of negligence. (July 8, 2010)

In Sheridan, et al. v. NGK Metals Corp., et al., the United States Court of Appeals for the Third Circuit Court considered whether, under Pennsylvania law, plaintiffs suffering from chronic beryllium disease (CBD) can recover medical monitoring costs. The plaintiffs alleged that they had been exposed to beryllium from the defendants' factories, and asked that the defendants be required to pay the costs of medical monitoring to determine if they were developing CBD. The Third Circuit, citing Redland Soccer Club, Inc. v. Dep't of the Army, 696 A.2d 137 (Pa. 1997), held that plaintiffs can only receive medical monitoring costs if they show a significantly increased risk of contracting a disease, and ruled in favor of the defendants. The Third Circuit found that a plaintiff would have a significantly increased risk of CBD only if he or she had been sensitized to beryllium, which the plaintiffs in this case could not prove. The Third Circuit's decision was guided by the Pennsylvania Superior Court's decision in Pohl v. NGK Metals Corp., 936 A.2d 43 (Pa. Super. 2007), which addressed the same issue and applied Redland Soccer to deny a plaintiff's request for medical monitoring for beryllium exposure. (June 7, 2010)

In Hall v. Parviz Sorouri, M.D., the Delaware Supreme Court addressed whether a medical malpractice and negligence complaint should be dismissed where the plaintiff submitted certain other materials in lieu of an affidavit of merit. The Court held that the filing of a healthcare negligence action without the requisite affidavit of merit constitutes grounds for dismissal of the claims as a matter of law. (June 7, 2010)

In Buck v. Henry, the Superior Court of New Jersey, Appellate Division addressed whether defendants could offer expert witnesses who were members of plaintiff's treating physician's practice group. The plaintiff claimed that defendant Cooper Health Systems (Cooper) was negligent in failing to take appropriate measures to prevent or delay her preterm delivery. Cooper retained senior members of a neurology group, of which the plaintiff's treating physician was member, to draft expert reports in this matter. The plaintiff moved to exclude the identified defense experts because of the prejudice associated with bolstering their qualifications when the plaintiff argued the excellent qualifications of his own treating doctor. In addition, the plaintiff argued that the use of these doctors as defense experts would adversely affect the physician-patient relationship between the plaintiff and his treating physician. The trial court granted the plaintiff's motion to preclude Cooper from using these experts. The Appellate Division affirmed, reasoning that allowing these experts to testify would cause unfair prejudice. (March 24, 2010)

In Vicari v. Spiegel, the Supreme Court of Pennsylvania reviewed whether the plaintiff's expert was qualified under the MCARE Act to testify against the defendant-physicians. In holding that plaintiff's expert was qualified, the Supreme Court explained that section 512(e) of MCARE provides that a court may waive the same board and same specialty requirements if the proposed expert has sufficient training, experience, and knowledge to testify as a result of active involvement in a field of medicine "related" to the subspecialty of the defendant physician. Because the statute does not define the term "related field of medicine," the Supreme Court stated that the determination of "relatedness" can only be assessed with regard to the specific care at issue, which would likely require a supporting evidentiary record and questioning of the proffered expert during voir dire. (March 25, 2010)

In Estate of Michael Rettger v. UPMC Shadyside, the Superior Court of Pennsylvania addressed several evidentiary issues related to a healthcare malpractice claim brought by an estate, including: whether the trial court erred in (1) excluding purported admissions of a defendant-physician, Eugene Bonaroti, M.D. (Bonaroti), because of the absence of a cross-claim; (2) refusing to allow UPMC to amend its pleadings to add a cross-claim against Bonaroti; and (3) permitting a doctor to opine about the standard of care with which a nurse should comport. With respect to the first two issues, the court found that in the absence of a cross-claim, hearsay statements attributed to Bonaroti were not subject to introduction as opposing party admissions. In addition, the court held that the trial court properly disallowed UPMC's late attempt to amend its pleading because the attempt, which came at trial, after the Estate had put on its case and chosen not to introduce the statements, was prejudicial to Bonaroti. As to the third issue, the court held that there was no error in allowing the doctor, who testified as an expert witness, to opine about the expectations of a nurse because the doctor interacted on a daily basis with nurses in a hospital setting. Consequently, the judgment of the trial court was affirmed. (March 17, 2010)

The Supreme Court of Pennsylvania, in E.D.B. v. Claire, addressed the question of whether the Pennsylvania Department of Public Welfare (DPW) can obtain reimbursement from a tortfeasor for Medicaid expenditures made on behalf of a disabled minor when a claim therefore by the minor's parents is barred by the statute of limitations. The court held "pursuant to the Fraud and Abuse Control Act, a Medicaid beneficiary has a cause of action against his or her tortfeasor to recover and reimburse DPW for Medicaid benefits received during the beneficiary's minority." Thus, DPW was entitled to reimbursement. (December 29, 2009)

The Supreme Court of Pennsylvania, in Thierfelder v. Wolfert, granted a Petition for Allowance of Appeal to consider the following issue: "Whether, for purposes of determining professional negligence, a general practitioner who provides mental health treatment to a patient is held to the same higher duty as a specialist in psychiatry or psychology?" (November 24, 2009)

In Estate of Christopher Aranda v. Amrick, M.D., the Superior Court of Pennsylvania addressed whether the trial court properly denied the plaintiff's petition to open a judgment of non pros, which was entered because the plaintiff failed to timely file a certificate of merit in a medical malpractice case. Although the plaintiff properly filed fourteen certificates of merit, she did not timely file a certificate of merit as to one of the defendant physicians. One week after the defendant physician obtained a judgment of non pros, the plaintiff filed a Petition to Open/Strike Judgment of Non Pros and argued, among other things, that the three-step test for relief from a judgment of non pros - which is governed by Rule 3051 of the Pennsylvania Rules of Civil Procedure - was satisfied. The Superior Court agreed, and held that, in this case, the failure to file the final certificate of merit was merely an oversight, which the plaintiff was not aware of until after receipt of the Entry of Judgment on non pros. According to the Superior Court, the excuse offered by the plaintiff was reasonable. The court further held that the plaintiff demonstrated a meritorious cause of action - pursuant to Rule 3051 - because she attached a certificate of merit to her petition. (December 3, 2009)

In Maloney, et al. v. Valley Medical Facilities, Inc., et al., the Supreme Court of Pennsylvania considered whether, under the common law, a plaintiff's release of principals whose potential liability was vicarious also discharges the plaintiff's claims against the agent, regardless of an express reservation of rights. In this case, Plaintiffs sued an internist, a radiologist, and their employing institutions. Plaintiffs subsequently settled with the radiologist. The joint tortfeasor release released "the above named Health Care Providers," and the released health care providers included the internist's employers, but not the internist. The release expressly reserved the right to proceed against the internist. The Superior Court held that all claims against the internist's employers were released, but that the claims against the internist were preserved. The Supreme Court affirmed, holding that in a scenario where the plaintiff releases only vicarious liability claims and expressly preserves claims against an agent, the parties to a settlement should be afforded latitude to effectuate their express intentions. Thus, the release of the principal did not release the agent. To the extent the Superior Court's decision in Pallante holds to the contrary, see Pallante v. Harcourt Brace Jovanovich, Inc., 427 Pa. Super. 371, 377 629 A.2d 146, 149 (1993) ("Given the supreme court's decision that principal and agent are not joint tortfeasors, we conclude that the release of the principal acts as a release of the agent."), the Supreme Court disapproved that holding. (November 24, 2009)

In Liss & Marion, P.C. v. Recordex Acquisition Corp., the Supreme Court of Pennsylvania addressed an alleged violation of the Medical Records Act (MRA). The plaintiff, suing individually and on behalf of its class, alleged that it was overcharged for medical record copying services performed by the defendant with respect to reproducing electronic records. With respect to producing copies of electronic records, the defendant charged the rate that the MRA expressly reserved for microfilm copies. The court held that, while the MRA does not create a private cause of action, its pricing limits are incorporated into a contract that is the subject of a common law breach of contract action. Further, the Supreme Court held that the MRA requires the use of its default rate schedule for all paper copies from any medium other than microfilm, which may still be charged at a higher rate. (November 16, 2009) 

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