Friday, September 30, 2016

Judge Nealon Addresses Two Schools of Thought Defense in Med Mal Case

In his recent decision in the case of Cosklo v. Moses Taylor Hospital,, No. 2007-C-5484 (C.P. Lacka. Co. Sept. 23, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s Motion to Amend its Answer and New Matter to the Plaintiff’s Complaint.  

According to the Opinion, the Defendant filed this Motion after the completion of discovery, the production of the parties’ expert reports, and the establishment of a date certain for trial.   The Defendant sought leave of court under Pa. R.C.P. 1033 to amend his responsive pleading to assert the “two schools of thought” doctrine as an affirmative defense and to pursue a crossclaim against the Co-Defendants in this obstetrical malpractice action.  

Judge Nealon noted that, under the Rules of Civil Procedure and applicable Pennsylvania law, the amendment of a pleading should be liberally allowed by the court unless it will cause unfair prejudice to an adverse party or the proposed amendment would be against a rule of law such that the parties seeking to amend will be unable to state a cognizable claim or defense based upon the amendment.

The court noted that the “two schools of thought” defense is available to a physician at trial only if there is expert evidence that a considerable number of recognized and respected physicians support the course of treatment that was provided by the defendant.  

Reviewing the record before him, Judge Nealon noted that the defense expert’s report did not provide notice to the Plaintiffs that the expert will claim that the medical care which the Defendant physician chose to provide is advocated by a considerable number of recognized and respected obstetricians.   Accordingly, the court noted that any “two schools of thought” evidence would be subject to being precluded under Pa. R.C.P. 4003.5(c).  

Consequently, the court ruled that, since the Motion to Amend was presented after the deadline for the production of expert reports, and given that the Defendant physician is presently unable to assert a “two schools of thought” defense based upon the existing record, the Motion to Amend seeking to raise that defense was found to be against rule of law and was, therefore, denied.  

However, the court further ruled that, since the Co-Defendants had not identified any prejudice that they would suffer from the belated assertion of this type of a crossclaim, the Motion to Amend was granted to the extent that it sought to assert a crossclaim against the Co-Defendants. 

Anyone wishing to review a copy of this decision may click this LINK.

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