Tuesday, September 1, 2020

Lackawanna County Court Addresses Motions in Limine in Podiatric Malpractice Claim


In the case of Latka v. Rieder, No. 19-CV-2078 (C.P. Lacka. Co. Aug. 14, 2020 Nealon, J.), the court addressed issues of allowable proof in a medical malpractice action. 

According to the Opinion, the Plaintiff was bringing this malpractice action against a podiatrist who surgically removed a bone spur from the Plaintiff’s big toe. The Plaintiff asserted that the podiatrist was negligent for recommending and performing that surgery instead of treating the Plaintiff conservatively. The Plaintiff also alleged that the podiatrist was negligent in failing to timely diagnose and properly treat a post-surgical infection which allegedly then caused the Plaintiff to undergo a partial amputation of her big toe. 

The Plaintiff filed a Motion In Limine to preclude the defense from mentioning that infection as a recognized risk of the surgery in question given that the Plaintiff was only advancing negligence claims and not pursing a claim for lack of informed consent. 

Judge Nealon noted that, in a medical malpractice care, evidence that the patient was advised of certain risks of the procedure and still consented to proceed with the surgery is “irrelevant and inadmissible, but evidence of risk and complications that are relevant in establishing the standard of care may be admissible.” 

The court more specifically noted that, evidence that the podiatrist discussed poor healing and bone infection as possible complications of the surgery, and that the Plaintiff chose to undergo the surgery despite being advised of those risks, is clearly inadmissible. However, to the extent that the infection was a recognized complication of the surgery and that the podiatrist considered those risks in making his decision to recommend and perform the surgery, such “risks and complications” evidence is relevant in demonstrating the applicable standard of care. 

As such, Judge Nealon granted the Plaintiff’s Motion In Limine to preclude any informed consent evidence, but denied the motion with respect to any risks and complications evidence that is relevant to the governing standard of care. 

The podiatrist Defendant also filed a Motion In Limine.  The Defendant sought to prevent the Plaintiff from presenting evidence of his alleged failure to document his physical findings in his office chart on the grounds for a cause of action for negligent documentation does not exist in Pennsylvania. 

The court denied the Defendant’s motion to preclude the Plaintiff from presenting evidence regarding the podiatrist’s failure to document given that the Defendant had a professional responsibility to maintain accurate and complete documentation of his treatment of the Plaintiff and given that the podiatrist’s physical examination of the Plaintiff on the date that her recommended surgery is relevant to whether the podiatrist was negligent in recommending that surgery. 

As such, the court noted that the Plaintiff’s podiatric expert would be permitted to testify that the Defendant podiatrist failed to document a complete physical examination such that the Plaintiff’s expert was concluding that the podiatrist did not perform the required examination given that it is not reflected in the office notes. The Plaintiff’s expert would also be permitted to testify that, absent the required examination, the podiatrist was negligent in recommending and performing surgery in the Plaintiff’s expert opinion. 

The court also noted that the Defendant podiatrist may be questioned as to what is and what is not documented in his records. 

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

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