Medical Battery Claim Dismissed From Medical Malpractice Case

In the case of Herr v. Myers, No. 30007 of 2023, C.A. (C.P. Lawr. Co. Dec. 4, 2024 Hodge, J.), the court sustained various Preliminary Objections asserted by medical malpractice Defendants.

In this case, the Plaintiff sued certain medical providers under a claim of medical battery arising from post-surgical home health care. According to the Plaintiff, a registered nurse removed his post-surgical wound vac contrary to the instructions of his physicians. The Plaintiff alleged that this removal of the post-surgical wound vac caused complications that required additional treatment and surgery.

The Plaintiff sued the registered nurse and her employer for negligence in medical battery. The Defendants responded with Preliminary Objections, asserting in part, that the Plaintiff’s claims for medical battery was legally insufficient because the Medical Care Availability and Reduction of Error Act (MCARE Act) did not provide a cause of action for medical battery against nurses, who are not responsible for obtaining informed consent. The Defendants also objected to the Plaintiff’s claim for punitive damages.

The court agreed that a nurse is excluded from the definition of a “healthcare provider” who must obtain a patient’s informed consent under both the common law and the MCARE Act.

However, the court noted that the removal of a wound vac did not constitute a surgical procedure and that the wound vac was not classified as a surgical device.

The court also noted that the Defendant healthcare provider who removed the wound vac was a registered nurse rather than a physician or a surgeon and that the registered nurse was, therefore, not required to obtain informed consent when providing routine medical treatment.

Accordingly, the court sustained the Defendants’ Preliminary Objections regarding Plaintiff’s claim for medical battery and struck this claim from the Complaint.

The court also found that the Plaintiff’s claims for punitive damages were legal insufficient as the Plaintiff’s Complaint only stated facts sufficient to assert a claim of negligence. The court found that the alleged facts were not sufficient to demonstrate a level of recklessness necessary to support an award of punitive damages. As such, the punitive damages claims was also stricken.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 6, 2025).

Superior Court Addresses Issues of Informed Consent in Medical Malpractice Cases

In the case of McAleer v. Geisinger Medical Center, No. 1542 MDA 2023 (Pa. Super. Jan. 28, 2025 Panella, P.J.E., Lane, J., and Steven, P.J.E.) (Op. by Panella P.J.E.), the court reversed a trial court’s entry of summary judgment in favor of the Defendants in a medical malpractice action.

According to the Opinion, the Plaintiffs alleged that a Defendant doctor performed a surgical procedure that was not indicated according to the standard of care.

The trial court granted summary judgment after the Defendants had argued that the only claims that were supported by the Plaintiff's experts were those concerning informed consent surgery.  The Defendants asserted that the Plaintiff had not pled informed consent claims against the Defendants.

The Superior Court noted that, essentially, the trial court had concluded that the Plaintiff's claims were in the form of a batter involving lack of informed consent regarding the surgery and treatment, and not negligence, and, on that basis, the trial court had entered summary judgment.

In reviewing the case before it, the Superior Court found issues of fact that precluded the entry of summary judgment and remanded the case for further proceedings.   

As part of its decision, the appellate court directed the trial court to revisit its determination that a gastroenterologist was to qualified to render an expert opinion on the care provided by a colorectal surgeon.  The trial court was advised to review the section of the MCARE Act outlining qualificatons of experts in medical malpractice cases as found under 40 Pa.C.S.A. Section 1303.512 ("Section 512").

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Feb. 18, 2025).

Trial Court Addresses John Doe Allegations and Informed Consent Claims in Medical Malpractice Case

In the case of Meisse v. Cohan, No. 1821-CV-2022 (C.P. Monroe. Co. March 24, 2023 Higgins, J.), the court sustained in part and overruled in part Preliminary Objections in a medical malpractice action.

According to the Opinion, Plaintiff’s decedent was treated by the Defendant physician for symptoms related to Crohn’s Disease.

The Defendant physician allegedly prescribed the decedent medicine but allegedly never sought to perform tests to determine if the medication was appropriate for the decedent. The decedent died thereafter, allegedly from liver failure.

The decedent’s estate filed this lawsuit and the Defendant filed Preliminary Objections.

In part, the Defendant objected to the “Doe” designations in the Plaintiff’s Complaint on the grounds that the Plaintiff failed to maintain the action against Doe Defendants in compliance with Pa. R.C.P. 2005(b) because that rule mandates that a factual description of each unknown Defendant be provided, which was not done in this case.

The Plaintiff asserted that the identities of the Doe Defendants could be revealed through discovery.

Although the court noted that the Plaintiff lacked factual descriptions about the Doe Defendants because that information was within the Defendant’s control, the court nevertheless held that that Rule 2005 prohibits the use of a class of Defendants as a placeholder or a catch-all category. As such, these Preliminary Objections of the Defendants were sustained.

The court additionally sustained Preliminary Objections asserted by the Defendant under which it was argued that the Plaintiff failed to adequately plead claims against associated cooperations. The court found that, although the Defendant was on reasonable notice of the claims against them in the periods of treatment, the Plaintiff had still failed to identify the corporations and had, instead, similarly used a catch-all category. As such, these objections were sustained as well.

The court sustained the Defendant’s Preliminary Objection asserted that corporate negligent claims should be pled in a separate count under Pa. R.C.P. 1020(a).

Judge Higgins did overrule the Defendant’s Preliminary Objections to the Plaintiff’s inclusion of a claim of informed consent in the Complaint.

The court noted that Pennsylvania law typically holds that doctors must obtain informed consent prior to performing surgical or operative procedures. However, to maintain a cause of action under 40 P.S §1303.504, Plaintiff must allege a failure arising from one of the following: surgery, anesthesia, the administration of radiation or chemotherapy, the administration of a blood transfusion, the insertion of a surgical device, or the administration of an experimental medication device.

Given that the Plaintiff had referred to experimental treatment in her Brief in Opposition to the Preliminary Objections, the court overruled this objection of the Defendant.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 25, 2023).

Lack of Informed Consent Claim Dismissed

In the case of Fritz v. BNG Aesthetics, LLC, No. CV-20-0553 (C.P. Lycoming Co. Oct. 28, 2020 Linhardt, J.), the court granted a Defendant’s Preliminary Objections to a Plaintiff’s medical malpractice claim of a lack of informed consent relative to a laser procedure to treat the Plaintiff’s vision issues. 

The court ruled that the Plaintiff’s lack of informed consent claim against the Defendant doctor lacked the specificity required to establish that the doctor not only provided her with negligent treatment but also knowingly provided her with a different treatment than had been discussed with the Plaintiff.

The court noted that a claim for informed consent is treated as a “technical battery” under Pennsylvania law due to an unwanted testing.

Since the court found that the Plaintiff’s lack of consent/negligence claim was not properly pled, the court did not delve into the validity of the claim for punitive damages.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 22, 2020).

Source of Image:  Karolina Growbaska on www.pexels.com

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.

Evidence of Risks and Complications of Surgery Allowed in Med Mal Cases

A notable medical malpractice decision was recently handed down by the Pennsylvania Supreme Court.  

In the case of Mitchell v. Shikora, No. 55 WAP 2017 (Pa. June 18, 2019) (majority Op. by Todd J.) (Wecht, J., concurring) (Donohue, J., concurring and dissenting), the court ruled that evidence of risk and complications of surgery may be admissible in a medical negligence trial since such evidence is relevant and admissible regarding the proper standard of care and whether there was a breach of that standard of care.  

This matter arose out of a medical malpractice action in which the Plaintiff alleged negligence on the part of a surgeon during the course of a laparoscopic hysterectomy.  

Prior to trial, the Plaintiff filed a Motion In Limine to exclude evidence of her informed consent about the risks and complications of the surgery, which included the very situation that arose during the course of the surgery in this matter.   The court denied the motion with respect to the very situation that was at issue in this case.

At trial, the Defendants presented testimony that the event that occurred during the course of the surgery was a recognized risk or complication of the overall surgery.   The jury returned a defense verdict.  

On appeal, the Superior Court had reversed and remanded the case for a new trial under a rationale that, in a malpractice action only alleging negligence and not lack of informed consent, evidence that a patient consented to an operation despite the advised risks was irrelevant and inadmissible.  The Superior Court had also found that the admission of this evidence was prejudicial.  

As noted, the Pennsylvania Supreme Court ruled otherwise and held that evidence of risk and complications of surgery was indeed admissible in a medical negligence claim to establish the applicable standard of care and to show that the physician’s conduct complied with that standard.  As such, the defense verdict was reinstated.  

The Majority Opinion of the Supreme Court can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

Justice Donohue's Concurring and Dissenting Opinion can be viewed HERE.

Source: “Court Summaries” By Timothy L. Clawges in the Pennsylvania Bar News (July 15, 2019).  

PA Supreme Court Holds That Evidence of Informed Consent Not Always Admissible in Med Mal Context

In the medical malpractice case of Brady v. Urbas, No. 74 MAP 2014 (Pa.  March 25, 2015)(Op. by Saylor, C.J.), the Pennsylvania Supreme Court ruled that evidence that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence. 

In other words, the Court ruled that evidence of informed consent is irrelevant in a medical malpractice case in which there is no allegations presented specifically with respect to informed consent.

The rationale is that the simple fact that a patient was aware of the risks of the treatment prior to agreeing to undergo the same is not a defense against a medical provider's allegedly negligent conduct.

This case can be read online HERE.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.