Trial Court Gives Lessons on Medical Malpractice Complaint Drafting

In the case of Dawes v. The Williamsport Home, No. 2025-CV-00381 (C.P. Lyc. Co. June 6, 2025 Carlucci, J.), the court granted in part and denied in part Preliminary Objections filed against a Plaintiff’s claim in a medical malpractice case arising out of alleged negligent care regarding the Plaintiff’s thoracic surgical wound.

According to the Opinion, the court denied the Defendant’s demurrer to the Plaintiffs’ claim for punitive damages but still directed the Plaintiff to file an Amended Complaint which either deletes any claim for punitive damages or sets forth sufficient material allegations in support of the same.

Relative to any claims against any agents or employees of the medical Defendants the court directed that the Plaintiff’s Amended Complaint should limit allegations regarding the acts or omissions by a Defendant or its agent or employees to that conduct that the Plaintiff contends was a substantial factor in causing the Plaintiff’s injuries. In this regard, the court directed the Plaintiff to not include any extraneous allegations not pertinent to the causation issues. 

The court also required the Plaintiff to provide additional factual support and allegations on the claims for corporate liability.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (Aug. 7, 2025).

Court Refuses to Strike a Discontinuance Entered in a Medical Malpractice Case

In the case of Eubank v. Ing, Nov. Term, 2023, No. 0926 (C.P. Phila. Co. Feb. 7, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s denial of a Plaintiff’s Motion to Strike a Discontinuance that was filed in a medical malpractice action.

According to the Opinion, the Plaintiff alleged that his former attorney acted without the Plaintiff’s understanding or consent when the attorney filed the Discontinuance.

However, evidence was produced from the former attorney that specifically confirmed that the Plaintiff gave authorization to the former attorney to discontinue the matter.

Accordingly, the trial court concluded that the Discontinuance was not filed without the Plaintiff’s consent. The court also found that there were no grounds to support any finding of any confusion or misunderstanding by the Plaintiff about what was taken place relative to the filing of the Discontinuance.

The court ruled that, where a party fails to show that the entry of a Discontinuance with the result of fraud, imposition, or mistake, it is not an abuse of discretion by the trial court to deny a Petition to Strike a Discontinuance.

Moreover, the trial court noted that the Plaintiff commenced the lawsuit within the two (2) year statute of limitations but then discontinued the matter. It was noted that the Plaintiff’s Petition to Strike the Discontinuance was not filed until after the expiration of statute of limitations. The court found this to be an additional reason for the Superior Court to find that there was no abuse of discretion by the trial court to deny the Plaintiff’s request to reopen the matter.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (June 11, 2025).

Source of image:  Photo by Wesley Tingey on www.unsplash.com.  

Trial Court Grants Motion to Bifurcate Compensatory and Punitive Damages Phases of Medical Malpractice Trial

In the case of Leber v. Frattali, No. 2023-CV-1442 (C.P. Lacka. Co. 2025 Powell, J.), the court addressed a Plaintiff’s Motion to Bifurcate the trial of a medical malpractice and wrongful death case into separate trials, one for the liability and compensatory damages aspect of the case, and whether the Defendants acted with reckless indifference, and a second trial relative to the amount of any punitive damages that should be awarded.

Judge Mark Powell disagreed with the defense argument that the issues were too interwoven and that bifurcation would cause prejudice.

Relying upon Pa. R.C.P. 213(b), the court exercised its discretion to bifurcate after finding that bifurcation served the issues of convenience, the avoidance of prejudice, and the promotion of the efficiency of the proceedings.

The court found that the bifurcation of the trial as requested by the Plaintiff would promote judicial economy and would avoid the prejudicial introduction of the Defendants’ financial condition during the compensatory phase of the case. The court also therefore found that a bifurcation of the trial would allow for a more orderly presentation of the evidence.

Judge Powell also emphasized that bifurcation under the circumstances presented was reasonable, facilitated potential settlement talks, would realize cost savings, and promoted the issue of fairness. As such, the Motion to Bifurcate was granted.

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

Trial Court Requests Superior Court To Grant New Trial in Medical Malpractice Case Due, in Part, To Juror Accessing Plaintiff's Attorney's LinkedIn Profile

In the case of Hernandez v. Temple University Hospital, Oct. Term, 2021, No. 01422 (C.P. Phila. Co. March 21, 2025 Hill, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s ordering of a new trial at the request of the hospital Defendants in a medical malpractice action for various reasons.

According to the Opinion, this matter involved a Plaintiff who was shot in the neck at a party and then received treatment at various medical facilities. At some point, after extensive treatment, the injured party was discharged.

The Plaintiff then had mashed potatoes with a meal at home and developed difficulty breathing. He was brought to an emergency room in cardiac arrest.

There was a clinical presentation of the patient as being consisted with airway occlusion caused by eating thick foods.

The Plaintiff alleged various physical and traumatic brain injury as a result.

Of note, the court in this Opinion urged the Superior Court to dismiss the cross motions of the parties after the trial court had granted the hospital’s Motion for a New Trial, in part, because the court and counsel had discovered, after the jury trial had concluded, that one of the jurors had accessed the LinkedIn profile of the Plaintiff’s attorney during trial, which action violated the court’s instructions to the jurors.

The court noted that jurors may not consider information secured outside that information that was presented during trial and that is beyond a juror’s common knowledge. The court also noted that jurors are not permitted to contact counsel during the course of the trial.

The trial court found that a new trial was warranted when there was a reasonably likelihood of prejudice and when the harmlessness of such contact is not shown.

Given that this information about the juror accessing the Plaintiff’s attorney’s social media was not known to the court or counsel until after the verdict was rendered, it was not possible for the court to inquire what, if any, information that juror had learned from the LinkedIn page or what, if any, effect this information may have had over the jury deliberations.

The court found that this basis, alone, was sufficient to support the granting of the hospital’s request for a new trial.

The court addressed other issues in its Opinion as well.

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

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (July 23, 2025).

Superior Court Addresses Issues Raised With Respect to Verdict Slip in Med Mal Case

In the case of Hagans v. Hospital of the University of Pennsylvania, No. 536 EDA 2024 (Pa. Super. July 10, 2025 Stabile, J., McLaughlin, J., and Lane, J.) (Op. by McLaughlin, J.), the Pennsylvania Superior Court affirmed the trial court’s rulings relative to a medical malpractice action. The appellate court upheld the trial court’s denial of the medical Defendant’s Motion for Judgment Notwithstanding the Verdict, relative to certain evidentiary rulings, and also upheld the trial court’s rulings related to the Verdict Slip.

This action arose out of alleged medical malpractice related to the birth of the Plaintiff’s child.

Of note, the Superior Court upheld the verdict in favor of the Plaintiffs in this action where the jury’s Verdict Slip demonstrated that it found at least one individual medical provider liable and where the Defendants consistently acknowledged that all providers worked together as a single care team relative to the treatment provided.

The hospital Defendant argued that the Verdict Slip should have been required to ask the jury to evaluate the negligence of each individual Defendant. The defense argued that the Plaintiff bore the burden of proof as to whether each Defendant’s conduct fell below the standard of care. The trial court rejected the hospital’s arguments and affirmed the judgment during post-trial proceeds.

On appeal, the appellate court noted that the review of the Verdict Slip confirmed that the jury found at least one individual Defendant liable for the harm such that there was sufficient evidence to establish the hospital Defendant’s vicarious liability.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (July 31, 2025).

Superior Court Rules that Forum Selection Clause in Informed Consent Form is Enforceable in Medical Malpractice Cases

In the medical malpractice case of Somerlot v. Jung, No. 2578-EDA-2024 (Pa. Super. July 30, 2025 Lazarus, P.J., Kunselman, J., and King, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court affirmed the validity of forum selection clauses in informed consent forms.

According to the Opinion, in this personal injury action, the Plaintiff had undergone treatment with certain medical providers and, under the contract entered into with those medical providers, the Plaintiff agreed that any litigation would be pursued solely in Bucks County.

Yet, the Plaintiff brought this personal injury lawsuit in Philadelphia County.  The medical Defendant filed Preliminary Objections asserting improper venue.

The Superior Court affirmed the decision of the Philadelphia County Court of Common Pleas transferring the case to Bucks County based upon the forum selection clause.

The Superior Court upheld the general principle of contract law that the parties are free to pre-select among all possible proper venues as to which venue would be utilized to decide any legal disputes that might arise between them. Accordingly, the Superior Court affirmed the lower court’s decision.

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

Source of image:  Photo by Etactics Inc. on www.unsplash.com.

Superior Court Addresses Discoverability of Documents Under Patient Safety and Healthcare Quality Improvement Act in a Med Mal Case

In the case of Boyle v. Mainline Health, Inc., No. 2454 EDA 2023 (Pa. Super. July 17, 2025 Lazarus, P.J., King, J., and Lane, J.) (Lane, J., Concurring and dissenting)(Maj. Op. by King, J.), the Superior Court ruled that reports created for the hospital’s patient safety organization constituted “deliberation or analysis of” the patient safety evaluation system. As such, the court ruled that these reports were privileged under the Patient Safety and Healthcare Quality Improvement Act. 

This case arose out of a medical malpractice lawsuit by the Plaintiffs seeking compensation for birth injuries sustained by their child.

During the course of discovery, the Defendants produced a privilege log regarding certain documents. The Plaintiff followed a discovery motion in response. The trial court granted the Plaintiff’s Motion.

On appeal, the Superior Court affirmed in part and reversed in part. As part of the ruling, the Superior Court noted that the Defendants had a patient safety plan, which established a patient safety committee under MCARE.

The court found other documents that were not privileged given that those documents did not arise from a matter reviewed by the patient safety committee.

However, noted above, the court did find that certain other documents fell within the scope of the statutory privilege provided under the Patient Safety and Healthcare Quality Improvement Act.

Anyone wishing to review a copy of this decision may click this LINK. The concurring and dissenting Opinion issued by Judge Lane can be viewed HERE.


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Aug. 6, 2025).

Judge Powell of Lackawanna County Rules on Medical Practice Pleading Isssues

In the case of Menon v. Geisinger Wyoming Valley Medical Center, No. 2024-CV-7436 (C.P. Lacka. Co. June 23, 2025, Powell, J.), Judge Mark Powell of the Lackawanna County Court of Common Pleas overruled various Preliminary Objections filed by the different medical Defendants to the Plaintiff’s medical malpractice Complaint.

This medical malpractice action arose from the death of a full-term newborn baby.

Relative to the Plaintiff’s claims of negligent infliction of emotional distress related to alleged negligent care during the late pregnancy stage and the delivery, the Defendants filed a demurrer. The Defendants asserted that the Plaintiffs failed to allege a contemporaneous sensory perception of the harm-producing event as required under Sinn v. Burd and Bloom v. Regional Medical Center.

The court disagreed and ruled that the Plaintiffs sufficiently pled a continuous traumatic sequence of events that included direct observation of the newborn’s distress and death. The court cited to the case of Neff v. Lasso, for the proposition that concept of sensory perception in this context under Pennsylvania law is not limited to visual observation but also includes awareness through experience and presence.

Judge Powell also overruled the Defendants’ objections regarding the lack of specificity with respect to the allegations of negligence and agency claims contained in the Complaint. The court held that, under Pennsylvania’s fact-pleading standard, Plaintiffs are not required to identify every employee and are not required to site specific hospital policies at issue at the pleadings stage.

Rather, the court found that, in this case, the Plaintiffs’ detailed allegations provided the Defendants with adequate notice of the claims presented. The court noted that the identity of unnamed agents could be ascertained through discovery efforts.

In this regard, the court emphasized that, in medical malpractice cases, Defendants typically control the relevant records and personnel information.

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

Source: Lackawanna Jurist, Vol. 126, No. 27 (July 4, 2025).

Court Addresses Medical Charting Issues in a Medical Malpractice Case

In the case of Creech v. Piotr F. Zembrzuski, No. 2024-CV-9004 (C.P. Lacka. Co. July 21, 2025, Nealon, J.), the court overruled Preliminary Objections filed against a medical malpractice Complaint in a wrongful death litigation.

According to the Opinion, a mother commenced this lawsuit against various healthcare providers for treating her daughter. The mother alleges that the healthcare providers failed to timely and properly diagnose the Plaintiff’s decedent’s deteriorating medical conditions.

According to the Opinion, the Plaintiff-mother asserted, among other claims, that the healthcare providers failed to timely and appropriate document the daughter’s findings and that their violation of the medical records documentation obligation prevented the mother from identifying in the Complaint each hospital agent who allegedly negligently treated the daughter.

The hospital Defendants filed a demurrer to the medical record charting allegations on the ground that the mother did not cite any statute, regulation, or other law that was allegedly violated or that supported the imposition of civil liability for untimely or inadequate medical entries.

The medical providers also sought to dismiss one hospital Defendant on the basis that it was merely a holding company which cannot be liable unless the mother pierced the corporate veil.

The court overruled the Preliminary Objections.

Judge Nealon noted that, under Pennsylvania law, physicians are obligated to make timely entries in a patient’s medical record that accurately, legibly, and completely reflect specific information regarding patient evaluation and treatment. The court noted that those charting requirements have been recognized as establishing standards of care and conduct for physician.

Accordingly, the court found that the mother’s allegations related to the hospital Defendants’ alleged violations of those medical records documentation standards were relevant to the Plaintiff’s negligent claims.

With regard to the claim against the alleged holding company, the court ruled that the mother had specifically alleged that the alleged holding company owned and operated the subject hospitals, employed the physicians and other professionals who treated the decedent, and provided medical care and services to the decedent.

Under the standard of review that requires the court to accept the Plaintiff’s factual allegations as true, and which prohibits the hospital Defendants from presenting a speaking demurrer, the court held that the Defendant’s Preliminary Objections should be overruled.

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

Superior Court Upholds a Forum Selection Clause Found in Consent To Treatment Form in Medical Malpractice Case

In the medical malpractice case of Somerlot v. Jung, No. 2578-EDA-2024 (Pa. Super. July 30, 2025 Lazarus, P.J., Kunselman, J., and King, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court affirmed the validity of forum selection clauses in a medical consent form.

According to the Opinion, in this personal injury action, the Plaintiff had undergone treatment with certain medical providers and, under the contract entered into with those medical providers, the Plaintiff agreed that any litigation would be pursued solely in Bucks County.

The Plaintiff brought this personal injury lawsuit in Philadelphia County.

The Superior Court affirmed the decision of the Philadelphia County Court transferring the case to Bucks County based upon the forum selection clause.

The Superior Court upheld the general principle of contract law that the parties are free to pre-select among all possible proper venues as to which venue would be utilized to decide any legal disputes that might arise between them. Accordingly, the Superior Court affirmed the lower court’s decision.

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

Article: The Appellate Ladder Looks Inviting For Plaintiffs

The below article of mine appeared in the July 24, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion

The Appellate Ladder Looks Inviting for Plaintiffs


July 24, 2025

By

Daniel E. Cummins

Recent decisions from the Pennsylvania Supreme confirm that plaintiffs continue to a pendulum shift in their favor. Over the past year, the Pennsylvania Supreme Court was beginning to show signs of moderation relative to their previous line of trailblazing decisions that overturned years of precedent in a plaintiff-favorable manner.

However, with its recent decisions, the Pennsylvania Supreme Court has again expanded the rights of injured parties to recover and have even telegraphed to the plaintiffs bar how to secure additional victories in the future.

Recent Decisions by Pa. Supreme Court to Expand Ability to Recover

For nearly the past decade, the Pennsylvania Supreme Court has issued one decision after another in favor of plaintiffs' causes. The plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court overruled the then-12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Prior to Cagey, PennDOT was largely protected from any liability exposure relative to accidents involving guide rails. This decision expanded the ability of parties injured in highway accidents to include PennDOT in the lawsuit in the effort to seek an additional compensation.

In 2018, the Pennsylvania Supreme Court also expanded the ability of injured parties to seek recoveries by handing down another significant reversal of long-standing precedent. In the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court liberalized the ability of injured parties to seek recoveries from governmental agencies.

The Supreme Court in Balentine overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). This ruling expanded the number of cases that would therefore fall within the scope of the exception to immunity. In other words, the ruling by the Pennsylvania Supreme Court allows more injured parties to seek a recovery against negligent governmental agencies.

A recent example of the Pennsylvania Supreme Court actually going too far in overturning long-standing defense-favorable precedent can be seen in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019). In Gallagher, the Pennsylvania Supreme Court overturned 20 years of precedent and held that the household exclusion found under automobile insurance policies was completely unenforceable as a matter of law across the board.

The Pennsylvania Supreme Court reiterated its plaintiffs-friendly stance on the household exclusion in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021). In Donovan, the court reaffirmed its previous decision in Gallagher v. GEICO and again held that plaintiffs need not worry about the household exclusion provision as it was invalid and, therefore, unenforceable.

The Gallagher decision threw the lower state and federal courts into a tizzy of conflicting decisions on whether the household exclusion should still be found to be enforceable under different factual scenarios.

Thereafter, without overtly acknowledging that the Gallagher decision went too far, the Pennsylvania Supreme Court walked back Gallagher’s complete eradication of the enforceability of the household exclusion in the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, the Pennsylvania Supreme Court limited the Gallagher decision to its facts and agreed that the household exclusion did indeed remain valid and enforceable in at least certain circumstances.

The Pennsylvania Supreme Court also recently expanded the right of injured parties to recover in arbitration matters. In 2022, the court promulgated a new Rule that amended Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings. Under the new Rule 1311.1, the Pennsylvania Supreme Court increased the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” In most counties in Pennsylvania, the arbitration jurisdictional limit is $50,000. As such, the Pennsylvania Supreme Court essentially doubled the amount of money injured parties can potentially recover at trials following an appeal from an arbitration.

Recent Decisions That Limited Certain Defenses

In recent years, in addition to expanding avenues of recoveries for injured parties, the Pennsylvania Supreme Court has also benefited plaintiffs by limiting the scope of a wide variety of defenses in civil litigation matters.

In the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs were successful in convincing the Pennsylvania Supreme Court to limit the application of the sudden emergency doctrine. With this decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly where a plaintiff darts out within a crosswalk.

The Pennsylvania Supreme Court has also limited venue defenses by liberalizing the rules governing where a plaintiff may file their lawsuit.

In another the limitation of venue defenses, the Pennsylvania Supreme Court, in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the Pennsylvania Supreme Court ruled that, given that the internet is available essentially everywhere, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file such claims in the most liberal courts in Pennsylvania if they deem that appropriate.

Back in 2022, the Pennsylvania Supreme Court undid a 20-year-old Rule of Civil Procedure and approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, plaintiffs now have wider options in terms of where they can file their medical malpractice lawsuits.

Hints at Moderation

In three recent decisions, all of which were expected to result in plaintiffs-favorable rulings, the Pennsylvania Supreme Court somewhat surprisingly went the other way.

As noted above, in the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court limited its previous decision in Gallagher v. GEICO on the household exclusion to the facts of that case. The court in Mione instead held that the household exclusion could still be enforced under limited circumstances.

Another example of a recent Pennsylvania Supreme Court decision that seemed to signal moderation was the case of first impression of Franks v. State Farm Mutual Automobile Insurance, ___ A.3d ___ No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.). In Franks, the court addressed issues of the stacking of UIM coverage in the automobile insurance personal injury actions. The court ruled that an insurance company is not required to secure another written waiver of stacked coverage from an insured in certain circumstances and rejected the plaintiff’s argument to the contrary.

Also, in a 2024 decision that was surprising to some, the Pennsylvania Supreme Court upheld the continuing validity of the regular use exclusion in the case of Rush v. Erie Insurance Exchange, ___ A.3d ___, 77 MAP 2023 (Pa. 2024).

Not So Fast

Despite hints at moderation, other recent cases again confirm that the overall orientation of the Pennsylvania Supreme Court is to favor plaintiff’s causes in most civil litigation matters.

This is confirmed, in part, by the court’s decision in the case of Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). With this decision, the Pennsylvania Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained at a construction site. The court in Brown allowed such claims to be brought even if the contractor had completed his or her work on the property years before.

Also, in its recent decision in the case of Steets v. Celebration Fireworks (Workers' Compensation Appeals Board), No. 3 MAP 2024 (Pa. May 30, 2025), the Pennsylvania Supreme Court overturned decades of precedent regarding whether specific loss benefits are payable after an employee’s death from causes related to a work injury. In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect specific loss benefits.

Then, just last month, in the case of Jakmian v. City of Philadelphia, No. 266 EAL 2024 (Pa. June 11, 2025), the Pennsylvania Supreme Court denied an allowance of an appeal in a civil litigation matter, but Justice Kevin Dougherty issued a concurring opinion that invited plaintiffs to attempt to bring issues regarding the analysis of an exception to sovereign immunity back up the appellate ladder again so that the court could properly review the law on this topic.

In Jakmian, the plaintiff suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that had been out of use for decades. The claims presented raised issues related to applicability of the real estate exception to the Sovereign Immunity Act.

In his concurring opinion, Dougherty seemed to signal that, if the issue were properly before the court, he would have ruled in a fashion that favored the injured party. However, he felt “constrained to agree that an allowance of an appeal is not warranted here.” Yet, Dougherty also wrote “nevertheless, I note my future willingness to explore the issues implicated herein if they arise in a more appropriate case.”

In the end, a review of recent jurisprudence in Pennsylvania confirms that the Pennsylvania Supreme Court is not only routinely ruling in favor of plaintiff’s causes but also seemingly inviting the plaintiffs bar to bring more issues up the appellate ladder for the court to consider. Now’s the time for the plaintiffs bar to get whatever important issues they can up to the Supreme Court as often as they can so as to make “good” law. Now is also the time for the defense bar and the carriers to resolve as many of those cases before they reach the Pennsylvania Supreme Court so as to avoid the creation of “bad” law.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.

Reprinted with permission from the July 24, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Decision Drives Home Importance of Preserving Objections and Issues for Appeal

In its non-precedential decision in the case of Munoz v. Children’s Hospital of Phila., 1388 EDA 2024 (Pa. Super. May 27, 2025 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of post-trial motions following a medical malpractice verdict in the amount of over $11.5 million dollars in favor of the Plaintiff.

Of note, the court ruled that a prior waiver of a preservation of an issue cannot be overcome by the trial court later addressing a waived issue in response to post-trial motions.

In this matter, the court ruled that, even though the Defendant hospital had not physically taken over the care of the decedent, who was still at a different facility, the Defendant hospital had funtionally done so by instructing the other facility’s staff on treatment measures. The Superior Court found that this was sufficient to create an assumed duty under the Restatement (Second) of Torts §323.

The weight of the evidence claimed was found to have been waived by the defense by the failure of the defense to specifically identify the challenges to the weight of the evidence in the Defendant’s Rule 1925(b) statement.

The Superior Court additionally noted that, relative to the Plaintiffs’ emotional outbursts during the course of the trial, the Defendant neither asked for a curative instruction or a mistrial.  As such, that issue was deemed to have been waived as well.

Lastly, the court on appeal ruled that the $14 million dollar verdict was not excessive under the facts presented.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Commentary:  This decision reminds one of the importance of making sure all issues for appeal are preserved on the record.  

Issues that one wishes to take up on appeal should be repeatedly preserved during the pre-trial course of the matter and again at trial and again during the post-trial proceedings wherever possible and even if the issues were previously preserved.  Repeatedly confirm on the record, at every stage of the matter, that objections are continuing and that issues are being preserved for appeal.  

Don't worry about irking the trial court judge with repeated statements of a preservation of an issue for appeal by objection or otherwise.  Just keep going to bat for your client.

Keep in mind that trial court judges and appellate court judges will proactively look for opportunities to rule that an issue has been waived as part of their effort to avoid having to address an issue which may, in the end, require a matter to be tried all over again.

An attorney owes it to his or her client, and to herself or himself (in an effort to avoid any claims of legal malpractice), to repeatedly state on the record at every stage of the proceeding that you are preserving an objection or an issue for appeal so that there can be no finding by any judge that the issue has been waived. 

Court Applies Forum Selection Clause Contained in Pre-Surgery Consent Form To Transfer Medical Malpractice Case Out of Philadelphia Venue to Bucks County

In the case of Somerlot v. Jung, Sept. Term 2023, No. 3138 (C.P. Phila. Co. Nov. 25, 2024 Bright, J.), the trial court issued a Rule 1925 Opinion requesting the Pennsylvania Superior Court to uphold the Philadelphia County trial court’s decision to transfer a medical malpractice case from Philadelphia County to Bucks County.

According to the Opinion, this matter arose out of an alleged medical malpractice claim related to a surgery that was rendered in Bucks County to a Bucks County resident Plaintiff by a Bucks County physician/medical practice.

The court based its decision on transferring the case from Philadelphia County to Bucks County on a valid forum selection clause that was contained in a pre-surgery consent form executed by the Plaintiff.

The Plaintiff pointed to the fact that one of the Defendants, a medical device manufacturer, had previously stipulated with the Plaintiffs that venue was proper in Philadelphia as to that Defendant. However, the trial court noted that the propriety of venue in Philadelphia was not dispositive based on the fact that a Defendant had previously stipulated to venue in Philadelphia. 

Here, the court noted that the injured Plaintiff had contracted to litigate in a different, but also proper venue when the Plaintiff executed the consent form. The trial court held that it was giving preference to the Plaintiffs’ original choice of forum, as reflected in the executed consent form. 

The court additionally noted that litigating the entire case in Bucks County would void splitting the case just as effectively as reversing the transfer of moving the matter back to Philadelphia as was requested by the Plaintiffs. 

The trial court additionally stated that there were no exceptional circumstances present in this case that would warrant straying from the general principle that a valid forum selection clause is to be honored by the courts.

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 27, 2025).

Superior Court Overturns Med Mal Defense Verdict Based on Erroneous Evidentiary Rulings by Trial Court

In the case of Hagelauer v. Mainline Emergency Medicine Associates, LLC, No. 2064 EDA 2024 (Pa. Super. June 2, 2025 Panella, P.J.E., Beck, J., and Ford Elliot, P.J.E.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court addressed various issues raised following the entry of a defense verdict in a medical malpractice case.

According to the Opinion, the allegations pertained to the treatment, or lack thereof, relative to a deceased Plaintiff who suffered cardiac arrest.

The Pennsylvania Superior Court overruled the defense verdict based upon a finding, in part, that the trial court had improperly barred the Plaintiffs from cross-examining the Defendants’ expert about an article that the expert had authored which conflicted with his trial testimony.

The Superior Court noted that an expert's authoring of an article and including a reference to the article in his CV constituted an adoption of the information contained in the article by that expert. The appellate court found that it was not credible that an expert would author an article that she or he did not adopt and support.

As such, the preclusion by the trial court of the cross-examination of the Defendant's expert on that article was found to be reversible error as the Superior Court ruled that the jury missed out on important information that might have colored its evaluation of that expert’s credibility.

The Superior otherwise addressed a separate issue of hearsay within hearsay that arose during the course of the trial.

The appellate court noted that it was not an abuse of discretion by the trial court to have excluded a note written by the Plaintiff as inadmissible double hearsay.

The note at issue included a compound statement referred not only to the Plaintiff's state of mind, but also referenced medical instructions.

While the portion of the statement that referenced the Plaintiff's state of mind may have been admissible under Pa.R.E. 803(3)'s hearsay exception related to a declarant's statement of their then-existing state of mind or condition, here, the court noted that compound statements such as the one at issue were not admissible.

Rather, the court noted that, given the existence of hearsay within hearsay, the trial court properly excluded the evidence.

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


Source: “Bad Evidentiary Ruling In Med Mal Trial Spurs Pa. Appeals Court To Toss Hospital’s Defense Verdict,” By Aleeza Furman of The Legal Intelligencer (June 4, 2025).

Soure of image: Photo by Katrin Bolovtsova on www.pexels.com.

Philadelphia Trial Court Rules in Favor of Transfer of Med Mal Case to New Jersey Under Doctrine of Forum Non Conveniens

In the case of Duxbury v. Reconstructive Orthopedic Assoc., June Term, 2023 No. 1031 (C.P. Phila. Co. Feb. 10, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion in support of its decision to transfer this medical malpractice case under the doctrine of forum non conveniens.

The Plaintiffs sued the medical Defendants for professional liability arising out of alleged negligence in the treatment of the Plaintiff’s complaints of back pain.

The trial court noted that it had ruled in this fashion where weighted reasons supported the dismissal of this Philadelphia County case and the re-filing of the action in New Jersey, which was where the Plaintiff received medical treatment and where the Plaintiff’s medical providers, medical records, and most potential witnesses were located.

While certain Defendants had their principal place of business and corporate headquarters in Philadelphia, and while one of the Defendant physicians was licensed to practice in Pennsylvania and had certain other connections to the state of Pennsylvania, the court found that other factors weighed more heavily in the decision to dismiss the matter and ordered that the case to be refiled in New Jersey.

The trial court noted that it had granted the Defendant’s motion and directed that the action refiled in New Jersey.

In this Rule 1925 Opinion, the trial court requested the appellate court to affirm the trial court Order dismissing the matter under the doctrine forum non conveniens.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 30, 2025).

Motion to Bifurcate Medical Malpractice Case Denied

In the case of Wolking v. Lindner, No. 3:23-CV-806 (M.D. Pa. April 14, 2025 Saporito, J.), the court denied a Motion to Bifurcate in a medical malpractice case.

In addressing the Motion to Bifurcate, Judge Joseph F. Saporito, Jr. of the Federal Middle District Court of Pennsylvania turned to F.R.C.P. 42(b), which allows a court to order a separate trial of one or more issues presented for convenience, to avoid prejudice, to expedite the case, or to further the interests of judicial economy.

The court in Wolking noted that four factors are to be considered: (1) whether the issues are significantly different from one another, (2) whether the issues require different witnesses, documents, and evidence, (3) whether the nonmoving party would be prejudiced by bifurcation, and (4) whether the moving party would be prejudiced if the request for bifurcation is denied.

Judge Joseph F. Saporito, Jr.
M.D. Pa.

Judge Saporito noted that bifurcation of trial is a matter of judicial discretion and should be viewed as the exception rather than the rule.

The court noted that a request for bifurcation solely on the basis of judicial economy alone is not sufficient to support an entry of an Order in favor of bifurcation.

Here, the court found that the contested issues of liability and damages were not significantly different, but rather were inherently intertwined. The contested issues in this case both depended upon the harm caused by the prescribed medication, which involved the same types of evidence to be presented to the jury on both the liability and damages issues presented.

As such, the court denied the Motion to Bifurcate the issues of liability and damages.

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


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image: Photo from Times Leader story.

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).

Superior Court Rules on Applicability of Jury Instruction On Recurrence of Medical Condition in Medical Malpractice Case

In its non-precedential decision in the case of Musika v. Abington-Jefferson Health, No. 599 EDA 2023 (Pa. Super. Jan. 9, 2025 Stabile, J., Colins, J., and McLaughlin, J.) (Op. by Stabile, J.; McLaughlin, J. concurring and dissenting), the Pennsylvania Superior Court affirmed a defense verdict in a medical malpractice case.

Of note in this matter, the court did rule that the Plaintiff was entitled to an increased risk of medical malpractice jury instruction on recurrence in a case where the Plaintiff had cancer, but had not yet suffered any recurrence.

The court noted that, under Pennsylvania law, where a Plaintiff already has a disease, its recurrence is not a separate injury that could support a later lawsuit, but rather, a matter of damages in the original lawsuit.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.  Judge McLaughlin's Concurring and Dissenting Opinion can be viewed HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

 

Plaintiff Found To Have Offered Sufficient Expert Testimony In Support of a Delayed Cancer Diagnosis

In the case of Delavern v. Health Services of Clarion, Inc., No. 858 WDA 2024 (Pa. Super. Jan. 6, 2025 Bowes, J., Beck, J., and Bender, P.J.E.) (Op. by Bowes, J.), the court affirmed the entry of judgment against a medical malpractice Defendant in which a jury entered an award of $7.3 million dollars. The case involved a medical malpractice action with allegations of a delayed diagnosis.

According to the Opinion, the Plaintiffs had claimed that a physician’s assistant affiliated with a Defendant incorrectly diagnosed the Plaintiff with a separate condition other than the cancer which was later found relative to the patient. The Plaintiffs alleged that the supervising physician signed off the on the physician’s assistant’s notes without properly reviewing them and also failed to refer the Plaintiff for further screening.

The Plaintiffs claimed that the Defendant’s negligence resulted in a 13-month delay in the Plaintiff receiving a cancer diagnosis, which thereby allegedly allowed the cancer to progress from a curable stage to an incurable one.

On appeal, the Pennsylvania Superior Court rejected a Defendant’s argument that the Plaintiffs’ oncology expert failed to show that the Plaintiff experienced a worse health outcome as a result of a delayed cancer diagnosis.

The trial court and the Superior Court both agreed that the Plaintiff’s expert offered sufficient proof of an increased risk of harm caused by the Defendant’s negligence so as to allow the issuance of causation to go to the jury.

Anyone wishing to review this non-precedential decision of the Superior Court may click this
LINK.


Source – Article: “Superior Court Rejects Pa. Hospital’s Challenge to $7.3M Med Mal Judgment,” by Aleeza Furman of The Legal Intelligencer (Jan. 6, 2025).