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.

Pennsylvania Superior Court Addresses Discoverability of Documents in a Medical Malpractice Case

In the case of Ungurian v. Beyzman, No. 298 MDA 2019 (Pa. Super. April 28, 2020 Dubow, J., Lazarus, J., Stabile, J.), the court affirmed a trial court’s granting of a Motion to Compel the production of documents in a medical malpractice case that the Defendant had asserted were protected from production in discovery by the Patient Safety Quality Improvement Act and/or the Peer Review Protection Act.

The court ruled that the documents that the Plaintiff sought were not protected by the patient safety or peer review privilege. 

The court reiterated the rule that, to establish a patient safety work product protection in terms of documents, a defendant must produce sufficient facts to show that it prepared the document for reporting to a patient safety organization and also actually reported them to the patient safety organization. 

Here, the court found that the Defendant did not allege a connection to the patient safety organization and, therefore, failed to establish a right to confidentiality. 

The court also noted that the Defendant additionally admitted that another document existed outside of the patient safety evaluation system utilized by the hospital, which resulted in the Defendant forfeiting the privilege asserted with respect to that document. 

The court found that the Defendant's assertion of the peer review privilege failed because the Defendant did not identify members of the relevant review committees at issue. The court also noted that a document produced pursuant to an event reporting policy was an event report and not a peer review report. The court additionally emphasized that a peer review must be conducted by professional healthcare providers. 

In this matter, the court found that the Defendant did not establish that the individuals who conducted the review qualified under this rule of law to allow for any privilege to apply. 

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.

Appellate Court Affirms Refusal by Trial Court to Issue Adverse Inference Instruction Regarding Allegedly Altered Medical Records in Med Mal Case

In the case of Cragle v. O’Brien, 2019 Pa. Super. 360 (Pa. Super. Dec. 20, 2019 Gantman, P.J.E., McLaughlin, J., and Ford Elliot, P.J.E.) (Op. by McLaughlin, J.), the Pennsylvania Superior Court ruled that a medical malpractice Plaintiff was not entitled to an adverse inference instruction relative to the alleged destruction of medical records.  The judgment entered below in favor of the Defendants was affirmed.

The appellate court more specifically noted that it agreed with the trial court that the Plaintiff had failed to expressly request the standard jury instructions for alteration or destruction of medical records. The Superior Court additionally noted that the Plaintiff failed to ensure that a transcript of the charging conference was included in the certified record on appeal. 

The appellate court also appointed to the fact that the Plaintiff had failed to submit a proposed jury instruction for the applicable statute to the trial court below. 

Lastly, the appellate court reiterated that, in any event, the parties all agreed that the events described in the allegedly altered portion of the doctor’s office notes never happened. 

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Jan. 7, 2020).

Fishing Allowed With Written Discovery Requests -- But Only With a Hook or Harpoon (Not a Net)

In his recent Order of March 16, 2015, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the common issue of the allowance of liberal discovery efforts as compared to fishing expeditions in the case of Bandru v. Fawzen, No. 2013-CV-3959 (C.P. Lacka. Co. March 16, 2015 Nealon, J.).

This matter arose out of a motor vehicle accident.   More specifically, in this case, the court addressed a Motion by the Defendant to strike the Plaintiff’s objections to records subpoenas that the Defendant had addressed to the Plaintiff’s healthcare providers as well as to two (2) automobile insurance carriers.  

The gist of the Plaintiff’s objections is that the Defendant sought medical records dating back to the Plaintiff’s date of birth which was more than 52 years before.   As such, the Plaintiff asserted that the records requests were overly broad and sought information that is not relevant and not likely to lead to the discovery of admissible evidence.   The Plaintiff further stated that he would not object to subpoenas which were reasonably limited in time and scope.  

The defense countered with an argument that the Plaintiff had admitted during his deposition that he had had extensive dental work performed in the mid-1980s (in this matter, the Plaintiff was alleging a TMJ injury), that the Plaintiff had been injured in previous motor vehicle accidents.   The Defendant generally asserted that she was entitled to secured documentation relevant to the Plaintiff’s past medical history and any and all documents pertaining to the Plaintiff’s past medical care and treatment in order to ascertain whether any of the injuries alleged by the Plaintiff existed prior to the accident and/or whether or not the Plaintiff was involved in any other prior incidents as a result of which he sustained personal injuries.  

The Plaintiff acknowledged that he was involved in prior motor vehicle accidents in 1991, 1993, and 1998.  However, the Plaintiff also stated that, for years before the subject collision, he worked as a personal trainer and ran multiple marathons, along with ultramarathons of greater than 50 miles every year.   The Plaintiff also described during his discovery responses that any prior treatment he had in the mid-1980s as well as in the 1990s were for unrelated conditions that had no bearing on the issues presented following the subject accident.  

The Plaintiff additionally asserted that the Defendant’s request for medical records and the files of the automobile insurance carriers relative to the Plaintiff’s 1991, 1993, and 1998 accidents were "fishing expeditions." 

Judge Terrence R. Nealon
Lackawanna County

In his Opinion, Judge Nealon set forth the current status of the discovery standards pursuant to Pa. R.C.P. 4003.1 and confirm that discovery is to be liberally permitted with respect to any matters that were not privileged, and which were relevant to the case being tried.   The court also noted that any doubts regarding relevance should be resolved in favoring of allowing the requested discovery.  

However, Judge Nealon also stated that it is the responsibility of the trial court to oversee discovery between the parties and to determine, within the court’s broad discretion, any appropriate measures to ensure adequate and prompt discovery of matters allowed by the Pennsylvania Rules of Civil Procedure.   The court reaffirmed the general rule that, while discovery should be liberally permitted, discovery requests must also be reasonable.  Judge Nealon noted that the courts of Pennsylvania have repeatedly held that trial courts can prohibit the discovery of matters which would amount to a fishing expedition.  

Judge Nealon emphasized that while the courts have repeatedly indicated that, “[w]hile a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted ‘to fish with a net rather than with a hook or a harpoon.’”   See Bandru at p. 6.  

Applying this law to the case before him, Judge Nealon ruled that some of the information requested by the defense was indeed discoverable and other information was not.  As such, the matter before the court was granted in part and denied in part.  

 

Anyone wishing to review a copy of this detailed Order issued by Judge Nealon may contact me at dancummins@comcast.net.  

 

New Rules Regarding Allowable Fees Issued by Medical Providers for Copying Medical Records

I received the below information by email from MCS (www.themcsgroup.com), a subpoena/records acquisition/deposition vendor that I utilize in my practice.  As the info may impact many in terms of costs of securing copies of medical files from medical providers, I thought I would pass it along verbatim:

Effective January 1, 2015, the Commonwealth of Pennsylvania has adjusted the fees for copying medical records at all health care institutions within the state. The new rules are as follows:   1. Flat fees apply to amounts that may be charged by a health care facility or health care provider when copying medical charts or records either:   (a)  for the purpose of supporting any claim or appeal under the Social Security Act or any Federal or State financial needs based program   (b)  for a district attorney.   2. An insurer shall not be required to pay for copies of medical records required to validate medical services for which reimbursement is sought under an insurance contract, except as provided in:   (a)  the Workers' Compensation Act and the regulations promulgated thereunder   (b)  75 Pa.C.S. Chapter 17 (relating to Motor Vehicle Financial Responsibility Law) and the regulations promulgated thereunder   (c)  a contract between an insurer and any other party.

The charges listed in this advisory do not apply to an X-ray film or any other portion of a medical record which is not susceptible to photostatic reproduction.

The Secretary of Health is also directed to make a similar adjustment to the flat fee which may be charged by a health care facility or health care provider for the expense of reproducing medical charts or records where the request is: (a)  for the purpose of supporting a claim or appeal under the Social Security Act or any Federal or State financial needs based benefit program   (b)  made by a district attorney.

The Secretary of Health bases these adjustments on the most recent changes in the Consumer Price Index reported annually by the Bureau of Labor Statistics of the United States Department of Labor.

For 2015, the following fees may be charged by a health care facility or health care provider for production of records in response to subpoena or request: Search & Retrieval of Records Flat Fee $21.69 Amount charged per page for pages 1-20 $1.46 Amount charged per page for pages 21-60 $1.08 Amount charged per page for pages 61-end $0.36 Amount charged per page for microfilm copies $2.16

These fees will apply for paper copies or reproductions on electronic media whether the records are stored on paper or in electronic format. Note: In addition to the amounts listed above, charges may also be assessed for the actual cost of postage, shipping and delivery of the requested records. For more information please contact Alyson Gabel Alyson.Gabel@themcsgroup.com 1.800.473.5003 ext. 8135