Recent Medical Malpractice Case of Note

The following recent medical malpractice case of note was identified in the August 31, 2009 Case Digests of the Pennsylvania Law Weekly. A copy of the cases may be obtained for a small fee by calling the Law Weekly at 1-800-276-7427 and giving the PICS Case Numbers noted below. I have also provided the Westlaw citation:

Pringle v. Rapaport, 2009 WL 2710221, PICS Case No. 09-1436 (Pa. Super. Aug. 31, 2009) Donohue, J.; Orie Melvin, J. (47 pages).

HOLDING: An “error of judgment” jury instruction is inappropriate in a medical malpractice case.

Dr. Rapaport delivered the Pringles’ child on July 31, 2002. During the delivery, the baby's shoulder became stuck behind is mother’s pubic bone, a condition called shoulder dystocia. Dr. Rapaport tried different maneuvers to remedy the situation, and the one that worked was a corkscrew procedure that involved manual turning of Austin’s shoulders.

However, the baby allegedly suffered nerve damage to the brachial plexus allegedly caused by tearing of tissue and nerves, and leading to paralysis of his right arm as a result of the doctor's maneuvers. The Pringles brought a medical malpractice action against Rapaport.

At trial, all experts agreed the procedure was acceptable, the decision to use it appropriate in the circumstances, and that the proper amount of force to apply when using the procedure was a learned skill. All of the experts further agreed that it turned out in hindsight the amount of force used here was too much. Yet, the experts disagreed with whether the procedure was performed negligently.

At the close of the case, the trial court gave a jury instruction that “physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment.” The jury returned a defense verdict.

On appeal, the Superior Court acknowledged that there had been earlier decisions suggesting an “error of judgment” defense and/or instruction was appropriate, but the Court also stated that issues were confused and that there were inconsistent rulings from its own panels in the past. It here held such an instruction was inappropriate,

The Superior Court in Pringle first explained the instruction wrongly suggested to the jury that a physician is not culpable for negligent exercise of judgment. The Court further faulted the instruction for injecting a subjective element into the objective test of standard of care.

In dissent, Judge Orie Melvin stated that the Supreme Court had never repudiated the use of such a charge. Nevertheless, the majority concluded that an "error of judgment" instruction is inappropriate in a medical malpractice case. As such, the defense verdict was reversed and the case was remanded for further proceedings.

Recent Automobile Law Cases of Note

The following recent automobile law cases of note were identified in the August 31, 2009 Case Digests of the Pennsylvania Law Weekly. Copies of the cases may be obtained for a small fee by calling the Law Weekly at 1-800-276-7427 and giving the PICS Case Numbers noted below:

Proximate Causation in Chain Reaction Accident

Ensor v. Slaybaugh, PICS Case No. 09-1474 (C.P. Centre Aug. 20, 2009) Kistler, J. (6 pages).
This case involved a multi-vehicle chain reaction accident. The Plaintiff was stopped in his vehicle waiting to make a left at an intersection. Defendant Slaybaugh was stopped right behind the Plaintiff, in close proximity to the rear of the Plaintiff's vehicle. The Co-Defendant, Engleman, then came along and struck Defendant Slaybaugh's vehicle in the rear, propelling it into the Plaintiff's vehicle. The Plaintiff sued both Defendants.

Defendant Slaybaugh, the operator of the middle vehicle moved for summary judgment, arguing that he had done nothing wrong.

The court held that a driver has no duty to stop his car at a traffic light far enough from the car in front of him to avoid the possibility of a telescopic accident, one in which being struck from behind drives one’s car forward into another vehicle in front. As such, the court granted summary judgment to Defendant Slaybaugh in this case.

The court noted that the Plaintiff argued that this case was analogous to the famous decision by Justice Cardozo, studied by all in law school regarding proximate causation--Palsgraf v. Long Island Railroad Co., 162 N.E.99 (N.Y. 1922). However, the court in Ensor rejected this argument by noting that the Plaintiff failed to understand that Justice Cardozo ruled that where there is a causal chain that was too attenuated, there was no proximate cause. Here, too, no such proximate cause was found to exist.

That is, Defendant Slaybaugh's actions of bringing his vehicle to a stop very close to the rear of the Plaintiff's vehicle without striking the Plaintiff's vehicle could not be said to have been a proximate cause of the Plaintiff's injuries when Defendant Slaybaugh's vehicle was propelled into the rear of the Plaintiff's vehicle by the negligence of another driver. Accordingly, the court granted summary judgment.

Anyone wishing to review this decision may click this LINK.


Subrogation

City of Wilkes-Barre v. Sheils, PICS Case No. 09-1445 (3d Cir. Aug. 25, 2009) Smith, J. (14 pages).
This case involved a police officer who was injured in 1996 when a Luzerne County vehicle struck his cruiser. He was unable to return to work for nine years, during which he drew benefits under the Heart and Lung Act. He also sued Luzerne County for the injuries he suffered, and during the pendency of that action filed a Chapter 7 bankruptcy action.

In 2005, the Middle District of Pennsylvania approved a settlement of the personal injury action, after which the city sought subrogation, or a pay back, of the benefits it had paid to the injured police officer. The Bankruptcy Court rejected the city's subrogation claim, and the Middle District Court agreed on the grounds that the city’s right of subrogation was barred by the Motor Vehicle Financial Responsibility Law (MVFRL).

In this decision, the Third Circuit Court of Appeals vacated the lower court's decision and remanded the case for further proceedings. The Court analogized Heart and Lung Benefits as being similar to Worker's Compensation Benefits. Given that the Motor Vehicle Responsibility Law allowed for subrogation of Worker's Compensation Benefits, the Third Circuit ruled that Pennsylvania law likewise should be construed to allow for an employer to assert his subrogation rights in the Heart and Lung Benefits context.

Accordingly, the Third Circuit has ruled that an employer may seeking to recover, or be paid back, from the plaintiff's verdict or settlement those payments the employer previously paid out under the Heart and Lung Act as a result of the accident.

It therefore follows, under Sections 1720 and 1722 of the Motor Vehicle Financial Responsibility Act, that a plaintiff may plead and present at trial the dollar amount of such benefits he or she received in an effort to convince the jury to award that additional amount to its verdict.

Upcoming CLE Seminars of Note

I note the following upcoming seminars in Northeastern Pennsylvania. I provide the information I was able to uncover. For more information, I would suggest you visit the websites of the entities putting on the seminars:

Thursday, September 24, 2009
Northeast Rehabilitation Associates
Presentations on Neck and Back Injuries by various physiatrists (Bednarz, Wolk, etc.)
(Only $50 fee to register)
Mount Airy Casino, Poconos

Friday, October 9, 2009
28th Annual Lackawanna County Bench Bar Conference
Hilton, Scranton

Thursday, November 5, 2009
Luzerne County Bench Bar Conference
Genetti's Convention Center, Wilkes-Barre

Tuesday, November 17th
Pennsylvania Bar Institute (PBI)
Auto Law Update
Radisson Hotel, Scranton
8:30 a.m. - 12:45 p.m.

Wednesday, December 9, 2009
Pennsylvania Association for Justice (PAAJ)
Auto Law Update
9 a.m. - 1:30 p.m.

Pennsylvania Superior Court Continues to Question the Ongoing Validity of the Assumption of Risk Doctrine

In the recent case of Zeidman v. Fisher, 2009 WL 2462563 (Pa.Super. August 13, 2009), the Superior Court elected to apply general negligence principles to a claim presented by a plaintiff injured by an errant shot on a golf course. In so ruling, the Superior Court overruled the trial court's decision that the plaintiff's claims were barred by the assumption of risk doctrine, i.e. that the plaintiff assumed the risks associated with playing on a golf course.

In so ruling, this panel of the Superior Court noted that the continuing validity of the doctrines of assumption of the risk and its near-equivalent, the “no-duty” rule, were in doubt. As such, the Superior Court vacated the trial court’s application of those doctrines to grant the defendant's motion for summary judgment. Finding instead issues of fact to exist under the application of general negligence principles, the Superior Court remanded the case back down for further proceedings.

This Zeidman case again illustrates the need for clarification from the Pennsylvania Supreme Court on whether the assumption of risk doctrine should be deemed to be alive and well in Pennsylvania. Hopefully, that clarification will come someday soon.

In the words of Pennsylvania Supreme Court Justice Stephen A. Zappala in his concise dissenting opinion found in Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) over 15 years ago: "Until such time as this Court arrives at a clear-cut majority, we will continually muddy the waters in the sensitive areas of both comparative negligence and the assumption of risk, both of which are cornerstones of the negligence law in this Commonwealth."

Luzerne County Update: Ex-Judges Ciavarella and Conahan Withdraw Guilty Pleas

According to an August 25, 2009 front page article in the Scranton Times (www.scrantontimes.com), on Monday, August 24, 2009, Judge Edwin Kosik of the Federal Middle District Court of Pennsylvania formally rejected the requests of Mark A. Ciavarella and Michael T. Conahan for a reconsideration of the Court's prior rejection of the plea agreements entered into by the ex-judges back in January of 2009 that called for a sentence that included 87 months in prison.

As permitted, the ex-judges followed the Court's decision by choosing to withdraw their guilty pleas. The case is now back to square one and it remains to be seen whether plea negotiations will be re-instituted or the cases proceed to trial.

Update on Seatbelt Defense Case

In an August 6, 2009 per curiam Order issued in the case of Gaudio v. Ford Motor Company, the Pennsylvania Superior Court denied a request to hear additional arguments regarding a defendant's right to introduce evidence concerning seat belt usage, or the lack thereof, in products liability cases involving questions about an automobile's crashworthiness.

This Order effectively upholds the Superior Court's 2-1 decision, found at ruling that the trial court should not have allowed any reference to the plaintiff's decedent's failure to wear a seatbelt in a crashworthiness case. Judge James Fitzgerald III dissented on this issue in the prior Superior Court opinion and suggested that the Courts could use guidance from the Pennsylvania Supreme Court on whether any and all evidence pertaining to the lack of seatbelt use should be precluded under all circumstances.

The original 2-1 Superior Court decision can be found on Westlaw at 2009 WL 1530669, and the Pike County trial court opinion by Judge Harold A. Thomson, Jr. can be found at 2007 WL 5077415.

It remains to be seen now whether the defense will appeal this case up to the Pennsylvania Supreme Court.

Westlaw Citations for Recent Cases of Note

I was recently provided with the following Westlaw citations for the below recent cases of note. Thanks to James Beck, Esquire of the Dechert firm in Philadelphia for his efforts in pushing for these cases to be published on Westlaw.

The recent trivial defect premises liability case has been given the following Westlaw citation:

Melchiorre v. Lords Valley Xtra Mart, 2009 WL 2430339 (Pike Co. 2009)


Some of the recent trial court post-Koken opinions have also been given Westlaw citations as well:

Decker v. Nationwide, 2008 WL 6653069 (Lacka. Co. 2008)

Decker v. Nationwide, 2007 WL 6853118 (Lacka. Co. 2007)

Six v. Phillips, 2009 WL 2418861 (Beaver Co. 2009)

Jannone v. McCooey, 2009 WL 2418862 (Pike Co. 2009)

Gunn v. Auto. Ins. Co. of Hartford, 2008 WL 6653070 (Allegh. Co. 2008)