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).

Abington Heights High School Mock Trial Team Wins Fourth District Championship in Five Years

Happy and Proud to report that the Abington Heights High School Mock Trial Team won their District Championship Trial last night and are on their way to the Regional Championship.

This is the 4th District Championship for the Abington Heights High School Mock Trial Team in the past 5 years.

This District Championship is all the more impressive given that the Abington Heights High School Mock Trial Team lost six seniors from last year's National Championship Team.

Above is a picture of the entire Team celebrating their win last night in Courtroom 3 of the Lackawanna County Court of Common Pleas. (That's my son, Christopher, in the back row, fourth person from the left).

Way to go Team -- Keep soaring through the night sky like the COMETS you are!!

Sending THANKS to the Mackenzie Wilson, the District Coordinator, and the Lackawanna Bar Association for all they do to make this program a success.  Thanks also to all the Judges and Attorneys and others who volunteered to serve as Judges and Jurors.

Federal Court Addresses Recoverability of Future Medical Expenses in a Motor Vehicle Accident Case

In the case of Morris v. Sutton, No. 2:23-CV-02806-GAM (E.D. Pa. Feb. 19, 2025 McHugh, J.), an Eastern Federal District Court judge ruled that 75 Pa. C.S.A. §1722 did not bar the recovery of future medical expenses under the Pennsylvania Motor Vehicle Financial Responsibility Law.

Judge Gerald A. McHugh noted that the Pennsylvania Supreme Court has not yet addressed this particular issue. However, the judge noted that other court decisions that he had reviewed that considered similar arguments has concluded that §1722 does not apply to future medical expenses that have not yet been incurred. As such, the judge held that §1722 has no applicability to future medical expenses.

Judge McHugh noted that §1722 provides that individuals injured in a motor vehicle accident, who have other sources of insurance to cover their medical expenses, are barred from recovering certain benefits that are “paid or payable.”

The Plaintiff argued in this case that given that the future medical bills have not yet been incurred, it was speculative as to whether or not such future medical bills will be “payable” under any applicable insurance.

The judge agreed with this speculation argument. The court noted that “[f]rom a practicable perspective, it is not just the existence of coverage for future medical expenses that is speculative, but also the terms of any such coverage and how it would apply, as changes in eligibility and changes in the terms of coverage such as deductible sand co-pays are impossible to predict.”

In rendering his decision, Judge McHugh referred to the Pennsylvania Superior Court decision in the case of Farese v. Robinson, 222 A.3d 1173, 1189 (Pa. Super. 2019). In that case, the Pennsylvania Superior Court concluded that damages for future medical care were not limited by the MVFRL’s containment provisions under a different provision of the law.

In the end, the court denied the Defendant’s Motion to Preclude the Plaintiff from introducing evidence of future medical expenses by finding that §1722 does not apply to future medical expenses as a matter of law.

As an aside here, it is noted that the court in Morris apparently was not provided by counsel, and did not find on its own, the decision of Orzel v. Morgan, No. 03-CV-4929 (C.P. Lacka. Co. 2003 Nealon, J.), by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas. In that decision, Judge Nealon addressed, in part, a defense argument that §1722 precludes the Plaintiff from recovering damages for future medical bills since those costs were payable by her then existing private health insurance. Judge Nealon noted that, instead, the Plaintiff’s future medical expenses award would only be molded to the extent that Plaintiff had first party medical benefits coverage remaining under her own automobile insurance policy.

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


Anyone wishing to review other similar decisions on this issue of whether a motor vehicle accident Plaintiff can recover future medical expenses may click this LINK to get to other Tort Talk blog posts on other such cases. Those Tort Talk blog posts should have links to those other decisions.


Source: Article: “Cost Containment Provision Doesn’t Bar Recovery For Future Medical Expense, Pa. Fed. Judge Rules” by Riley Brennan of the Pennsylvania Law Weekly (Feb. 20, 2025).

Source of image:  Photo by Jennifer Uppendahl on www.unsplash.com.

Trial Court Addresses Parameters for Completion of IME of a Plaintiff Who Resides Out of State

In the case of Seifert v. Whitfield, [Docket Number Not Provided in Decision] (C.P. Chester Co. May 16, 2024 Binder, J.), the court addressed a Defendant’s Motion to Compel a Plaintiff, who was a resident of Florida, to attend an independent medical examination to be performed by a physician located in Pennsylvania. The parties disputed whether the Defendant should bear the costs related to the travel to complete the IME.

The court noted that Pa. R.C.P. 4010 permits a party to require another party to attend an IME under appropriate circumstances. The Rule, however, is silent as to which party bears the cost related to traveling for an IME.

Relying upon case law from other similar situations, the court in this case ordered that the Defendants could require a Plaintiff to attend an IME within one hundred (100) miles of her own residence without having to pay the Plaintiff's costs related thereto.

The court found that the Defendant could also elect to require the Plaintiff to attend an IME in Pennsylvania, in which case, the Defendants would have to pay for the Plaintiff’s reasonable costs for flights, lodging and ground transportation.

The court also noted that the Defendants could require the Plaintiff to attend an IME in Pennsylvania on the day before trial, or on a day that the Plaintiff is visiting Pennsylvania, in which case, the Defendants would not have to pay for the Plaintiff’s cost related to attending the IME.

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

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Feb. 13, 2025).

Source of image:  Photo by Cottonbro on www.pexels.com.

A Good Day For Allegedly Bad Lawyers

In the case of Office of Disciplinary Counsel v. Anonymous Attorney, [Docket No. Withheld by Court] (Pa. Feb. 12, 2025) (Op. by Donohue, J.) (concurring Opinion by Wecht, J.), the Pennsylvania Supreme Court clarified the standard of proof in a disciplinary hearing for attorney misconduct and opted for a higher burden.

According to the Opinion, prior to this ruling, the previously accepted standard of proof of the disciplinary cases against attorneys was “a preponderance of the evidence through clear and satisfactory evidence.”

In this case, the Pennsylvania Supreme Court held that the burden of proof of disciplinary cases going forward should be “clear and convincing evidence.”

In ruling in this fashion, the court noted that “[a]ttorney disciplinary proceedings are not civil disputes for money damages, and the public’s and the attorney’s interests are not clearly minimal.” The court otherwise noted that “[d]isciplinary proceedings are not strictly civil nor criminal in nature, but rather have been styled as ‘quasi criminal.’”

Anyone wishing to review a copy of this decision may click this LINK.  A copy of Justice Wecht's Concurring Opinion can be viewed HERE.


Source: “Pa. High Court Rules in Favor of Higher Standard for Proving Attorney Misconduct,” By Aleeza Furman of The Legal Intelligencer (Feb. 26, 2025).

BRING YOUR CASE TO A CLOSE

 BRING YOUR CASE TO A CLOSE

DANIEL E. CUMMINS, ESQ.

570-319-5899

dancummins@CumminsLaw.net

Contact CUMMINS MEDIATION SERVICES to set up your Mediation to bring your case to a close.

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What Constitutes The "Record" To Be Reviewed On Summary Judgment?

In the case of L.T. v. Kubota Manufacturing, No. 1310 MDA 2023 (Pa. Super. Feb. 14, 2025 Bowes, J., Olson, J., and Stabile, J.) (Op. by Bowes, J.), the Pennsylvania Supeiror court overruled a trial court’s entry of summary judgment in a products liability case.

According to the Opinion, the case arose out of a rider mower accident in which a grandmother accidentally ran over her 7 year old grandson who had come into the yard and slipped on the grass behind her. The Plaintiff alleged that the mower lacked appropriate rear guarding and was negligently designed such that the blades remained engaged even when the tractor was in reverse. The minor’s lower leg eventually had to be amputated.

On appeal, the Pennsylvania Superior Court noted that the trial court erred by not reviewing certain expert reports offered by the Plaintiff which were attached to the Plaintiff’s Brief which were filed of record.

The Superior Court, citing Pa. R.C.P. 1035.1, confirmed in its Opinion that the Rules of Civil Procedure define “record” for purposes of summary judgment as including pleadings, depositions, Answers to Interrogatories, admissions and affidavits, and reports signed by an expert witness that would, “if filed,” comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to Interrogatories

The court noted that the language of the rule suggest that expert reports need only be submitted to the court, not filed, in order to be considered in Motion for Summary Judgment proceedings.

As such, the appellate court noted that the trial court should have considered the Plaintiff’s expert report, which would have created issues of fact for the jury’s resolution.

In this decision, the Pennsylvania Superior Court also provided a thorough recitation of the current status of products liability law in Pennsylvania, including the law as altered by the case of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014). In reviewing that law, the court reiterated that there were indeed issues of fact that needed to be decided by a jury.

As such, the trial court’s entry of summary judgment was overruled.

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