On July 2, 2018 the Superior Court of Pennsylvania provided clarification to the extent of limited immunity provided to health care providers who treat mentally ill patients under the Mental Health Procedures Act (“MHPA”). Dean v. Bowling Green-Brandywine, 2018 PA Super 196 (Pa. Super. 2018). The MHPA was designed to provide limited civil and criminal immunity to “individuals and institutions providing treatment to the mentally ill.” Under the MHPA a physician providing treatment to a mentally ill person may only be found liable if they committed “gross negligence.” The claim against Bowling Green Brandywine Treatment Center (“Brandywine”) was brought by the parents of a patient who voluntarily admitted himself for treatment to deal with addiction to painkillers. Within ten days of being admitted the patient was found unresponsive on the floor of his room suffering from cardiac arrhythmia. After being transported to an emergency care facility the patient died. The parents’ medical experts opined that Brandywine committed gross negligence by failing to provide adequate care that would have made Brandywine aware that the patient was at considerable risk for cardiac arrest due to the medications in his system. The trial court held that all the doctors involved had limited immunity under the MHPA and granted a nonsuit against all defendants.
On appeal the parents argued that their son’s drug addiction was not dispositive by itself as to whether he suffered from mental illness, to which the court agreed. The court then went on to analyze whether care provided by Brandywine could be deemed to fall under the MHPA. The Superior Court found that for the first several days of treatment the patient was not classified as a mentally ill patient. However, two days prior to the patient’s death he had been seen for psychiatric care at Brandywine wherein a physician identified him as suffering from mood disorders and prescribed him medication. Consequently, even if the doctors were negligent by failing to identify the cardiac arrest risk, they were still protected by limited immunity as such error was not grossly negligent and the patient was deemed mentally ill.
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Only Physicians Can Obtain Informed Consent From Patients
A recent Pennsylvania court ruling found that only physicians, not their subordinates, can obtain informed consent from patients prior to procedures. In Shinal v. Toms, 162 A.3d 429 (Pa. 2017), Plaintiff, Shinal, was a patient of Defendant, Dr. Toms. Shinal had consulted with Dr. Toms to discuss removal of a new tumor growth in her brain. In this consultation, Dr. Toms advised her of the risks associated with surgery and reviewed alternatives including a less aggressive approach called a subtotal resection (safer in the short run) versus a more aggressive approach called a total resection, which would be more dangerous in the short run but offer a better chance of resecting the entire tumor. After this consultation, Shinal decided to have the surgery but had not decided on the approach.
Following this consultation, Shinal’s interactions were entirely with Dr. Toms’ physician assistant. The assistant discussed potential scarring, whether radiation therapy would be necessary, and the date of the surgery. The assistant also answered Shinal’s questions about the craniotomy incision, and met with Shinal to obtain her medical history, conduct a physical and provide her with more information regarding the surgery. In this meeting, Shinal signed an informed consent form granting Dr. Toms permission to perform a resection of her tumor and the risks associated with this procedure. The form also acknowledged that Shinal had discussed the advantages and disadvantages of alternative treatments and that she understood the form’s contents, had an opportunity to ask questions and had sufficient information to give her informed consent to the operation. The form did not address the specific risks of total versus subtotal resection.
When Shinal underwent the procedure, the surgeon conducted a total resection and perforated her carotid artery resulting in hemorrhage, stroke, brain injury and partial blindness. Shinal initiated this medical malpractice lawsuit alleging that Dr. Toms failed to obtain her informed consent for the procedure. Shinal stated that if she had known the alternative approaches and risks of the total resection, she would have chosen the subtotal approach (less aggressive) alternative.
The Supreme Court of Pennsylvania held that a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent, and cannot delegate to others his obligation to provide sufficient information to a patient prior to a procedure. The court ruling additionally stated that “without direct dialogue and two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefit, likelihood of success and alternatives.” The defendant’s actions ultimately violated the Medical Care Availability and Reduction of Error (MCARE) Act.
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In February 2012, an obstetrician at Temple University Hospital delayed a Caesarian section that was necessary because of an abnormal fetal heartbeat and, as a result, the child was born with severe brain damage. The obstetrician, Clinton Turner, was an employee of a federally funded operator of clinics in the Philadelphia are and was working under an agreement between the hospital and operator. In August 2014, the hospital agreed to pay $8 million to settle the case. A year later, the hospital then submitted a claim to the federal government under the Federal Tort Claims Act, stating that the government was liable for the $8 million settlement because Turner was technically a federal employee under the Public Health Service Act. Temple Hospital claimed the government was bound to insure the hospital based on its physician-sharing contract with the clinic as well as common law contribution and indemnification.
On June 21, 2016, U.S. District Judge Mark Kearney dismissed the physician-sharing contractual indemnification, agreeing with the government that it could not bind them because they were not party to the agreement. However, the Court upheld the common law claims, finding the hospital’s settlement had eliminated Turner’s liability, and it had “held Dr. Turner out as its employee,” creating the necessary legal relationship.
Temple University Hospital Inc v. United States, U.S. District Court, Eastern District of Pennsylvania, No. 2:16-cv-01073.
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Pennsylvania Supreme Court to Review Statute of Limitations in Survival Actions
On June 7, 2016, the Pennsylvania Supreme Court agreed to review the Superior Court’s expansion of the statute of limitations applicable to survival actions in medical malpractice cases.
In Dubose v. Quinlan, the Superior Court affirmed judgments entered in a wrongful-death and survival action brought by the administrator of the estate of Elise Dubose. Dubose died while in the care of Willowcrest Nursing Home, after developing severe pressure ulcers that were left untreated. During her stay at Willowcrest, Mrs. Dubose was malnourished, suffered severe dehydration, pain from bed sores, bone infection, and developed sepsis systemic infection that ultimately lead to organ failure and death in October of 2007. The jury found in favor of plaintiff in the amount of $125,000 on the Wrongful Death Claim and $1,000,000 on the Survival Action.
The defendants argued on appeal that they were entitled to a judgment notwithstanding the verdict because the Survival Action exceeded the two-year statute of limitations, pursuant to the Medical Care Availability and Reduction of Error (“MCARE) Act. Defendants argued that the statute of limitations began to run in 2005, when Dubose developed the first pressure wound. The plaintiff filed two complaints in August 2009 and September 2009, so therefore the claim would have been barred. However, the Superior Court disagreed, ruling that the statute began to run at the time of death, in October of 2007. Believing that the approach the Superior Court took was far too literal, the defendants then filed a Petition for Allowance of Appeal from the Order of the Superior Court, claiming that the expansion of the statute of limitations was improper.
If the Supreme Court affirms the decision, it would open up more litigation in the medical malpractice field. A plaintiff could bring a survival action suit for an injury caused by another person’s negligence if there were complications that resulted in death, regardless of how many years are between the injury and death.
For more information, call our Philadelphia medical malpractice lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.
A jury found defendant doctor, Mohammed Budeir, and Crozer-Chester Medical Center negligent in treating plaintiff Bonnie Semple. Semple is now required to have a permanent tracheostomy tube. The jury awarded Semple $2.78 million.
Semple was admitted to Crozer-Chester Medical Center after a car accident, in which she was knocked unconscious and suffered abdominal bleeding, as well as blunt force trauma to her head. Semple was endotracheally intubated, and Budeir then performed a repair of liver lacerations. She remained intubated for several days, and an ear, nose and throat doctor found swelling in her airways. The doctor recommended she receive steroids for the next few days. Semple’s swelling continued despite the small doses of steroids Budeir gave her.
Semple was discharged in mid-April, but was readmitted to the hospital in May to treat a bacterial skin infection involving her chest wall and neck. Doctors found tissue swelling, multilevel airway collapse and obstruction, due to a misplaced tracheostomy. Semple underwent numerous additional surgeries in 2009 and 2011, including a reconstruction procedure that involved removing portions of Semple’s rib bones and cartilage to correct the error.
Semple argued the treatment caused her to need a permanent tracheostomy, a special valve to speak, limited activity, and the need to take extra precautions around water. She also noted her tracheostomy tube must be replaced every three months, and she must take medications to control her stomach acidity.
For more information or to discuss a possible claim of medical malpractice, call Philadelphia medical malpractice lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.
On August 7, 2015 a jury on found in plaintiff’s favor and against two of the doctors who treated him. The jury has awarded $12.5 million to plaintiff Kenneth Del Grosso who is paralyzed following an alleged delayed diagnosis of a cervical abscess. Del Grosso said he received negligent care, causing his paralysis of the arms and legs, as well as other damages.
Del Grosso arrived at the emergency room with symptoms of left-sided neck pain and tingling in his left arm, according to a pretrial memorandum for the plaintiffs. He was kept at the hospital overnight, where his symptoms worsened and he developed a fever.
Infectious-disease specialist Bonnie Rabinowitch evaluated Del Grosso and found symptoms of a cervical epidural abscess and ordered an MRI. Radiologist Ben-Zion Friedman interpreted the MRI and declared there was no abscess or epidural collection. Del Grosso underwent emergency surgery on a deep cervical abscess the next day, after Rabinowitch expressed ongoing concerns about spinal cord compression. Del Grosso became paralyzed in the arms and legs, and lost bowel, bladder and sexual function.
If you or a loved one has been injured as a result of a medical mistake, contact Philadelphia medical malpractice lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.