Sunday, March 17, 2013


Proposed legislation in Pennsylvania (SB 625) would require nursing homes to report turnover and staffing levels to the Department of Health. A separate bill (SB 626) would establish minimum spending requirements for Medicaid per diem funds. An article on the legislation can be found here.


In Shiner v. Ralston, 2013 Pa.Super. 33 (2013), the Pennsylvania Superior Court addressed proper pleading and application of the sudden medical emergency defense. According to the court, Shiner is the first Pennsylvania appellate opinion officially recognizing the “sudden medical emergency” defense. In Shiner, a man driving his employer’s truck suffered a cardiac dysrhythmia, causing him to lose consciousness. As a result, he collided with Plaintiff’s vehicle, causing injuries to Plaintiff.[1]

The trial court granted summary judgment to Defendants, holding that they were entitled to judgment under the sudden emergency doctrine. The trial court stated that it was “incumbent upon [Plaintiffs] to adduce evidence from which a jury could find that the emergency confronting [the driver] was not sudden or was foreseeable.”
The Superior Court reversed and remanded for a number of reasons. First, the Superior Court found that the trial court confused the “sudden emergency doctrine” and the “sudden medical emergency defense.” The sudden emergency doctrine does not relieve a defendant of all responsibility to act with reasonable care. It is therefore not an affirmative defense and does not have to be pled in new matter. The sudden emergency defense is a legal principle that lessens the standard of care for a person placed in “a sudden and unexpected position of peril created in whole or in part by someone other than the person claiming protection under the doctrine.” Lockhart v. List, 665 A.2d 1176, 1180(Pa. 1995).

The sudden medical emergency defense is a complete defense to negligence, and it therefore must be pled as new matter. The defendant has the burden of proving this defense. The defense applies when there is sudden and unforeseeable loss of consciousness or incapacitation. “The assumption is that when a person is unconscious and unable to act, he is incapable of negligence.”
In Shiner, the defendants waived the sudden medical emergency defense by failing to plead it in new matter. Further, the trial court erred when it placed a burden on the plaintiffs to disprove that the “loss of consciousness was sudden and unexpected.” For these and other reasons, the Superior Court reversed and remanded the trial court’s decision granting summary judgment to the Defendants.

[1] Defendants in the case were the employer and the estate of the driver. Plaintiffs were Mr. Shiner and Mrs. Shiner.

Saturday, March 2, 2013


From a plaintiff’s perspective, one of the most difficult parts of a premises liability case is proving that the defendant had notice of the dangerous condition that caused her injuries. Generally, the plaintiff must prove that the defendant knew or should have known of the dangerous condition. Below, I provide portions of my response brief to a motion for summary judgment in a trip and fall case. The defendant argued that it was entitled to judgment in its favor because we couldn’t prove that it had notice of the dangerous condition. I have omitted identifying information, facts, analysis, and conclusions, so that all that remains is the law.

Wednesday, February 13, 2013


The Pennsylvania Supreme Court recently issued an opinion in Seebold v.Prison Health Services, Inc., No. 9 MAP 2011 (PA 2012), an important case on the duty of healthcare providers to warn non-patients of potential threats to their health.

In Seebold, Plaintiff worked as a corrections officer at the State Correctional Institution at Muncy under a contract with the Pennsylvania Department of Corrections. Her job duties included performing strip searches of female inmates when they received visitors.
Plaintiff filed a complaint against Prison Health Services (PHS), alleging a single cause of action for negligence. Plaintiff claimed that PHS misdiagnosed MRSA infections in twelve inmates. Plaintiff claims that she was infected with MRSA while searching these inmates.
PHS filed preliminary objections, arguing, inter alia, that it owed no duty to Plaintiff as a third-party non-patient.[1] The trial court sustained the preliminary objections on that issue. The Superior Court reversed, finding that Plaintiff had a cause of action under DiMarco v. Lynch Homes-Chester County, Inc.,525 Pa. 558 (1990)[2] and Troxel v. A.I. Dupont Institute,675 A.2d 314 (1996).[3]
Before the Supreme Court, Plaintiff’s arguments in favor of a duty hinged on Restatement (Second) of Torts Section 324A,[4] DiMarco, and Troxel. The court also discussed Emerich v. Phila. Ctr. for Human Dev., Inc., 554 Pa. 209 (1998).[5]
The court distinguished DiMarco and Troxel because both cases dealt with the physician’s duty to instruct/warn the patient. There was no duty in those cases to warn a non-patient. The court also found that, despite its “awkward” wording, Restatement Section 324A only imposes a duty to properly advise patients, not non-patients.
Although the court recognized that Emerich imposed a duty upon healthcare professionals to warn non-patients, the court stated that Emerich is limited to “targeted threat[s] of imminent violence.” The court therefore found that Emerich did not impose a duty on PHS to warn or instruct patient of the MRSA infections.
Finding that there is no existing duty on the part of PHS to warn prison employees, the court stated that this issue was one of first impression. In determining whether to impose a new duty in this situation, the court stated that the legislature is in a better position than the judiciary to balance the policy considerations in creation of a new duty.
The court concluded:
[T]he common pleas court was correct in determining that Appellee had not asserted a cause of action under DiMarco, Troxel, or Section 324A of the Second Restatement. Rather, as the court recognized, Appellee's request for the imposition of a new, affirmative, common-law duty in tort on the part of physicians to undertake third-party interventions in a prison setting required a broader policy assessment. In the absence of policy arguments or a request for an opportunity to develop a record, the court did not err in applying the default approach of declining to impose upon professional undertakings new affirmative common-law duties running to third-parties to the professional relationship. Moreover, the present appeal does not afford an adequate foundation to make an informed social policy assessment which would support the imposition of a new affirmative duty on physicians to make third-party interventions. See generally PriceWaterhouseCoopers, 605 Pa. at 301 & n.27, 989 A.2d at 332-33 & n.27 (referencing the General Assembly's superior policymaking resources and commenting that responsible decision-making in areas of public impact requires consideration of broader potential social effects).

The Pennsylvania Supreme Court reversed and remanded for reinstatement of the trial court’s order sustaining Defendant’s preliminary objections and dismissing the case.
A dissent was filed by Justice McCaffery. He stated, “As I read the Complaint, its allegations support the finding of a duty consistent with DiMarco, Troxel, and Section 324A of the Restatement, and I must respectfully dissent.” Justice McCaffery focused on DiMarco and Troxel’s holdings that physicians can owe a duty to non-patients. Unlike the majority, he did not find that the scope of the duty in DiMarco and Troxel only extends to advising the patient, rather than non-patients.

[1] Even aside from the duty issue, Plaintiff’s case had difficulties. It appears that she would have to show that PHS breached the standard of care by failing to diagnose the infections. She would also have to show that her infection came from one of the inmates, not from an outside source.
[2] In DiMarco, the court held that, when a physician fails to adequately inform a woman on methods to prevent spreading hepatitis B to her boyfriend, the physician can be liable to the boyfriend if he contracts the disease.
[3] In Troxel, the court held that, when a physician fails to adequately inform a patient on how to prevent the spread of a communicable disease to pregnant women and their unborn children, the physician can be liable to the child.
[4] Section 324A provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
[5] In Emerich, a woman was murdered by her ex-boyfriend. For a period of time, the woman and her then-boyfriend were being treated at the same mental health center. After the woman ended the relationship, the ex-boyfriend informed a counselor at the center that he was going to kill the woman. He subsequently killed the woman. After the woman’s death, wrongful death and survival actions were brought against the center. The court stated, “[W]e find that the special relationship between a mental health professional and his patient may, in certain circumstances, give rise to an affirmative duty to warn for the benefit of an intended [non-patient] victim.”

Sunday, January 13, 2013


Many people do not know the extent to which tort reform has progressed at the state level. This page, at the PA courts website, has some good information on the impact of Pennsylvania’s 2002 MCARE Act.

The MCARE Act placed additional demands on medical malpractice plaintiffs. Most importantly, it required that they bring the lawsuit in the county where the malpractice occurred[1] and it required a “certificate of merit” by a qualified physician prior to filing.[2]
The number of medical malpractice cases filed statewide from 2000 through 2011 and the percentage of defense verdicts[3] in cases that went to trial are below. Note the decrease in the number of cases filed after 2002.
2000:   2,632
2001:   2,659
2002:   2,904
2003:   1,712 (73% Defense verdicts in cases that went to trial from 2000 through 2003)
2004:   1,819 (78.5% Defense verdicts in cases that went to trial)
2005:   1,711 (80.3% Defense verdicts in cases that went to trial)
2006:   1,704 (83% Defense verdicts in cases that went to trial)
2007:   1,641 (82.7% Defense verdicts in cases that went to trial)
2008:   1,602 (81.4% Defense verdicts in cases that went to trial)
2009:   1,533 (85.1% Defense verdicts in cases that went to trial)
2010:   1,491 (81.6% Defense verdicts in cases that went to trial)
2011:   1,528 (70.9% Defense verdicts in cases that went to trial)
My guess is that, given the headlines about large jury verdicts and the medical malpractice “crises,” the average person does not know of the significant decline in cases filed or the large percentage of trials that result in defense verdicts.[4] 

[1] This reduces “forum shopping” on the part of plaintiffs, making it more difficult to bring cases in favored counties.
[2] This has the impact of requiring additional, sometimes significant, expense on the plaintiff’s part prior to filing.
[3] Defense verdicts are verdicts in which the plaintiff was not awarded anything.
[4] Of course, because many cases settle, this information does not tell the full story.

Sunday, January 6, 2013


The PA Superior Court recently issued an important decision in Wilson v. PECO, 2012 PA Super 279 (2012). The plaintiff was injured while crossing an intersection in order to reach a SEPTA bus stop. PECO owned and maintained a streetlight at the intersection. Plaintiff alleged that the streetlight inadequately illuminated the intersection.

Discovery revealed that the streetlight was placed in July 1970. PECO failed to update the streetlight for 30 years, although the road doubled in width and volume increased during that period of time. Further, the arm of the streetlight did not extend out far enough to adequately cover the entire roadway.
The police officer who conducted the initial investigation of the accident scene noted that the light bulb was an “old, regular type of light” and that the streetlight was “antiquated.” The officer and the driver of the vehicle that struck Plaintiff testified that the intersection was dark. Plaintiff argued that new technology was available that would have made the intersection safe.

At issue was the extent of PECO’s duty to maintain the streetlight. PECO argued that it adequately discharged its duty to maintain the light by “providing electricity and changing light bulbs every four years.” The trial court agreed and granted summary judgment to PECO.

The Superior Court found genuine issues of material fact that precluded the entry of summary judgment. The court therefore reversed and remanded for further proceedings.
At the heart of the Superior Court’s decision was Restatement (Second) of Torts §323. Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
The Superior Court stated,
Contrary to the trial court’s determination, there exists a genuine issue of material fact with regard to whether PECO undertook its duty with reasonable care. Likewise, there are facts upon which a jury could conclude that PECO’s duty extended beyond merely providing electrical service and hiring another company to change the light bulbs every four years.
Because there was evidence that the streetlight was not updated and inadequately illuminated the intersection, the Superior Court left it for the jury to determine whether PECO exercised reasonable care in discharging its duty to maintain the streetlight.
A dissent was filed by Judge Fitzgerald. Judge Fitzgerald stated,
To the extent [Plaintiff] contends that PECO failed its contractual duty to West Norriton Township by providing electricity and changing the light bulbs, and that such failure resulted in Appellant’s harm, I would hold that proximate cause is lacking for her negligence cause of action . . . To the extent [Plaintiff] contends that PECO had a duty to “update and modernize” the streetlight in question because of increased traffic . . . I would hold that she has not identified material issues of fact regarding PECO’s knowledge of a duty.
If you have been injured by the negligence of another, please contact me for a free consultation at 610-584-9400 or