This past year has brought two new precedents in medical malpractice cases in the State of Pennsylvania. Both changes may hinder the defense of medical malpractice lawsuits because of the increased authority given to the jury and the allowance of witness testimony that was previously precluded. The first change involves the “discovery rule”, the rule that begins the running of the clock for the two-year Statute of Limitations (SOL). Under this rule, a person has 2 years from he/she knows or should reasonably know he/she sustained an injury to file a lawsuit. Previously, a judge would determine if the Plaintiff knew or reasonably should have known there was an injury. This is now a question of fact for the jury. The second precedent gives more power to friends and relatives who were present at the informed consent discussion to testify not just to what was said, but also to what the patient believed.
The case of Wilson v. El-Daief involved a woman who underwent two wrist surgeries performed by the defendant. After the second wrist surgery, in August 2000, she suffered from immediate post surgery pain in her right wrist, and in a few weeks began to face abnormalities in the feeling and functioning of her right hand, elbow, and shoulder. The Patient suspected there was a problem after her visit of September 24, 2001 and sought the opinion of another orthopod in October 2001. This orthopod determined her radial nerve was severed.
The “discovery rule” prevents the clock of the SOL from beginning too early, before the injury could have been discovered. This means that the SOL does not begin at the time the plaintiff suffers a complication, but rather at the time the plaintiff learns or should, upon reasonable efforts, learn the complication is related to the procedure that the procedure was not performed in accordance with the standard of care. While one purpose of the SOL is to make sure the Plaintiff has enough time, it also recognized that the more time that passes, a case may be harder to defend because evidence is lost, memories fade and witnesses die or move away.
According to all prior interpretations of the discovery rule, the 2 year Statute of Limitations, clock should have started on September 24, 2001, when she suspected a problem, and ended on September 24, 2003. However, the plaintiff did not file suit until October 10, 2003, 16 days after the Statute of Limitations ran out. The trial Court granted the defendants Motion for Summary Judgment and the Superior Court affirmed that the statute of limitations expired and the case was dismissed.
The case was appealed to the PA Supreme Court. The Supreme Court ruled that, a jury rather than the Court is to make the decision whether the plaintiff made reasonable efforts to discover the injury, when the discovery was made, and when the statute of limitations clock began. Trial courts will be especially sensitive to this issue in close cases like this one.
The case of Fitzpatrick v Natter was an “informed consent” case involving a woman in her 40s suffering from Multiple Sclerosis (MS). In 1998, the disease was in advanced stages and the plaintiff had difficulty walking, using mainly a scooter to move around, and facing intermittent problems with pain and incontinence. In May 1999, the plaintiff had surgery to install a Baclofen pump. After some initial improvement, her disease worsened. She was entirely wheelchair bound and suffered increased problems with incontinence. Her husband was forced to quit his job in order to care for her full time.
The couple sued the neurologist and neurosurgeon claiming negligence and lack informed consent. The case proceeded to trial, where the plaintiff-wife did not testify, although fully capable. Instead, her husband testified about what she believed going into the surgery. He stated the neurosurgeon had never warned the plaintiff-wife there was a chance her condition and incontinence could be come worse. He also testified that they made all treatment decisions together and if she had known about the possible deterioration she would have never elected to have the surgery. The jury found in favor of the plaintiffs.
The duty of a physician is to have a discussion of the common and most severe risks of the proposed procedure, the alternatives and the risks of doing nothing. To prove a claim for lack of informed consent, the Plaintiff must show a risk was not disclosed that would have been a substantial factor in causing them to refuse the surgery. The defense argued that the husband’s testimony should not have been admitted as evidence of what his wife, the patient, would have considered a substantial factor. The trial court agreed and overturned the jury’s verdict. The Superior Court agreed with the trial court.
On the appeal, the Supreme Court found the husband’s testimony to be admissible and would be given the weight it deserved by the jury considering the relationship between the parties. It held while his testimony wad circumstantial evidence, this is still admissible evidence. The plaintiff in this trial was perfectly capable of testifying, but the Court noted other patients might not be at the time of trial. If the malpractice results in death, the significant other is the only one who can testify and give evidence of what was discussed and what the patient considered important. The Court concluded that limiting the merit of a significant other’s testimony would hinder justice, whether the malpractice did or did not result in death. This case was remanded to the Superior Court to review other issues related to expert qualifications.
Wilson v. el-Daief – 2009 – PA-0129:758 (2/19/2009) A.2d PA
Fitzpatrick v. Natter – 961A.2d.1229, 1236 (PA) 2008