Health Care Liability Law Alerts
Delaware
by Monica Horton, Esq. (302.552.4377 or mahorton@mdwcg.com)
Doctor who referred a patient to a specialist had no duty to the patient after the referral.
Deborah L. Spicer, individually and as Parent and Natural Guardian of Brittany Spicer, a minor v. Abimbola Osunkoya, M.D., and Delaware Primary Care, LLC, No. 102, 2011 (Nov. 15, 2011); by Justice Carolyn Berger of the Delaware Supreme Court
Upon finding that a doctor who referred a patient to a specialist had no duty to the patient after the referral, the Delaware Supreme Court affirmed the trial court's grant of summary judgment to a defendant. In this medical malpractice action, defendant, Dr. Osunkoya, filed a Motion for Summary Judgment in which he asserted that he had no duty to the plaintiff after he referred her to a specialist and that his referral was not the proximate cause of her injuries. The trial court granted the defendant's motion, after which the plaintiff filed an interlocutory appeal to the Delaware Supreme Court. In making its decision, the Court considered the holdings in other jurisdictions that "[i]t seems to be the universal rule that a physician who . . . refers a patient to a specialist because the patient's ailment is or may be outside his field of competence is not liable for the negligence of the physician to whom the referral is made." The Court specifically noted that in this case, Dr. Osunkoya had no direct involvement in the plaintiff's care after he referred her to the specialist. Furthermore, the Court determined that any alleged negligence on the part of Dr. Osunkoya was not a proximate cause of the plaintiff's injury, as the full responsibility for plaintiff's care was transferred to the specialist, who acted independently in his treatment of the plaintiff when Dr. Osunkoya made the referral.
Florida
By Andrea Diederich, Esq. (407.420.4412 or aldiederich@mdwcg.com)
Failure to provide a patient's medical records within ten days constitutes evidence in support of waiver of plaintiff's requirement to provide a corroborating medical opinion prior to filing suit for medical malpractice, despite plaintiff's failure to provide pre-payment for records.
Houston v. GEO, 2011 Fla. App. LEXIS 16980 (Fla. 4th Dist. Oct. 26, 2011)
The plaintiff, an indigent inmate acting pro se, asserted that he was relieved of the requirement to provide a corroborating medical expert opinion prior to filing his medical malpractice complaint because the doctors and operator of the corrections facility where he was incarcerated failed to comply with § 766.204, Fla. Stat. by not providing him with copies of his medical records. When requesting his medical records, the plaintiff advised the defendants that he did not have money to pay for the records and requested that a lien be placed on his account pertaining to the charges for the medical records. The defendants responded by offering to allow the plaintiff to review his medical records, refused to provide copies of the records until pre-payment was received and denied the plaintiff's request to put a lien on his account. The court agreed with the plaintiff, finding that the failure to provide medical records as required under § 766.204(1), Fla. Stat. obviated the necessity of providing a corroborating affidavit under § 766.204(2). Although defendant physicians and hospitals often insist on pre-payment for medical records, they will need to consider providing the records without securing pre-payment in order to avoid potential waiver of the corroborating affidavit requirement.
New Jersey
by Nicholas Rimassa, Esq. (973.618.4153 or narimassa@mdwcg.com)
The New Jersey Supreme Court places another requirement upon litigants under the Affidavit of Merit Statute.
Buck v. Henry, 207 N.J. 311 (2011)
The plaintiff was diagnosed with mild depression and insomnia and was prescribed Zoloft and Ambien by the defendant physician. Weeks later, the plaintiff took an Ambien and fell asleep while inspecting his gun. He awoke in the middle of the night to what he thought was a ringing phone. The plaintiff had his gun in his right hand, then allegedly reached for the phone with his left, somehow discharging the barrel of gun into his mouth, resulting in serious and permanent injuries.
The plaintiff filed suit against Dr. Henry, a board certified emergency medicine physician, alleging medical malpractice, and against Sanofi-Aventis, alleging product liability. The plaintiff served two Affidavits of Merit, one from a psychiatrist and another from a specialist in emergency medicine. The defendant contended he was rendering care and treatment to the plaintiff in his role as a practitioner in family medicine. The trial court did not conduct a Ferreira case management conference despite being requested by the defendant.
The defendant filed a summary judgment motion contesting the sufficiency of the Affidavits of Merit. The defendant physician submitted a certification that he specialized in family practice medicine when providing care and treatment. The plaintiff opposed, arguing the psychiatry Affidavit of Merit was sufficient as treating a patient with insomnia fell within the "general practice" of medicine. The plaintiff further argued that one cannot be a specialist in family medicine absent board certification. The trial court ultimately granted the motion, and the Appellate Division Affirmed in an unpublished opinion.
The Supreme Court reversed and remanded. The Court relied on the fact that the plaintiff did not have the defendant's certification, which provided he was a family-medicine practitioner when treating the plaintiff, until the pendency of the motion for summary judgment. The Court further noted, "There are no villains here, but we have a record that bespeaks confusion." The Court held this was not the type of meritless lawsuit the Affidavit of Merit was intended to "weed out."
Ultimately, the Supreme Court carved out a requirement that, moving forward, "a physician defending against a malpractice claim (who admits treating the plaintiff) must include in his answer the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty."
Pennsylvania
by Victoria Scanlon, Esq. (570.496.4652 or vascanlon@mdwcg.com)
Plaintiff's expert for certificate of merit purposes must have qualifications such that a trial court would find them sufficient to allow that expert to testify at trial.
Fallon v. Hahnemann Hospital University Medivac, et al., 2011 Phila. Ct. Com. Pl. LEXIS 166 (Allan L. Tereshko, J., Jul. 7, 2011)
If a plaintiff's claim against a medical professional is meritless and the matter is terminated, it may be worthwhile to request from plaintiff's counsel, pursuant to Pa.R.C.P. No. 1042.8, the written statement obtained from the licensed professional upon which the certificate of merit was based. An expert used to support a certificate of merit must have qualifications such that a trial court would find them sufficient to allow that expert to testify at trial. In Fallon, the court concluded that the plaintiff's certificate of merit expert was not qualified. The court noted that an expert must hold an "unrestricted" license; i.e. the medical license must not be subject to any limitations or restraints. Fallon's expert, who is also an attorney, held only an active-retired medical license. The court found this insufficient. Additionally, the court found that the written statement by the plaintiff's certificate of merit expert was not critical of the care provided by the defendants. The court concluded that plaintiff's counsel should never have filed a certificate of merit against the defendants and sanctioned plaintiff's counsel and his law firm. The court awarded reasonable counsel fees and expenses in the amount of $26,667.33.
