.

Matthew P. Keris

Chair, EMR and Audit Trail Practice

Shareholder

Portrait of Matthew P. Keris

Matthew has defended health care providers, businesses and device manufacturers in civil litigation for more than two decades. He is a shareholder in the firm's Health Care Department and Chair of the EMR and Audit Trail Practice Group. Matt is also an Mcare-approved mediator.

Matt had the privilege of trying the first Pennsylvania civil jury trial to verdict during the COVID-19 Pandemic in July 2020.

In addition to his litigation practice, Matt is a recognized thought leader whose insights have been featured by prominent outlets including NBC News, Thomson Reuters, and Law360. He is frequently invited to provide commentary for leading industry publications such as The Legal Intelligencer, Becker’s Hospital Review, ED Legal Letter, Risk Review, Litigation Management, and Counterpoint. Matt also serves as an editor of the health risk management journal, Patient Safety.

Matt currently serves on the advisory committee of American Legal Connections (ALC) and serves as a co-editor of its’ newsletter. He has previously served as President of the DRI Foundation, Pennsylvania Defense Institute (PDI) and the Pennsylvania Association for Health Care Risk Management. He also previously served on the Board of Directors of both DRI and PDI. In 2023, Matt was the recipient of the DRI Foundation Community Service Award, which honors a DRI member who has demonstrated a commitment to the well-being of the general public by initiating or participating in programs which have a positive impact on the community.

    • Roger Williams University School of Law (J.D., 1996)
    • Shippensburg University of Pennsylvania (B.A., cum laude, 1993)
    • Pennsylvania, 1996
    • U.S. District Court Middle District of Pennsylvania, 2000
    • New York, 2011
    • U.S. District Court Northern District of New York, 2020
    • Connecticut, 2021
    • U.S. Supreme Court, 2023
    • AV® Preeminent™ by Martindale-Hubbell®
    • The Best Lawyers in America®, Medical Malpractice Law - Defendants (2023-2026)
    • The Best Lawyers in America®, Litigation – Health Care (2024-2026)
    • Defense Research Institute Foundation Community Service Award, 2023
    • DRI Leadership Award 2023
    • “Service Award” by the Defense Research Institute, October 2021
    • "Exceptional Performance Citation" by the Defense Research Institute, July 2015
    • American Legal Connections, Healthcare Advisory Committee Member
    • American Society for Health Care Risk Management (ASHRM)
    • Claim and Litigation Management Alliance (CLM), Co-Chair for Pennsylvania Membership Development, 2012
    • Defense Research Institute (DRI), Atlantic Region Director, 2019-2021; State Membership Chairman, 2017; State Representative to DRI on behalf of Pennsylvania Defense Institute, 2017
    • DRI Foundation, President, 2021-2023
    • Healthcare Standards Institute (HSI), Workgroup on AI Governance Standards for Healthcare Operations
    • Lackawanna County Bar Association
    • Pennsylvania Association for Health Care Risk Management (PAHCRM), President, 2026, 2016, 2012
    • Pennsylvania Bar Association, Health Care Law Committee, Secretary, 2010-2012; Health Care Law Subcommittee on Civil Litigation, Chairman, 2011
    • Pennsylvania Coalition for Civil Justice Reform
    • Pennsylvania Defense Institute (PDI), President, 2014; Executive Board, 2009-2013; Board of Directors, 2007-2009, 2015-2023; state representative to the Defense Research Institute, 2017
    • Obtained a defense verdict in a long-term case that included a unique spoliation issue, allegations of cover-up regarding the cause of death and a “no show” plaintiff-son. A longtime nursing home resident died after suffering head trauma following a fall. The plaintiff was the resident’s son, who was not his mother’s guardian and, according to staff, had not visited her in the three years that she was in residence. The cause of death was “end stage dementia” and upon learning the same, the plaintiff contacted a lawyer who delivered the body across the state to a forensic pathologist for a private autopsy, and the body was subsequently cremated. No notice was provided to the nursing home administration of the impending autopsy. The forensic pathologist alluded that the cause of death was not end stage dementia, but blunt force trauma. The defense did not learn about the private autopsy until years later when the report was provided in discovery. A motion for sanctions for spoliation was filed by the defense which was followed by depositions of the funeral home staff, and a hearing involving the forensic pathologist and the attending physician. The forensic pathologist admitted that autopsy specimens were lost and photos claimed to not exist by plaintiff’s counsel, in fact were on her computer. Although the spoliation motion was denied, the court held that at trial, the defense could question the forensic pathologist on the cremation, destroyed specimens and failure to produce the autopsy photographs at trial. On the eve of trial, the judge proctored an agreement between the parties to arbitrate the case “on expert reports only.” At arbitration, plaintiff’s counsel continued to pursue a conspiracy theory about “the true cause of death” along with standard negligence criticisms about fall prevention. The plaintiff was cross-examined on a prior crimen falsi conviction and an Orphans’ Court petition initiated by the local Area Agency on Aging where the deceased resident complained that she was afraid of her son which was relevant to his “loss of society and companionship” claim. 
    • Received a unanimous defense jury verdict within thirty minutes of deliberation in a five-day fire-loss subrogation trial. This case was one of the first Pennsylvania civil jury trials held during the COVID-19 pandemic. Taking into account safety and social distancing protocols, jury selection took place in a local school auditorium, two witnesses presented testimony via Zoom, and everyone present in the courtroom was subject to temperature screenings and required to wear a face covering. Given the current national health situation, this trial could serve as an example of how the court system and counsel can adapt to the changing health and legal landscape. 
    • Obtained entry of judgment of non pros based on the plaintiff’s failure to timely and properly file a Certificate of Merit (COM) in accordance with Pa.R.C.P. 1042.3 on behalf of a nursing home chain and its consulting company. With the Complaint, plaintiff attached an expert report from a nursing expert but did not attach a COM. Defendants filed a Notice of Intent to Enter Judgment of Non Pros, and judgment was subsequently entered. The plaintiff then filed a Petition to Strike/Open the Entry of Judgment of Non Pros, arguing that the expert report attached to the Complaint constituted a COM. The defense successfully fought the plaintiff’s attempts to open the judgment. The Court ultimately found that plaintiff’s repeated failures to comply with the applicable rules placed their case “beyond the purview of equitable relief,” and therefore reinstated the entry of judgment and dismissed plaintiff’s Complaint with prejudice.
    • Received a defense verdict in less than one hour in a dental malpractice case involving allegations of the use of excessive force and the failure to obtain the patient’s informed consent after a patient’s jaw was fractured during a molar extraction. It was admitted that jaw fracture was a known risk of the extraction, but that the dentist did not warn the patient of this risk. It was also conceded that the dentist caused the fracture. Lastly, the patient’s damages were not contested, which included the pain and suffering associated with the fracture and permanent numbness to the lower jaw. On cross-examination of the patient’s seasoned expert, he was confronted with prior inconsistent testimony regarding his experience in extracting molars and his opinion that all risks of a procedure need to be shared with the patient. Further, the expert agreed with the defense’s argument that the risk of jaw fracture of an erupted right lower molar was less than .0009% and the patient had a better chance of dying from complications associated with the extraction than suffering a fracture. The jury was persuaded by the defense’s arguments early in the case due to the thorough cross-examination of the patient’s expert. 
    • Received defense verdict in a wrongful death and survival medical malpractice arbitration involving a single mother in her twenties from toxic shock syndrome. The plaintiff was admitted to a hospital facility with a provisional diagnosis of anaphylaxis secondary to a medication allergy. The patient deteriorated under the supervision of a nurse practitioner while on a telemetry unit and was eventually transferred to the intensive care unit. The patient succumbed to her condition several days later. There was a substantial future economic damage and pain and suffering component to the case given the plaintiff’s young age, rapid decline and extent of necrosis (face, upper and lower extremities).
    • Obtained a defense verdict in a nursing negligence claim. The plaintiff alleged to have suffered a fall in a hospital bathroom three days post-operatively that re-injured his surgically repaired knees. The nurses denied the patient fell to the ground and testified, consistent with their charting, that the patient lost balance in the bathroom and sat on a commode. There was a significant economic damage claim in that the plaintiff was a young restaurant owner who suffered two distinct orthopedic injuries that required multiple surgeries and additional future care. The jury returned a defense verdict 50 minutes after deliberation began, finding that the nurses were not negligent.
    • Obtained a defense verdict in a medical malpractice trial involving a middle-aged mother of two who was allegedly left a quadraparetic and wheelchair-bound as a result of a physician’s failure to timely diagnose and treat an infectious process of the cranial nerves and cerebellum. The plaintiff argued that as a result of the alleged negligence, she needed home health care for the rest of her life and submitted expert testimony arguing for the recovery of boardable future medical expenses totaling $4 million and past and future pain and suffering. The last settlement demand was $2 million.  No settlement offers were made prior to or during trial.
    • Successfully argued for the dismissal of punitive damages and Scampone corporate negligence claim against a Pennsylvania nursing home involving a resident who was injured while undergoing physical therapy at the facility. At the conclusion of considerable discovery yielding thousands of pages of administrative documents and multiple corporate defendant witnesses and former employees of the facility, summary judgment was granted as to plaintiff’s claims that neglect, lack of appropriate staffing and the facility owner’s general desire to make a profit over patient care caused or contributed to her injuries. In light most favorable to the plaintiff, the court held that the resident did not link the allegations of neglect and understaffing to her injuries which occurred in an acute incident during physical therapy. In addition, the court rejected the possible imposition of punitive damages, citing deposition testimony from the plaintiff about her interactions with the nursing home staff that was inconsistent with conduct warranting the imposition of punitive damages and the opinions of her own experts.
    • Inaugural PDI & PAJ Trial Academy, Faculty, Penn State School of Law, State College, PA, May 27-29, 2026
    • Ambient Listening and Surgical Black Boxes: A Primer, Panelist, ALC Virtual Education, April 19, 2026
    • Current Landscape in Nursing Home Litigation, Defense Counsel Panelist, Pennsylvania Bar Institute Virtual Education, April 17, 2026
    • A Conversation with RaDonda Vaugh on Criminalizing Errors, PAHCRM Annual Meeting, State College, PA,  April 9, 2026
    • Latest Trends and Risks of AI’s Integration into Medicine, Hawaii Association of Healthcare Risk Management Virtual Education, March 24, 2026
    • Anticipated AI Discovery Issues in Litigation, Association for Corporate Counsel Virtual Education, February 12, 2026
    • Anticipated Discovery Issues with Use of AI in Health Care: Views from the Plaintiff and Defense Perspective, Philadelphia Court of Common Pleas, In-Person Continuing Judicial Education, co-presenter, Philadelphia, PA, October 30, 2025
    • Anticipated AI Discovery Issues in Malpractice Litigation, ALC webinar, October 23, 2025
    • The Role of AI and EMRs in Discovery, MCIC Vermont Annual Client Education Conference, National Harbor, MD, October 22, 2025
    • When AI Meets Medicine, State Volunteer Mutual Insurance Company,  Podcast Guest, October 10, 2025
    • Audit Trail 101: Views from the Plaintiff and Defense Perspective, Part I, Philadelphia Court of Common Pleas, In-Person Continuing Judicial Education, co-presenter, September 25, 2025, Philadelphia, PA
    • Pennsylvania Medical Malpractice Legal Update, Pennsylvania Coalition for Civil Justice Reform webinar, July 21, 2025
    • New Jury Considerations in the Age of Big Law, Verdicts, and Medicine; and AI in Healthcare: Views from a Clinical and Legal Perspective, Hospital Insurance Forum 2025 Conference, Charleston, SC, June 2025
    • How to Prepare for AI from a Medico-Legal Perspective, MPLA Annual Meeting, Austin, TX, May 22, 2025
    • Leave No Footprint: Tips to Reduce Scrutiny on Non-Charted Information, University of California Health System Virtual Risk Summit 2025, May 19, 2025
    • Behind the Scenes: Understanding New Discovery Tactics and the Impact on Clinical Documentation, Virtual Allied World Presentation, May 15, 2025
    • Tips to Minimize and Manage Your Audit Trail Footprint, New England Regional Healthcare Risk Management Conference, Portland, ME, May 5, 2025
    • Legal Update, co-presenter, American College of Surgeons Keystone Chapter Spring Conference, Wilkes-Barre, PA, May 2, 2025
    • Tips for Keeping a “Clean” Medical Record in an Electronic World, 2025 PAHCRM Annual Education Conference, Lancaster, PA, April 16, 2025
    • Texting: A Tool and a Trap, American Legal Connections webinar, February 6, 2025
    • AI in Civil Litigation Practice: An Intro and Discussion on What is Coming, Philadelphia Association of Defense Counsel webinar, January 21, 2025
    • A-Z on AI! Artificial Intelligence Litigation Trends and Ethical Issues, webinar panelist, Pennsylvania Coalition for Civil Justice Reform, December 9, 2024  
    • Defending Artificial Intelligence Claims, AM Best Webinar, November 13, 2024
    • Doing It Right the First Time: Recommendations to Safely Use AI in Health Care, ASHRM 2024 Annual Conference, San Diego, CA, October 8, 2024
    • Multi-Disciplinary Evaluation of Opportunities and Risks with Artificial Intelligence (AI) in Health Care, ASHRM 2024 Annual Conference, San Diego, CA, October 8, 2024
    • Public Perception of "Big Medicine" Requires New Jury Considerations, ASRHM 2024 Annual Conference, San Diego, CA, October 7, 2024
    • The Future is Now: How AI is Being Used with Data Analytics Today and Maybe Tomorrow, panelist, Candello Annual Summit, Boston, MA, September 11, 2024
    • Multi-Disciplinary Evaluation of Liability Risks of AI in Health Care: The Board Focus, co-presenter, American Hospital Association Leadership Summit, San Diego, CA, July 22, 2024 
    • Advancement of AI Into Medicine, AEIX Event, Tysons Corner, VA, June 6, 2024
    • Charting Tips to Help the Future You, LVHN Annual Risk Symposium, Center Valley, PA, May 18, 2024
    • Coming to a Case Near You: AI in Medicine, Marshall Dennehey Trends in Health Care and Health Law Seminar, May 9, 2024
    • EHRs Under Examination: The Role of Clinical Informatics Experts in Legal Proceedings, AMIA 2024 Clinical Informatics Conference, Minneapolis, MN, May 2024 
    • Artificial Intelligence in Healthcare: An Introduction, 2024 AALNC Annual Forum, Pittsburgh, PA, April 19, 2024
    • Guidance On Navigating Your Institution During Multiple Legal Investigations, PAHCRM Spring 2024 Educational Meeting, Lancaster, PA, April 12, 2024
    • Advice for the Efficient Integration of AI Into Medicine, Co-Presenter, Hospital Insurance Forum Annual Meeting, Scottsdale, AZ, March 18, 2024
    • Voir Dire of an EMR/Audit Trail Expert, American Legal Connections webinar, March 15, 2024
    • Roundtable on Social Inflation, Co-Moderator, DRI IRT Meeting, Chicago, March 13, 2024
    • The New Liability Target: Forensic Patient Record Interactions, MPL Dental Workshop, Savannah, GA, February 16, 2024
    • Liability Risks of AI in Healthcare, co-presenter, 1st Annual Upstate Educational Meeting, Association for Healthcare Risk Management of New York, Saratoga, NY, October 30, 2023
    • Latest Developments on Healthcare AI Liability and EMR Site Inspections, co-presenter, American Legal Connections, webinar, October 26, 2023
    • Evaluating the Use of AI in Obstetric Diagnostics: Understanding Enhanced Capability and Inherent Risks, Forum on Obstetric Malpractice Claims, Philadelphia, PA, October 12, 2023
    • The Good, Bad, and Ugly in Defending a Hospital Security Assault Case, Moderator, ASHRM Annual Meeting, Minneapolis, MN, October 2, 2023
    • Medical Record Audit Trail Data and Inspections: What to Do When Data and Inspections are Requested in Litigation, panelist, Florida Society for Healthcare Risk Management and Patient Safety annual meeting; Orlando, FL, August 24, 2023
    • Criminal Prosecutions: Dobbs and the Future of Care, American Legal Connections Healthcare Symposium, Atlanta, GA, July 27, 2023 
    • Mistake or Crime?: The Criminalization of Healthcare Errors, panelist, Medical Professional Liability Association Conference, New Orleans, LA, May 18, 2023
    • AI Liability: What is Brewing and What We Will See, University of Rochester webinar, April 21, 2023
    • Best Practices for an Audit Trial Expert Deposition, co-presenter, American Legal Connections, webinar, April 6, 2023
    • Defending Rule 30(b)(6) Corporate Designee Depositions, co-presenter, ALC Regional Meeting, Atlanta, GA, March 23, 2023
    • Criminalization of Medical Errors - Will it Make Us Safer?, co-presenter, Hospital Insurance Federation, Annual Meeting, Scottsdale, AZ, March 20, 2023
    • Legal and Ethical Pitfalls in Managing Dual Civil and Criminal Investigations, DRI Medical Liability and Health Care Law Seminar, Chicago, IL, March 10, 2023
    • Relationships Matter: A Frank Discussion of Hot Button Issues Facing Claims Professionals and Counsel, panelist, DRI Insurance Roundtable, Chicago, IL, March 8, 2023
    • Artificial Intelligence in Healthcare: The Good, Bad, and Ugly, SCAHRM webinar, March 28, 2023
    • Fostering a Culture of Success: How to Get Your Lawyers’ and Staff’s Mindset from Surviving to Thriving, co-presenter, Association of Legal Administrators, Philadelphia Chapter webinar, January 26, 2023
    • The New Liability Issues of Artificial Intelligence in Health Care, Ethicon, a division of Johnson and Johnson, webinar, December 12, 2022
    • Recent Cases Warn Defendants Not to Become Lost on the Audit Trail, American Legal Connections webinar, December 1, 2022
    • It’s Not All About the Virus: Defending “Other” COVID-19 Pandemic Claims, ASHRM Annual Conference, Boston, MA, September 13, 2022
    • Legal and Technical Arguments to Manage, Explain and Defend Audit Trail Information, DRI Senior Living and Long-Term Care Litigation Seminar, Nashville, TN, September 9, 2022
    • "Managing Parallel Criminal and Civil Investigations," American Legal Connections Healthcare Risk and Litigation Symposium, Atlanta, GA, July 28, 2022
    • "Litigation Risks Associated with AI in Healthcare," Thomson Reuters webinar, June 27, 2022
    • "Artificial Intelligence and Dentistry: Protecting Yourself From Liability," client webinar, June 16, 2022
    • "Risks and Legal Aspects of Artificial Intelligence in Health Care," Ohio Hospital Association Annual Meeting, Columbus, OH, June 14, 2022
    • A New Frontier: Maintaining Transparency and Defenses Following the RaDonda Vaught Criminal Verdict, CHART Institute virtual conference, June 7, 2022
    • New Risks With the Application of Artificial Intelligence to Medicine, Washington Healthcare Risk Management Society Annual Meeting, Seattle, WA, June 3, 2022
    • RaDonda Vaught: What Happened and What Can We Learn From Her Trial, virtual lesson, Duke University School of Nursing, June 2, 2022
    • A Hard Task: Balancing Transparency While Avoiding Liability Following the RaDonda Vaught Criminal Verdict, webinar, West Virginia ASHRM Chapter, May 20, 2022
    • Artificial Intelligence in Healthcare: Revolutionary or Risky?, panelist, Medical Professional Liability Association Annual Meeting, Salt Lake City, UT, May 13, 2022 
    • The New Reality - Managing the EMR and Audit Trail, panelist, New England Regional Healthcare Risk Management Conference, Groton, CT, May 2, 2022
    • A Discussion on the RaDonda Vaught Criminal Trial, panelist, New England Regional Healthcare Risk Management Conference, Groton, CT, May 2, 2022
    • Best Practices for Balancing Transparency While Avoiding Liability Following the RaDonda Vaught Criminal Verdict, American Society for Healthcare Risk Management, national webinar, April 15, 2022
    • Liability Issues with Artificial Intelligence in Healthcare Litigation, American Legal Connections, national webinar, January 27, 2022
    • Anticipated Liability Risks of Artificial Intelligence in Healthcare, ASHRM Annual Conference, October 4 (live session) and October 26, 2021 (virtual session)
    • Healthcare Acquired Infections in Nursing Homes and Hospitals: Standards of Practice, Claims, Defenses, Damages, Strafford Legal Publications National Webinar, October 19, 2021
    • Coming Soon: AI Issues in Healthcare Liability Claims, Pennsylvania Association for Healthcare Risk Management, September 17, 2021
    • The Risks and Legal Aspects of Artificial Intelligence in Healthcare, Hospital Insurance Federation webinar, May 19, 2021
    • The Future is Here: AI and Healthcare Claims, South Carolina Chapter of the American Society of Healthcare Risk Management webinar, April 23, 2021
    • Integrating Health Care and Technology: Apps, Medical Devices and AI, client webinar, February 18, 2021
    • Artificial Intelligence in Medicine: Risk Management and Litigation Issues, online continuing education conference, Pennsylvania Patient Safety Authority, January 12, 2021
    • It’s Not All About the Medicine: The New Scrutiny on Your EMR Documentation, presented at a virtual meeting of the Luzerne/Lackawanna Medical Society, November 18, 2020
    • The Return of Jury Trials: The Current State of Jury Trials in the Age of COVID-19, national teleconference for American Legal Connections (ALC), November 12, 2020
    • Learn From Those Who Know: Jury Trial Tactics During the COVID-19 Pandemic, DRI National Remote CLE, September 15, 2000
    • Lessons and Observations Made From a Socially-Distanced Jury Trial During the COVID-19 Pandemic, Inaugural PDI Remote CLE, September 10, 2020
    • Lessons Learned in with EMR Discovery, Hospital Insurance Federation (HIF), September 9, 2020
    • Managing EMR and Audit Trail Discovery, LAMMICO Defense Panel Meeting, August 20, 2020
    • Preparing A Claim for Trial: How Recent Issues, Decisions and Trends Are Impacting Litigation Outcomes, client webinar, June 4, 2020
    • “Warning Fatigue” Now a Matter of Criminal Liability: The Radonda Vaught Story, Pennsylvania Patient Safety Authority Webinar, May 24, 2020
    • Telehealth and Documentation in the Time of COVID-19: Information and Best Practices to Protect Patients and Clinicians webinar, May 14, 2020 
    • "Say 'Goodbye' to Medical Negligence Cases as We Know Them," The Legal Intelligencer, September 5, 2024 
    • "Litigation Landscape: Your GPS for Avoiding Legal Action," In Session with Allied World, Winter 2023
    • "Sanctions Against Health System Demonstrate That It's Time to Get Serious About Audit Trail Discovery," Journal of Healthcare Risk Management, August 18, 2022
    • "Evolution of the EMR: The Integration of AI in Medicine," The Legal Intelligencer, March 28, 2022
    • "Artificial Intelligence in Medicine Creates Real Risk Management and Litigation Issues," Journal of Healthcare Risk Management, September 2020
    • "A Civil Jury Trial During the Pandemic: Observations From Those Who Know," The Legal Intelligencer, August 7, 2020
    • "Report From the Trenches: Defending Patient Falls in Acute Care Settings," Becker's Hospital Review, August 28, 2018
    • "Negligent Advice of a Class III Medical Device Sales Rep," The Legal Intelligencer, Medical Malpractice Supplement, April 11, 2017
    • "A Pandora’s Box: The EMR’s Audit Trail," Counterpoint, newsletter of the Pennsylvania Defense Institute, February 2017
    • "It Ain’t Over ‘Til It’s Over: Judge Wettick Affirms Practice of Limiting Deposition Opinions of Defendant Physicians," Defense Digest, Vol. 22, No. 4, December 2016
    • "Wake Me Up!! I've Had Enough!! Litigation Nightmares With the Electronic Medical Record," The Risk Management Quarterly, newsletter of the Association for Healthcare Risk Management of New York, Inc. (AHRMNY)
    • "EMR's and Litigation: Issues Decided and What's Next?" The Legal Intelligencer, Medical Malpractice Supplement (page 5), April 12, 2016
    • Electronic Medical Records and Litigation, published by Thomson Reuters Legal, September 2014
    • "OMG?! The Impact of Social Media on the Tripartite Relationship," Co-Author, Litigation Management Magazine, Spring 2013
    • "What's It Worth? Best Practices in Defending Economic Damages in the Catastrophic Accident," Co-Author, Litigation Management Magazine, Fall 2012
    • "Reducing Medical Malpractice E-Discovery Issues and Costs," The Legal Intelligencer, February 14, 2012
    • "A View From the Trenches: Discovery Issues With Electronic Medical Records," Risk Rx, Special Edition on the Electronic Health Record, University of Florida, Vol. 8, No. 1 January-March, 2011; and Florida Hospital Association's Risk Review, August 23, 2011

Results

Defense Verdict Secured in a Contentious Long-Term Care Case

We received a defense verdict in a contentious long-term care case that included a unique spoliation issue, allegations of cover-up regarding the cause of death and a “no show” plaintiff. A longtime nursing home resident, who was suffering from “end-stage dementia,” died nine days after suffering head trauma following a fall. The plaintiff was the resident’s son who was not his mother’s guardian. The plaintiff contacted a lawyer who delivered the body across Pennsylvania to a forensic pathologist for a private autopsy. No notice was provided to the nursing home administration of the impending autopsy, despite the fact that the lawyer had sued the long-term facility several times in the past. The corpse was cremated shortly after the autopsy without an opportunity for the defense to examine the body. The defense did not learn about the private autopsy until years later, when the report was provided in discovery. A motion for sanctions for spoliation was filed by the defense, which was followed by depositions of the funeral home staff and a hearing involving the forensic pathologist and the attending physician. Although the spoliation motion was denied, the court held that the defense could question the forensic pathologist on the cremation, destroyed specimens and failure to produce the autopsy photographs at trial. On the eve of trial, the judge proctored an agreement between the parties to arbitrate the case “on expert reports only.” At arbitration, plaintiff’s counsel continued to pursue a conspiracy theory about “the true cause of death” along with standard negligence criticisms about fall prevention. The plaintiff was cross-examined on a prior crimen falsi conviction and an Orphans’ Court petition initiated by the local Area Agency on Aging, wherein the deceased resident complained that she was afraid of her son, which was relevant to his “loss of society and companionship” claim. Not surprisingly, the plaintiff denied every allegation of the Orphans’ Court petition, which detracted his appearance and credibility. 

Partial Summary Judgment on Behalf of a Nursing Home and its Corporate Defendants

In the complaint and throughout discovery, the plaintiff raised claims of overarching neglect in addition to a fall that occurred during physical therapy. The plaintiff alleged negligence, corporate negligence, and punitive damages premised upon allegations of understaffing, Department of Health violations and putting profits over patient care. The plaintiff sought to hold not only the nursing home, but also its management company and a holdings company, liable for such claims. The defense sought partial summary judgment and asked the court to limit the plaintiff’s claims to the fall only and argued that neither the record evidence nor the plaintiff’s expert reports supported the all-encompassing claims of neglect. The court agreed and narrowed the claims, thereby significantly hampering the plaintiff’s case. The court limited the claims to proceed at trial to the fall only. The court also dismissed punitive damages and dismissed the holdings company defendant outright.

Thought Leadership

Say ‘Goodbye’ to Medical Negligence Cases as We Know Them

September 5, 2024

For claims that do arise in the new era of AI use, we can anticipate they will be more complex, cost more to litigate and impact a larger class of patients.  

Defense Digest

On the Pulse…Marshall Dennehey’s National EMR and Audit Trail Practice Group Is Ready to Assist with Health Care Technology Litigation Issues

September 1, 2024

Several years ago, Marshall Dennehey recognized the plaintiff bar’s increased interest in pursuing two types of medical negligence cases: one on the medicine and the other on the electronic medical record (EMR). In response, it became one of the first, if not the first, defense firms to devote a practice group to assisting health care clients and other counsel with EMR and audit trail preservation, production, expert, and discovery issues. With the widespread integration of AI into health care, it is readily apparent that medical malpractice cases will become even more complex and expensive to litigate and will involve third-party technology vendors as parties. We can provide efficient and sound advice in this regard, in addition to the services we already provide. Our specialized and experienced practice group can assist health care systems and their counsel in many ways from discovery through trial. Our group routinely assists with formulating responses to novel discovery requests. In addition, we involve third-party electronic medical record vendors in the litigation when their assistance is necessary in discovery, whether it be to explain a production issue or include them in an ongoing discovery dispute. Along those lines, our group has had success compelling plaintiffs’ early disclosure of their EMR and audit trail experts for purposes of challenging their qualifications and representations to the court and counsel.  Deposition preparation is another area where this practice group provides focused assistance. We can help to correlate a provider’s involvement in the documentation in comparison to the audit trail, as well as provide support with respect to a corporate designee’s deposition relating to the preservation and production of the EMR. As the chart becomes more complex, witnesses need to be adequately prepared not only on the medicine, but on the EMR and AI as well. Advice on the retention of the most qualified, effective, and experienced experts is also a frequently provided service of the group. As chair of this practice subgroup, I have established a working relationship with the American Medical Informatics Association (AMIA) and its leadership on the provision of qualified expert services in the field of clinical informatics in health care litigation. Far too often, courts and counsel are relying on “junk science” from persons who claim to be EMR and audit trail experts, but who have sketchy and limited experience. By retaining appropriately trained clinical informatics (whom I refer to as “chart physicians”) to assist in their cases, health care systems can get a better handle on record production, reduce litigation expenses, and diminish discovery motion practice through the objective and qualified advice of a true expert on EMR-related issues.  On-site inspections and interactions with the EMR during discovery by plaintiff’s counsel is also becoming more of a regular request and is expected to occur more frequently. Our practice group will identify the appropriate records custodian to navigate the chart and prepare them in advance if they are asked questions during the inspection. We will also mandate acceptable inspection protocols well in advance of the event so it is conducted in a scientifically appropriate manner that is least intrusive and inconvenient to health systems.  Since the mid-2000s, we have monitored and reported legal precedent for new discovery and trial issues associated with the EMR, audit trail, and AI. Very few can boast a greater legal acumen than our group. As the EMR becomes more of a tool that augments medicine, rather than an information repository with the integration of AI, new legal thought and litigation strategies need to be considered in cases, particularly where a medical error may be due to the EMR or AI. We can assist with the strategic decision of whether and how to include EMR and AI vendors in your cases, and we can outline the legal benefits and pitfalls to be considered prior to doing so.  Medical negligence cases are not going to become less complex as AI is utilized within the EMR. To the contrary, they are going to become more complex, with novel factual and legal issues facing your counsel that have never been raised before. Going into these cases with the right guidance and experience is necessary. Please consider Marshall Dennehey’s EMR and Audit Trail Discovery Practice Group in the future when the necessity of specialized legal services are required. It is not a matter of if you will come across a complex EMR or AI issue, it is just a matter of when. Let us help you or your counsel.    Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.