2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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2. Pa. R. Civ. Pro. 1036.1 – Reinstatement of a Party to a NegligentAction – A Judicial Mechanism Created to Reinstate a Party WhoWas Dismissed Upon Filing an Affidavit of Non-InvolvementPremised on False Inaccurate Facts – Reinstatement of ClaimDismissed Upon Affidavit of NoninvolvementEffective March 1, 2009, this newly created rule provides a procedure to reinstate a claimpreviously dismissed by an affidavit of noninvolvement, pursuant to R. 1036. Pursuant to 1036.1,subsequent to the dismissal, any other party to the suit may file a motion for the reinstatement ofthe dismissed party. The motion must set forth facts showing false or inaccurate statements wereincluded in the affidavit of noninvolvement. Any party to the suit may respond to this motion toreinstate.Next, the court will review both the motion and responses to determine if a prima faciecase of involvement of the dismissed party exists. If the court finds there is a prima facie case,then the court shall issue an order allowing any party to: (1) conduct limited discovery specific tothe involvement of the dismissed party and (2) file any affidavits, depositions or otherevidentiary materials that would permit a jury to find that the dismissed party was involved.Also, the court shall schedule an argument prior to the motion being decided. It is important tonote that the argument shall be limited to whether the moving party has presented evidence whenconsidered in a light most favorable to that party would require the issue of the dismissal of theparty to be presented to a jury.3. Rule 10.05(4)(m) - Amendments of the Wisconsin Rules of CivilProcedure – Professional Assistance Program Guidelines – Mandatedand Voluntary – Board of Governors. State Bar AssistanceProgramsEffective July 1, 2010, Rule 10.05(4)(m), this newly created rule establishes a program toassist law offices, attorneys, judges, law students and their families in coping with a myriad ofproblems related to or affecting the practice of law. These problems may include, but are notlimited to, alcoholism, addiction, mental illness, or physical disability. The newly elected boardis established with developing and implementing appropriate policies and procedures to furtherthe public interest in the competence and integrity of the state bar. Pursuant to this rule, allcommunications made by committee or staff members, and volunteers that are made in goodfaith while providing program information are deemed both privileged and confidential.Specifically, confidentiality is applicable except when: (1) the program participant providesexpress consent; (2) necessary to prevent death or substantial bodily harm to the programparticipant or another; (3) necessary to prevent child or elder abuse; (4) the law mandatesreporting; and (5) a condition of monitoring as mandated by the state bar.The Director of the state bar may refer an attorney to participate in the assistanceprogram if: (1) the attorney agrees to enter as an alternative to discipline by the state bar; (2) as acondition to continue to practice or be reinstated to practice law; (3) the attorney has pleadedimpairment or mental incapacity in response to an investigation or complaint; and (4) theattorney has exhibited behavior that is reasonably perceived as a manifestation of an impairmentor incapacitation. See, R. 21.03 (9).140
4. Civil Procedure Case Lawa. Discovery of Expertsi. Barrick v. Holy Spirit Hosp. of the Sisters of ChristianCharityIn Barrick, 5 A.3d 404 (Pa. Super. 2010), the Superior Court of Pennsylvania consideredwhether correspondence between attorneys and experts was beyond the scope of permissiblediscovery.In this issue of first impression, the Court reviewed the Court of Common Pleas decisionthat the correspondence was discoverable. The Court concluded that the situation in Barrick wasnearly identical to that of Pavlak v. Dyer, 59 Pa. D. & C.4 th 353 (Pike Cty. Ct. Com. Pl. 2003).Plaintiff sought to use its examining physician as its expert witness at trial. Defendant thensought discovery of the written correspondence between plaintiff’s counsel and the expert. TheCourt concluded that Pavlak was useful as guidance, but created its own bright-line rule inconcluding that “attorney work-product must yield to the disclosure of the basis of a testifyingexpert’s opinion.” Barrick, at 12. The Court justified this decision with the rationale that partiesneed to know the basis for an expert’s professional conclusions and to what extent counsel’sopinion has swayed the expert’s anticipated testimony. Furthermore, the Court concluded thatbecause of this newly created rule, “in camera inspection[s] would be duplicative and a waste ofjudicial resources.” Id. at 14.Put another way, the discovery of the basis of expert opinion under Rule 4003.5(a)trumped the attorney work-product protection under R. 4003.3.It should be noted that Barrick was the opposite of new Fed. R. 26(b)(3).The Superior Court withdrew its first opinion in Barrick and granted reargument.2010 Pa. Super. LEXIS 3833 (Pa. Super. Nov. 19, 2010). On reargument, the SuperiorCourt departed from the conclusion reached in its withdrawn opinion. It held:In closing, based upon our interpretation of the PennsylvaniaRules of Civil Procedure, drawing upon the plain language ofthe rules and the case law of this jurisdiction, we conclude thatthe trial court committed an error of law in granting Sodexho'smotion to enforce. As our Supreme Court has previouslydetermined, other than the interrogatories described inPa.R.C.P. 4003.5(a)(1), the Rules of Civil Procedure requirethat a party show cause to obtain further discovery from anexpert witness. Cooper, supra at 492. Sodexho in this casefailed to make any such showing. Thus, we hold that Sodexho'ssubpoena seeking documents from Appellants' expert witnesswas beyond the scope of Pa.R.C.P. 4003.5, without firstshowing cause as to why such a discovery request was needed.141
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EMTALA CASES ......................
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Filing an Affidavit of Non-Involvem
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II.PROFESSIONAL LIABILITY - AN OVER
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The Superior Court reversed the tri
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to a third party pursuant to the st
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After approximately five months, De
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learned the day after the surgery t
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conduct to the delay in colon cance
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court admitted the expert’s testi
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(b)(c)other reasonable causes, incl
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corroborated his testimony. The cou
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husband’s estate. Plaintiff alleg
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Other notable federal cases arising
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The Superior Court found that in re
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§ 1303.512(b). The court, however,
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In Neidig v. United States, No. 07-
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Additionally, the Supreme Court not
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were not indicated for her conditio
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surgeon is the same as it would be
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It should be noted that the Superio
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Finally, the court held that the tr
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The Supreme Court of Pennsylvania r
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nurses deviating from applicable st
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certainty, the court reviews expert
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Under Pennsylvania law, the Court n
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testimony, Defendant presented his
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Following Cooper v. Roberts, 286 A.
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Plaintiff developed chronic diarrhe
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where payment is made by Medicaid w
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accomplished. In Valles v. Albert E
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In 1980, the Pennsylvania Superior
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Plaintiff had a routine monitoring
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Plaintiff’s Contract ClaimsThe Co
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is a failure to report changes in a
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unit to assure post-surgical patien
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sliced his wrist and arm with a raz
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licensed professionals for whom the
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(c)Limitations of Corporate Neglige
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Even more recently, our Superior Co
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(a)HMO IssuesIn McClellan v. Health
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affidavit submitted by Defendants o
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treatments while at VA’s faciliti
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[s]ubstantively, we believe that a
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The party claiming the benefit of t
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deprive (him) of civil rights guara
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found that the District Court was w
Page 96 and 97: With respect to fraudulent concealm
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Page 100 and 101: they had not raised them in the cou
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Page 106 and 107: MCARE also changes the manner in wh
Page 108 and 109: whose death, in 2005, was allegedly
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Page 112 and 113: health center or its equivalent or
Page 114 and 115: In Pennsylvania Medical Society, th
Page 116 and 117: to any professional who is alleged
Page 118 and 119: Since the 2005 amendments, there ha
Page 120 and 121: ule, but who intentionally ignores
Page 122 and 123: the original Complaint was delivere
Page 124 and 125: foreclose all challenges against th
Page 126 and 127: number of boxes), which was support
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Page 132 and 133: The Third Circuit affirmed the Dist
Page 134 and 135: claims and cross-claims remain agai
Page 136 and 137: By an Amendatory Order dated March
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Page 144 and 145: E. Preemption of Vaccine Design Def
Page 148 and 149: Barrick, at *34-35.Furthermore, the
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Page 152 and 153: 2006). In this case, Plaintiffs bro
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Page 156 and 157: decision in Muhammad precluded Mr.
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Page 162 and 163: In Capital Care Corp., the Superior
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Page 166 and 167: of reasonable diligence. The standa
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Page 170 and 171: complete bar to recovery. Since a l
Page 172 and 173: On appeal, Plaintiffs claimed that
Page 174 and 175: In Liggon-Redding, 659 F.3d at 265,
Page 176 and 177: elieved of those minimum standards
Page 178 and 179: elevant to the proceedings, the com
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Page 184 and 185: Id.Rejecting revocation and suspens
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2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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