2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

of limitations had run on the Plaintiff’s state law claims, the Court determined that the factorsweighed in favor of retaining supplementary jurisdiction.In Carrozza v. Greenbaum, 866 A.2d 369 (Pa. Super. Ct. 2004), affirmed, 916 A.2d 553(Pa. 2007), a case in which Plaintiff alleged the Defendants failed to timely diagnose her breastcancer, the Superior Court held that testimony offered by Plaintiff’s experts regarding bothstandard of care and causation was sufficient to meet the burden of proof and that there weresufficient facts for the jury to have found in favor of the Plaintiff. Consequently, the trial courthad not erred in denying Defendants’ motion for judgment notwithstanding the verdict.In reaching its holding, the court noted that Plaintiff was not required to establish that theDefendant’s negligence was the actual “but for” cause of her injuries, but rather, this was a casein which the relaxed “increased risk of harm” standard applied. The court concluded that whenviewed in its entirety the expert testimony in this case was sufficient to sustain Plaintiff’s burdenof proof and that it was not a clear case for judgment notwithstanding the verdict. The SuperiorCourt affirmed the trial court’s order denying Defendants’ motion for same. The PennsylvaniaSupreme Court did grant appeal in the case on an insurance/joint and several liability issue, at882 A.2d 1000 (Pa. 2005); however, the Court had denied further appeal on the “increased riskof harm” standard. Resolution of the insurance/joint and several liability issue is found at 916A.2d 553 (Pa. 2007). 1In Winschel v. Jain, 925 A.2d 782 (Pa. Super. Ct. 2007), appeal denied, Winschel v. Jain,596 Pa. 709 (Pa. 2008), the Superior Court granted a new trial after finding that a defense verdictinvolving a physician’s alleged failure to diagnose a complete obstruction of Plaintiff’sdecedent’s left coronary artery was against the weight of the evidence and that Plaintiff hadsucceeded in establishing the causation element under the increased risk of harm standard.In this case, Plaintiff (Decedent’s wife) filed suit against Defendant physician, allegingthat Defendant was negligent for failing to diagnose a complete obstruction in Decedent’s leftcoronary artery, causing him to suffer an acute myocardial infarction and die. To support thistheory, Plaintiff offered the testimony of two board-certified cardiologists, both of whomtestified that Defendant fell below the standard of care by failing to recommended catheterizationof Plaintiff’s decedent’s left coronary artery three months prior to his death. In response to this1 More specifically, in Carrozza, the Supreme Court confronted the question of:Where two defendants are found jointly and severally liable, one defendanthas sufficient insurance coverage to satisfy the entire judgment, and theother defendant's insurer is insolvent, may a court direct the judgmentcreditor to seek satisfaction exclusively from the solvent insurer, thuseffectively discharging the Pennsylvania Property & Casualty InsuranceGuaranty Association of all liability?The Court answered the question with a “qualified “No.”” Id., 916 A.2d at 557. It found, “generally thatPPCIGA, when it has assumed the liabilities of an insolvent insurer pursuant to § 1803 of the Act, stands inthe shoes of that insurer for purposes of joint and several liability. As in any other joint and severaljudgment situation, the judgment creditor may seek satisfaction of its judgment from PPCIGA to the extentof the entire judgment or the statutory cap on PPCIGA's liability, whichever is lower.” Id. However, in lightof the Fair Share Act, discussed below, joint and several liability in the Commonwealth has dramaticallychanged and so Carrozza’s holding must be put in that context.47