ORAL ARGUMENTS

Two medical malpractice lawsuits that have received attention in lower courts are on the schedule to split a two-day argument session before the state Supreme Court starting today in Harrisburg.

Likely to be the most-watched matter in the session is the justices’ consideration of a case over whether medical malpractice defendants may rely on an “error in judgment” defense at trial.

The issue has yet to be tested before the state’s highest court and the state Superior Court, in ruling defendants may not rely on such a defense, decided the case by retroactively applying its own jurisprudence on which the justices previously declined review.

The other medical malpractice case is a direct appeal following a Commonwealth Court judge’s grant of summary in favor of the Medical Care Availability and Reduction of Error (MCARE) Act, ruling the fund does not have to pay twice its $1 million policy limit if the negligence at issue happens to affect a set of twins.

But another case, according to attorneys involved, has drawn attention from around the state to Fulton County, where a man charged with burglary and kidnapping posted bail and then killed his victim, who happened to also be the state’s key witness in the matter of Commonwealth v. Hann. The issue in the case is whether the state was prejudiced to the extent that it can claim forfeiture of the $100,000 in bail.

But here’s the wrinkle: The man charged with the crimes also took his own life, leaving the question before the high court as to whether the bail bondsman can be left on the hook for the money.

The argument session is also slated to include two workers’ compensation cases, one of which promises to effect an undocumented alien’s right to receive benefits, a dispute over whether the Shares Tax violates the Uniformity Clause, and a case over whether a guaranty signed under seal was an “instrument” or a “contract,” affecting the statute of limitations for litigation.

The justices will also decide if a young girl’s out-of-court statements should have been admitted in her father’s rape trial under the Tender Years Act.

Retroactive Standard of Care

In Passarello v. Grumbine,the Superior Court granted a new trial to the parents and estate of a two-month-old baby who died while in the care of Dr. Rowena T. Grumbine and Blair Medical Associates.

The medical defendants appealed and the high court handed down two orders back in May, separately granting the petitions for allowance of appeal of both Grumbine and Blair Medical Associates.

The intermediate appellate court retroactively applied its prior decision in Pringle v. Rapaport, which banned the “error in judgment” defense in medical malpractice cases, in granting the new trial.

“In this instance, we find no impediment to retroactive application of the holding in Pringle,” Judge John T. Bender wrote for the Passarello court. “In that case, this court, sitting en banc, explored the history of the error in judgment rule and precluded its continued use in Pennsylvania on the basis of its inconsistency with the ‘standard of care’ analysis on which liability in professional negligence cases depends.”

The court said its ruling would apply retroactively only to those cases in which the final judgment of the verdict had not been entered before the 2009 filing date of Pringle, which was the case in Passarello. The number of cases affected was further reduced, Bender said, by the fact that appellants would have needed to preserve their challenge to the error in judgment rule through an objection and request for relief from the trial judge as well as appropriately briefed the issue on appeal.

In Passarello, like in Pringle, the trial judge gave a jury instruction beyond the standard-of-care instruction and also discussed the error in judgment rule.

“‘Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it’s proven that an error of judgment was the result of negligence,’” Bender said, quoting the Blair County trial judge’s jury instruction in Passarello.

A defense verdict was handed up April 29, 2009, before the Pringle decision came down in August. But the judgment was not entered until September 2010, according to the opinion.

However, ruling 5-2, the intermediate appellate court granted plaintiffs Stephen and Nicole Passarello a new trial based on this instruction and defense counsel’s arguments, which Bender said “exploited” the trial judge’s jury charge.

Bender said that charge introduced Grumbine’s state of mind as an element for the jury’s consideration. Such a charge attenuated the objective standard of care imposed by Pennsylvania law “and obfuscated the manner in which the jury might properly weigh the evidence,” he said.

The plaintiffs had sued Grumbine and Blair Medical after their son died of diffuse acute viral myocarditis, a viral infection of the heart muscle.

MCARE Suit

Also on the medical malpractice docket is Kinney-Lindstrom v. Medical Care Availability and Reduction of Error Fund, in which the Commonwealth Court has already ruled the fund does not have to pay out its $1 million statutory policy limit twice if a single mistake by a doctor happens to affect twins.

The justices granted allocatur after the Commonwealth Court ruled for the second time on a summary judgment motion in the case. The first time, in Kinney-Lindstrom I, the court denied parent Lisa Kinney-Lindstrom’s motion for summary judgment in her quest to have the MCARE Fund pay out a second $1 million to supplement her settlement with the fund and the negligent doctor over his failure to diagnose an infection she ultimately passed on to her twins in utero.

The court ruled in Kinney-Lindstrom I that Dr. S.’s failure to diagnose chorioamnionitis was a single occurrence of malpractice. It said the MCARE Fund paid out its statutory liability limit of $1 million and did not have to pay out a second $1 million even if the one occurrence affected two babies.

In Kinney-Lindstrom II, the justices limited today’s argument to one issue, leaving the remaining issues to be decided on the briefs. That issue was whether the Commonwealth Court abused its discretion in finding in favor of the MCARE Fund that Dr. S.’s negligence constituted only one occurrence of medical malpractice, rather than two.

Through a settlement between Kinney-Lindstrom and the doctor and MCARE, MCARE paid out delay damages and post-judgment interest on the $1 million it paid through the settlement.

Kinney-Lindstrom filed a medical malpractice claim against Dr. S. in May 2003 for his alleged failure to diagnose her as suffering from a chorioamnionitis infection, which was ultimately passed on to her unborn twins, according to the opinion.

MCARE defended Dr. S. in the action and, despite some attempts at settlement discussions, the case went to trial. A federal jury awarded $6.25 million for Kinney-Lindstrom’s son’s injuries and $6.9 million for her daughter’s injuries, according to the opinion.

Both sides filed post-trial motions, but in August 2006, all parties entered into a settlement agreement. It provided that the MCARE Fund would make a single $1 million payment to Kinney-Lindstrom for the benefit of both children, as well as an amount for delay damages and post-judgment interest. Dr. S. would withdraw his post-trial motions and assign to Kinney-Lindstrom his right to litigate whether MCARE is required to pay a second $1 million for two occurrences and delay damages and post-judgment interest, according to the opinion.

Workers’ Comp

On Wednesday, the court is slated to hear a case over whether an employer holds the burden of proof in a workers’ compensation case where the claimant has failed to establish documented status.

In Cruz v. Workers’ Compensation Appeal Board, according to the employer’s attorney, the claimant asserted the Fifth Amendment in refusing to answer questions about his status as an undocumented worker before a workers’ compensation judge.

According to Ted Carpenter, who represents the employer, the workers’ compensation judge drew an adverse inference in finding that worker David Cruz was an undocumented alien. However, after the Workers’ Compensation Appeal Board heard the matter, the Commonwealth Court eventually ruled the judge erred in relying solely on that adverse inference in finding Cruz was an undocumented alien.

In the other case, according to an attorney involved, the high court will hear arguments over whether East Goshen Township (the employer) had the right to unilaterally stop paying benefits because it realized, under the law, it was never required to start paying them again.

In Cozzone v. Workers’ Compensation Appeal Board, attorney Quintes D. Taglioli said, the employer received no order from a court before it stopped paying the benefits of Andrew Cozzone (now deceased).

Taglioli said a “light bulb went on” and the employer simply stopped paying, reasoning that it has no requirement to reinstate benefits after initially paying a first round of benefits until Cozzone returned to work.

Retention of Bail

After defendant Ricky Lynn Hann killed himself (along with the state’s key witness in Hann’s prosecution) while out on bail, one might think the case of Hann had drawn to a tragic close in 2011.

But according to the attorneys in the case and the allocatur grant, the case has reached the high court on the issue of whether the bail bondsman, Paul Weachter, can be liable for the $100,000 in bail money he fronted to Hann.

The Fulton County District Attorney’s Office is arguing that such is the case, drawing attention from a host of bail bondsmen, who filed an amicus brief under the name American Bail Coalition.

The issues to be argued today, according to the allocatur grant, include whether the murder of the state’s key witness by Hann, while Hann was on bail for burglarizing and kidnapping her, is the kind of prejudice to support the forfeiture of the full amount of the bail. Secondly, the court will consider if the state needs to prove a financial loss to establish that type of prejudice.

Tender Years

The last case the justices are set to hear, closing out Wednesday’s arguments, deals with a young girl’s out-of-court statements as they related to her father’s rape trial. At the crux of the appeal is whether the statements were properly admitted under the Tender Years Act when the girl had previously been determined incompetent to testify.

A split state Superior Court panel had granted a new trial to Jay Lee Walter Sr., who had been facing an effective life sentence following a Franklin County jury trial. The state filed for an appeal and the justices granted review over the summer. All three of the judges on the Superior Court panel wrote separate memorandum opinions.

The case involves the interplay between provisions of the Tender Years Act, which allow for the admission of out-of-court statements of a child witness as hearsay evidence (42 Pa.C.S. Section 5985.1(a)(2)(ii)), and Pennsylvania Rule of Evidence 601(b), which requires a child witness be disqualified if he or she is too immature. The central question in Commonwealth v. Walter is this: Is disqualification under 601(b) an ad hoc rendering of the out-of-court Tender Years statements as inadmissible?

Other Cases of Interest

Also of interest on the justices’ docket this week is a case dealing with a guaranty, which was signed under seal, and how the document should be construed in terms of the statute of limitations once litigation ensued. The two choices are an “instrument under seal,” with the applicable statute of limitations being 20 years, and a “contract under seal, for which a lawsuit would be governed by a four-year statute of limitations.”

In another case, the justices will grapple with the question of whether the Shares Tax violates the Uniformity Clause and, if so, which remedy is proper. In the case of Lebanon Valley Farmers Bank v. Commonwealth, the Commonwealth Court decided that the averaging methodology used in calculating the taxable amount of shares in the merger year when a Pennsylvania bank merges with an out-of-state bank violated the Uniformity Clause.

The court remains shorthanded with six justices, and divided along political party lines, as Justice Joan Orie Melvin awaits trial on charges she used judicial staff to do political work.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter@BPresentTLI. •