An undisputed clerical error will send a medical malpractice defense verdict back to the trial court, the Superior Court has ruled.
On Dec. 31, 2013, a unanimous three-judge panel ruled in McFarland v. Clarion Hospital that a clerk’s filing error constituted negligence on behalf of the two doctors employing her, and therefore the jury should not have rendered a defense verdict. The decision reverses Clarion County Court of Common Pleas President Judge James G. Arner’s ruling to uphold the verdict.
Writing the memorandum opinion, Judge Anne E. Lazarus said the admitted clerical error called for a finding of negligence against the two obstetricians in the case.
“The jury’s verdict of no negligence was manifestly erroneous in light of the undisputed evidence of the clerk’s malfeasance,” she said. “Because doctors [John] Myers and [Bart] Matson admitted to the fact that their office clerk misfiled [plaintiff Kaine A. McFarland]‘s ultrasound report and that this malfeasance constituted a breach in the standard of care for their medical office, the jury’s verdict of no negligence bears no rational relationship to the evidence.”
According to Lazarus, when the infant’s mother was in her 37th week of pregnancy, obstetricians Myers and Matson ordered a diagnostic prenatal ultrasound, which was later interpreted by Dr. Eric J. Fielding as showing a large cyst or mass on the fetus’ right kidney.
Although it was disputed how Fielding attempted to contact the obstetricians, his report was eventually sent to the obstetricians via the hospital’s mailing system. While the report was en route, the mother went into labor and delivered the baby. The report arrived four days later, but was misfiled by an office staff member and placed in a pile of papers relating to disability claims, Lazarus said.
Some 10 days later, the baby was admitted suffering from severe lethargy and vomiting, and another ultrasound was taken, which revealed a cyst on the baby’s right kidney. McFarland was life-flighted to Children’s Hospital of Pittsburgh, where he was diagnosed with an obstructed urethra and treated with an emergency surgery to remove bladder pressure.
The McFarlands filed a medical malpractice suit alleging negligence and vicarious liability against Fielding, Clarion Hospital and the obstetricians and their business. The plaintiffs specifically alleged that Myers and Matson were responsible for establishing and enforcing timely communication of radiology reports.
Following a seven-day trial, the jury found that the defendants did not breach their standard of care and rendered a defense verdict.
The plaintiffs filed post-trial motions, arguing, among other things, that they should have been granted summary judgment on negligence and vicarious liability due to the misfiling error. The motions, however, were denied.
On appeal to the Superior Court, the McFarlands contended that Myers and Matson’s admission that their clerk was negligent mandated that the verdict be set aside, and Lazarus agreed.
She noted that Myers and Matson testified they were responsible for their office staff, and on cross-examination admitted that, due to the clerical mistake, the baby’s fetal ultrasound test results were misfiled in their office. According to Lazarus, the doctors further testified that because of the clerical error, the practice breached its standard of care by not reviewing the ultrasound in a timely manner.
Lazarus noted that there was no expert testimony regarding whether the office was negligent due to the misfiling, but said that “such testimony was not necessary because the issue itself was so simple and the lack of care so obvious that expert testimony was unnecessary for the jury’s deliberation on the issue.”
Lazarus further cited the court’s 2001 decision in Cagemi v. Cone, in which it found that expert testimony was not required to establish that negligence factored into a physician failing to receive radiological reports. She also cited the court’s 1999 decision in Matthews v. ClarionHospital, in which the court determined that expert testimony is not required when lack of skill or care is obvious to nonprofessionals.
Testimony of a defense expert indicating that the doctors did not breach their standard of care by failing to track down the ultrasound themselves after the birth was unconvincing, Lazarus said, as the testimony dealt with causation and did not address the standard of care regarding the office procedures.
The obstetricians, Lazarus said in a footnote, testified that they did not feel personally responsible; however, there was no question that the obstetricians were legally responsible for the clerk’s actions, Lazarus said.
The trial court, she said, even properly instructed the jury that if they found negligence on behalf of the clerk, they needed to also find the employers negligent.
“In fact, the trial court acknowledges in its Pa.R.A.P. 1925(a) opinion that defendants Myers and Matson’s ‘admissions [that the clerk misfiled Dr. Fielding's ultrasound report and that she should not have misfiled it] is conclusive and the plaintiffs did not need to present any further evidence to prove the facts,’” she said.
Over the plaintiff’s contention that all the defendants should once again face the jury, Lazarus remanded the case against only the obstetricians and their business for a new trial on causation, liability and damages.
Plaintiffs attorney Douglas L. Price, of Harry S. Cohen & Associates in Pittsburgh, and Terry C. Cavanaugh of Marshall Dennehey Warner Coleman & Goggin, who represented the obstetricians, did not return calls for comment.
(Copies of the 16-page opinion in McFarland v. Clarion Hospital, PICS No. 14-0050, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •