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A hospital cannot be hit with punitive damages simply because it maintains different policies for how it treats patients with insurance versus those without, but a jury just might consider it outrageous if a patient was never even told that she would be operated on by a student-doctor due to her uninsured status, a federal judge has ruled. In a pair of opinions handed down last week in Lee v. Abington Memorial Hospital, Senior U.S. District Judge Clifford Scott Green handed both sides a few significant victories. But plaintiff’s attorney Aaron Freiwald of Kline & Specter may have fared a bit better since he held onto at least a fragment of his punitive damages claim and survived summary judgment against one of the individual doctors. Freiwald’s client, Yon Kyeong Lee, claims she suffered a botched appendectomy and was forced to endure a colostomy and several additional surgeries. At first, Lee’s case seemed to be a run-of-the-mill negligence case. But last year, Freiwald amended the suit to add a claim for punitive damages, saying he had uncovered evidence that the hospital routinely assigns a surgeon-in-training to operate on patients who have no private health insurance. Freiwald argued that if Lee had the financial means to get private insurance, “a fully qualified attending surgeon would have seen her in person even though it was in the middle of the night, and would have actively and directly participated in her surgical procedure.” Instead, he said, “Lee became a practice case for a student surgeon, was not afforded any direct involvement by an attending surgeon at any point before, during or after her surgery.” Freiwald argued that Lee’s treatment was the result of a policy at Abington Memorial “to assign uninsured patients and patients without private health insurance to the unsupervised care of unqualified surgeons.” At first, Freiwald had named only Dr. Valerie Dyke, the fifth-year resident, as a defendant, but the new version of the suit added claims against the attending physician, Robert K. Josloff, for staying at home during the surgery. But the hospital’s lawyers, Donald F. Ladd and Marcy H. Landis of White & Williams, moved to have the claim for punitives dismissed. “This conduct simply is not outrageous,” they wrote. “… There are no facts to demonstrate an intent to harm or reckless disregard for Lee by allowing a fifth-year chief resident to perform surgery without direct supervision when she had done so multiple times previously.” The question, they argued, is whether it “shocks the conscience” or is “outrageous” that a fifth-year surgical resident performed an appendectomy with a staff surgeon available just 10 minutes away. Under Pennsylvania law, they said, punitive damages “are appropriate only to punish and deter extreme behavior and, even in the rare instances in which there is justification, they are subject to strict judicial controls.” When deciding whether conduct is outrageous, they said, “the state of mind of the actor is vital. The act, or failure to act, must be intentional, reckless or malicious.” If the defendant’s mental state rises to no more than the level of gross negligence, they said, the Pennsylvania courts have held that punitives are not justified. And in the medical malpractice arena, they argued, courts require proof of “aggravated” conduct that is “contrary to the patient’s interests” and involves “bad motive or reckless indifference.” But Freiwald, in a reply brief, argued that the hospital conceded all the essential elements of a punitive damages claim by admitting that his client, due to her uninsured status, was operated on by a surgeon who had not yet completed her training and that the responsible attending physician was at home. “The question is not whether the chairman of the department of surgery at Abington [or counsel for defendant hospital] believes that it is appropriate for an attending surgeon to be home asleep while a resident is performing – unsupervised – a major abdominal surgical procedure on a patient,” Freiwald wrote. “The question is whether such conduct is acceptable according to the standard of care and, for purposes of this motion, whether such conduct is outrageous,” Freiwald wrote. The answer to the question, Freiwald said, comes from expert witnesses who have testified that Abington’s botching of Lee’s appendectomy was not only malpractice, but outrageous on the basis of evidence that the hospital routinely assigns residents to operate on patients who have no private health insurance. But Judge Green found that the law was somewhere in between the two arguments. Green found that the “primary contention” in the plaintiff’s case was that Abington’s two-tiered system is “outrageous” because it provides one level of care for insured patients and a different level of care for uninsured patients who do not volunteer to pay out of pocket. While insured patients are cared for by attending physicians and surgeons, Green said it was undisputed that the uninsured patients receive care exclusively from hospital staff. But Green said “there is no legal ground for finding that such a system, per se, subjects the defendant hospital to punitive damages under Pennsylvania law.” The plaintiff’s own expert conceded as much, Green said, by recognizing that under the hospital’s policy, the uninsured patients “are given a choice of whether to volunteer payment for care by an attending member of the surgical staff or to be treated by the ‘chief’s surgical service.’” But Green said he also recognized that the expert faulted the hospital personnel for violating their own policy by failing to fully inform Lee that she was choosing to be treated by a student-doctor. As a result, Green concluded that the issue of punitive damages must go to the jury because “whether the conduct of [the hospital's] personnel was so extreme as to be outrageous under Pennsylvania law is factually in dispute.” But Green ordered Freiwald to file a newly amended complaint that “precisely set forth the facts which … give rise to punitive damages.” In a second opinion, Green refused to dismiss a battery claim against Dyke but dismissed the same claim as against Josloff. “The general rule in Pennsylvania is that only the doctor performing the surgery is responsible for obtaining informed consent,” Green wrote. “Since Josloff merely reviewed the diagnoses with Dyke, and since Josloff did not take any positive action to avoid or negate Lee’s informed consent,” he cannot be held liable for battery, Green ruled.

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