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Jeffrey A. Krawitz

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Endo Pharmaceutical’s recent decision to halt sales of Opana ER (oxymorphone hydrochloride) quickly followed the U.S. Food and Drug Administration’s (FDA) request that it remove the abuse-linked opioid pain medication from the market. This is the first time the agency sought to remove a currently marketed opioid pain medication from sale due to the public health crisis of opioid abuse.

In 2015, more than 33,000 people died from opioid overdoses, according to the Centers for Disease Control. Almost half of the deaths involved a prescription medication.

Continue Reading Sales of Opioid Pain Medication Halted After FDA Request

The Supreme Court of Florida held that the state’s statutory caps on personal injury noneconomic damages in medical negligence actions violate the Equal Protection Clause of the Florida Constitution. The statute, section 766.118, set noneconomic damages caps of $500,000 per claimant in personal injury or wrongful death actions arising from medical negligence. If the negligence resulted in a permanent vegetative state or death, noneconomic damages were capped at $1 million. In cases not involving death or permanent vegetative state, the patient injured by medical negligence could be awarded up to $1 million, if the trial court determined that a manifest injustice would occur unless increased noneconomic damages were awarded, based on the special circumstances of the case, and a finding that the noneconomic harm sustained by the injured patient was particularly severe.

In striking down the damages caps, the Florida Supreme Court affirmed the decision of the Fourth District Court of Appeals in North Broward Hospital District v. Kalitan. The Broward County lawsuit was filed after dental assistant Susan Kalitan underwent carpal-tunnel syndrome surgery and suffered a perforated esophagus during the anesthesia process. A jury awarded $4 million in non-economic damages. The amount of the award was reduced by approximately $2 million based on the damages caps in the statute.

The 4th District Court of Appeals ruled that the damage caps were unconstitutional, noting the Supreme Court’s 2014 decision in Estate of McCall v. United States, finding that the caps in section 766.118 are unconstitutional in wrongful-death malpractice cases. The McCall Court found that the statute “arbitrarily diminished noneconomic damage awards based on the number of survivors and lacked a rational relationship to addressing the medical malpractice crisis.”

Based on the plurality opinion in McCall finding that there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary application of the statutory cap in wrongful death cases, the Court reached the same conclusion with regard to the application of caps in medical negligence cases. The Court found that the statutory caps in section 766.118 “unreasonably and arbitrarily limit recovery of those most grievously injured by medical negligence.”

The Court concluded that “because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis.”

Therefore, the Court held that the caps on personal injury noneconomic damages provided in section 766.118 violate the Equal Protection Clause of the Florida Constitution.

The four-member majority included Chief Justice Jorge Labarga and Justices Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince.

Justice Ricky Polston dissented, joined by Justices Charles T. Canady and C. Alan Lawson, arguing that “It is the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida statutes should be amended accordingly.’’

While some states continue to impose damages caps, Pennsylvania does not impose caps on damages in personal injury cases unless the case is brought against a Commonwealth agency. In fact, damages caps are otherwise unconstitutional under the Constitution of the Commonwealth of Pennsylvania.

Access to a nurse’s personnel file became a key issue in a recent PA medical malpractice wrongful death and survival action. In Snyder v. DeCesare, the Court of Common Pleas of Lackawanna County considered whether plaintiffs were entitled to disclosure of the personnel file of defendant Heather Shingler, RN. Plaintiffs alleged that their unborn child died in utero due to negligent fetal monitoring by the nurse, who was subsequently terminated from her employment with defendant Moses Taylor Hospital.

Plaintiffs sought a court order to compel production of the nurse’s personnel file, alleging a nexus between her termination of employment and her alleged negligent fetal monitoring. Defendants claimed there was no connection between the two events. Also, Nurse Shingler denied that her termination was related to the facts alleged in this case.

Continue Reading Hospital Must Disclose Fired Nurse’s Personnel File in PA Medical Malpractice Case

On March 10, 2017, the Accreditation Council for Graduate Medical Education (ACGME) announced that first-year doctors will be allowed to work 24-hour shifts in hospitals starting July 1, 2017. The cap that has limited shifts to 16 consecutive hours of patient care since 2011 will be lifted. The 80-hours-per-week cap remains in place.

Balancing the logistics of physician training with the safety and needs of patients has been the subject of controversy and debate for decades. According to a recent article in the New England Journal of Medicine, the debate centers on the concern that longer hours mean less sleep and sleep-deprived residents might make errors. However, that is countered by other concerns about shorter work hours resulting in more patient hand-offs that could affect patient care.

Continue Reading Residents’ Return to 24-Hour Shifts Rekindles Controversy Over Patient Care

The Pennsylvania Supreme Court will hear an appeal from the dismissal of a wrongful death lawsuit brought by the widow of Derek Valentino, a triathlete who drowned in a 2010 event organized by Philadelphia Triathlete LLC. The Court will determine whether the wrongful death claims brought by Mr. Valentino’s widow against Philadelphia Triathlete are barred by the liability waiver signed by him.

As part of the registration process for the triathlon, Mr. Valentino paid a fee and electronically executed the liability waiver assuming all risks of participating in the event. The swimming portion of the competition occurred in the Schuylkill River. Mr. Valentino entered the river on the morning of the event; his body was discovered in the river the following day.

In her wrongful death suit, Mr. Valentino’s widow claimed that Philadelphia Triathlete was grossly negligent and reckless. She maintained that the event organizers “failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train employees.”

Continue Reading Pennsylvania Justices to Review Waiver of Liability in Triathlete Wrongful Death Case

A Pennsylvania judge recently entered a $41.6 million verdict against the federal government after an obstetrician employed by a federally-funded health clinic negligently used forceps to deliver a baby. The baby suffered severe permanent brain damage as a result.

The lawsuit claimed that the obstetrician applied excessive force and traction and misapplied the forceps on the baby’s skull while performing a mid-forceps delivery, causing catastrophic neurological injury to the baby. One expert testified at trial that mid-level forceps deliveries are indicated only in severe, life-threatening emergencies. Another noted that the use of forceps caused multiple skull fractures, bleeding in the brain and destruction to the cerebellum and brain stem.

Continue Reading Federal Government Must Pay $41.6M for Negligent Forceps Delivery

In a Common Pleas Court decision, the Honorable Terrence R. Nealon set forth a detailed discussion concerning what materials are discoverable in a medical malpractice action under the Peer Review Protection Act (“PRPA”). 63 P.S. §§425.1 – 425.4.

In Vaccaro v. Scranton Quincy Hospital Company, LLC, plaintiffs allege obstetrical and hospital negligence leading to a minor plaintiff suffering an acute hypoxic ischemic brain injury, resulting in catastrophic injury and disability. The case involves an alleged failure to promptly diagnose and treat a placental abruption, and asserts that objective signs indicating a need for emergency cesarean section were ignored, leading to the alleged brain injury.

Continue Reading PA Courts Discuss Documents Shielded by Peer Review Protection Act

The Accreditation Council for Graduate Medical Education (ACGME) announced on March 10 that first-year doctors will be allowed to work 24-hour shifts in hospitals starting July 1. The cap currently limiting physicians to 16 consecutive hours of patient care will now be lifted. The new standards will allow four hours to transition patients from one doctor to the next, so first-year residents could work as long as 28 straight hours, the same as more senior medical residents.

Continue Reading First-Year Doctors to Begin Working 24-Hour Shifts

According to an article in Outpatient Surgery, every day, operating room (OR) teams nationwide leave almost a dozen surgical sponges inside their patients. To improve patient safety, Stryker implemented its “SurgiCount Safety-Sponge System” to keep track of surgical sponges. Reducing or eliminating the number of surgical sponges left behind reduces the risk of infection and permanent injury, the need for additional surgery, and even patient fatalities. Healthcare providers are hopeful to realize cost savings arising from legal expenses, malpractice settlements and awards, and non-reimbursable patient care.

Continue Reading Manufacturer Guarantees Surgical Sponge-Scanning System