Plaintiff, Dunlap, was injured when a tree fell on her as she was leaving the Ridley Park Swim Club. The tree was actually located on an adjacent property owned by Harper Associates. Dunlap sued Ridley Park and Harper. Prior to trial, Dunlap and Harper submitted their case to binding arbitration, and after the award of $350,000, they entered into a pro rata joint tortfeasor release.

At trial, Harper did not participate. The trial court ruled that Harper would not appear on the verdict sheet, as Ridley Park would be unable to prove a prima facie case of negligence against Harper. The jury returned a verdict against Ridley Park in the amount of $750,000.

The Pennsylvania Superior Court in Dunlap v. Ridley Park Swim Club, 2015 Pa. Super. Unpub. LEXIS 3207, found that Ridley Park had made a prima facie showing that Harper was negligent, and Harper should have been on the jury sheet. This error obviously prejudiced Ridley Park because if the jury found Harper bore some responsibility, the damage award would have been reduced in accordance with the pro rata joint tortfeasor release. The case was remanded for a new trial.

Plaintiff’s Med Mal Case is Partly Barred by the Statute of Repose

Judge Cox in Lawrence County, Pennsylvania addressed the issue of the MCARE statute of repose in Tinstman v. Bassaly (30006 of 10 CA). In 1993, Dr. Bassaly performed on Tinstman a bilateral salpingo-oophorectomy, the operative report for which stated the cervix, uterus, fallopian tubes, and ovaries were removed. The pathology report, however, did not identify fallopian tubes, and nothing was ever done to reconcile the two reports. She did see Dr. Bassaly again for an exam in 2005.

In 2009, plaintiff began complaining of gastro-intestinal distress, as well as abdominal pain originating in her groin. A CT scan revealed a mass consistent with left ovarian carcinoma. Plaintiff then filed a medical malpractice action against Bassaly, who filed a motion for summary judgment asserting that the MCARE Act’s seven year statute of repose barred recovery, since the alleged tort occurred in 1993.

Plaintiff argued that the statute of repose did not apply since the surgery was performed before the act became effective in 2002, and if it were applicable, it should have been tolled until she discovered he had failed to remove her fallopian tubes.

Judge Cox found that the discovery rule applied to statutes of limitation, not the statute of repose. As such, the statute of repose barred plaintiff’s claims regarding the 1993 surgery. However, the statute of repose did not bar plaintiff’s claims that Bassaly failed to advise her of the risks related to the fallopian tissue at the 2005 exam.

Supreme Court Addresses Agency Liability of Hospital

In Green v. Pa. Hospital, 2015 Pa. LEXIS 2004, the Pennsylvania Supreme Court addressed the issue of hospital agency and vicarious liability.

Plaintiff decedent died when complications arose from a blocked tracheotomy tube. Decedent’s estate commenced a negligence action against the hospital and several individual defendants. However, plaintiff did not individually name the ENT physician that attempted to take corrective measures from the blocked tube during the emergency treatment. At trial, the court granted a nonsuit as to all defendants. With respect to the ENT, the court specifically determined that plaintiff failed to offer evidence that a reasonably prudent person in decedent’s position would have been justified in the belief that the care was rendered by the hospital or its agents.

The Superior Court affirmed and found that plaintiff had failed to offer any evidence as to the extent of the ENT’s duties or responsibilities at Pennsylvania Hospital.

The Supreme Court reversed and held that when a hospital patient experiences an acute medical emergency (as in this case), it is more than reasonable for the patient, who is in the throes of medical distress, to believe that such emergency is being rendered by the hospital or its agents. The question of whether the ENT’s care was rendered by her as an agent of the hospital should have proceeded to the jury.

Summary Judgment Upheld in Slip and Fall Case

Plaintiff went to eat at a Red Robin restaurant, and on her way into the restaurant stepped in a puddle where the parking lot met the sidewalk curb. Approximately one hour later, as she was leaving the restaurant, plaintiff stepped in the same puddle, slipped, fell, and sustained injuries. Plaintiff commenced suit alleging Red Robin was negligent for failing to fix the hazardous the condition. The trial court granted summary judgment in favor of Red Robin.

On appeal to the Pennsylvania Superior Court, plaintiff argues that genuine issues of material fact existed regarding the size and depth of the puddle, as well as whether the fall was caused by stepping on a rock in the puddle, or by losing her balance after walking along a narrow curb.

In Ford v. Red Robin, 2015 Pa. Super. Unpub. LEXIS 3191, the Superior Court found that the record supported the trial court’s analysis. The trial court acted within its discretion when it determined that a small rock in a shallow puddle in a parking lot constituted a trivial defect. Moreover, plaintiff failed to adduce evidence that the puddle constituted an unreasonable risk of harm, and that Red Robin had actual or constructive notice of the allegedly defective condition.

Unlicensed and Unregistered Physician Cannot Provide Certificate of Merit

In Nowakowski v. Drexel Family Medicine, 2015 Phila. Ct. Com. Pl. LEXIS 230, Judge Rau entered a judgment of non pros against plaintiff for failure to file a Certificate of Merit.

Plaintiff, a pro se litigant, commenced a medical malpractice case against the physician who prescribed his blood pressure medication. Plaintiff filed a Certificate of Merit drafted by Louis C. Marotta, M.D. Defendant moved to strike asserting that Dr. Marotta is not registered, and does not possess an unrestricted physician’s license to practice medicine. Plaintiff argued that the MCARE Act permitted the court to waive the requirement of Rule 1042.3(a) because of Dr. Marotta’s “unique experience.”

Judge Rau found that plaintiff improperly attempted to satisfy the Certificate of Merit requirements with a written statement from an unlicensed and unregistered medical expert in violation of the rules of civil procedure and statutory requirements.

Superior Court Affirms Striking of Discontinuance and Holding of Trial Without Plaintiff

The underlying case involved alleged property damage. Four days before trial was scheduled to commence, plaintiff filed a praecipe to discontinue per Rule 229. That same day, defendant filed a motion to strike off the discontinuance. The trial court granted defendant’s motion and proceeded with the trial on the merits. Plaintiff did not appear, and the court found in favor of defendant.

On appeal to the Superior Court in Becker v. M.S. Reilly, 2015 Pa. Super. 171, the court reiterated that the trial judge must consider all facts and weigh equities. Defendant arrived prepared to present a full defense, including experts. In view of plaintiff’s lack of diligence, the eleventh hour discontinuance, and defendant’s preparedness, the trial court chose to proceed with trial. This was not an abuse of discretion, especially since defendant could have been subject to the inconvenience and expense of repetitive effort in defending a subsequent lawsuit.