Monthly Archives: May 2017

James P. Goslee, Medical Malpractice

Amending a Civil Complaint in Pennsylvania After the Statute of Limitations? Beware of the “New Theory of Liability” Myth

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For trial lawyers, drafting and filing a Civil Action Complaint is an obvious and important step in litigation. The Complaint is the document that literally starts a lawsuit. But it is more than that. Much more. Although it is filed at the very beginning of a case, the Complaint, and specifically the allegations and causes of action set out in the Complaint, is the foundational document that controls the scope of the litigation and the availability of remedies. So you better get it right.

A plaintiff can only purse the specific claims (causes of action) against a defendant that are “pled” (i.e “alleged”) in the Complaint. If you don’t plead a cause of action, you cannot pursue it and you cannot recover for it. So needless to say, it is important to understand what causes of action you have before filing a Complaint.

Unfortunately, what constitutes a “cause of action” is not always clear and a number of sloppy Superior Court opinions in recent years have made it even more challenging.

“Causes of Action”

But lets start with the basics. What is a cause of action and why does it matter? Say, for example, you undergo surgery and things go badly. Sadly, you are permanently injured. Assume also that you believe your surgeon did two things wrong that caused your injury. First, he made a mistake during surgery and that mistake contributed to your injury. Second, the surgery he performed was different from the surgery you agreed on. In this scenario, you have at least two different causes of action. One cause of action is medical negligence (the doctor made a mistake). The second cause of action is one for lack of informed consent (the doctor did not have permission to perform the surgery). In this scenario, you need to include both causes of action in your Complaint. If you forget to plead one of the causes of action and the statute of limitations expires, you are out of luck.

“The Myth”

But in recent years, lawyers and courts have blurred the line between a cause of action (which needs to be pled), and a theory of liability, which does not. What do I mean? Well lets go back to our previous example. Say you file a Complaint after your surgery alleging both medical negligence and lack of informed consent. Assume further that your claim for medical negligence is that the doctor accidentally cut a specific nerve in your knee during surgery leaving you with limited function in your leg. When you file your Complaint you include an allegation that the doctor accidentally cut nerve A. Turns out though, that the doctor did not accidentally cut nerve A. He used the wrong medical equipment which led to your nerve injury. In either case nerve A is injured and you still can’t use your leg. If you wanted to amend your Complaint after the statute of limitations, under Pennsylvania law you absolutely should be permitted to do so. Why? Because you are not alleging a new cause of action (your claim is still that the surgeon committed medical negligence that caused nerve damage), you are only revising your theory of liability (wrong equipment instead of accidentally cutting a nerve).

Over the years, both trial courts and even the Superior Court have begun to blur the distinction between a “cause of action” and a “theory of liability.” The result is that courts have disallowed amendments after the statute of limitations, even when those amendments do not change the cause of action, but merely seek to alter or expound upon the theory liability. For instance, the Superior Courts decision in Reynolds v. Thomas Jefferson Hospital flat out ignores the distinction between a cause of action and a theory of liability. That decision is wrong, but still has not been corrected.
The upshot is that it is now common practice for defense attorneys to object to motions to amend a complaint, claiming that a plaintiff should not be permitted to allege a “new theory of liability” after the running of the statute of limitations. This is completely wrong. It is a modern legal myth in desperate need of correction.

So lets work on that correction!

The “Real” Law

The Pennsylvania Supreme Court has long held that the “right to amend should be liberally granted at any stage of the proceeding  unless there is an error of law or resulting prejudice to an adverse party.” Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996). The reason for freely allowing amendments is to “secure a determination of the case on the merits whenever possible, and not enforce technical rules of pleading.” In re Francis Edward McGillick Foundation, 594 A.2d 322, 329 (Pa. Super. 1991), aff’d in part, rev’d in part on other grounds, 642 A.2d 467 (Pa. 1994).

Not only should amendments be liberally permitted, but trial courts have broad discretion to allow amendments that include more specific factual pleadings. See, e.g., Pike Cnty. Hotels Corp. v. Keifer, 396 A.2d 677, 681 (Pa. Super. 1978). The Pennsylvania Superior Court has observed that “the lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise detail.” Id. at 681.

Contrary to the defense counsel “new theory of liability” myth, it is blackletter law that a Complaint does not limit plaintiff to a specific theory of liability. Indeed, as explained by the Pennsylvania Supreme Court in Kusis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa. 1974):

The notion that a complaint weds a plaintiff to a particular theory of liability is foreign to Pennsylvania pleading. Ours is a system of fact pleading, not “theory” pleading; a plaintiff is free to proceed on any theory of liability which the facts alleged in his complaint will support. Id. at 918, n.8; see also Zitney v. Appalachian Timber Prods., 72 A.3d 281 (Pa. Super. 2013).

Although a plaintiff may not assert a new “cause of action” after the statute of limitations has run, if an amendment “merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.” Connor v. Allegheny General Hospital, 461 A.2d 600, 602 (Pa. 1983). The Pennsylvania Superior Court addressed the issue of a “new cause of action” in Junk v. East End Fire Dep’t, 396 A.2d 1269 (Pa. Super. 1978), explaining:

A new cause of action does not exist if plaintiff’s amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent complaint. Id., at 1277.

I cite this case law because it is an accurate reflection of Pennsylvania law governing pleadings. It also obliterates the growing myth that a theory of liability is the same thing as a cause of action.

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

 

Hospital Injuries, Medical Malpractice

Medical Negligence, MCARE Act and Future Medical Expenses in Pennsylvania

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Credit: Darastar, Everystockphoto.com

Back in March 2002, Pennsylvania joined a host of other states in passing legislation aimed at insulating medical providers from liability for their negligence. Rather than accepting accountability for needless injuries caused by carelessness, physicians and large medical providers successfully lobbied to have special laws passed. Laws intended to make it more difficult for injured patients to receive compensation. Or stated another way, special laws that would make it easier for medical providers to get off the hook for their misconduct.
Citing dubious studies suggesting trial lawyers were responsible for escalating medical insurance premiums in the State (as opposed to formation and consolidation of giant health networks that placed patient care a distant second to growth and profitability), Pennsylvania passed the Medical Care Availability and Reduction of Error Act (“MCARE”). MCARE, despite its pretentious title, was a clumsily drafted tort reform act.
Among the various roadblocks to seeking justice erected by the MCARE Act was a provision that arguably makes it less profitable for trial lawyers to represent people injured by medical negligence.
Virtually all lawyers representing injured clients do so on a contingency basis. Most injured clients are unable to pay a lawyer on an hourly basis, or front the costs of litigation, which can easily run into the hundreds of thousands of dollars. Contingency fee agreements provide a solution. Clients pay nothing, no fees, no costs unless there is a recovery. If litigation does result in a successful recovery, the attorney gets an agreed upon percentage of the net recovery, normally one-third.
In medical malpractice cases, as in most personal injury cases, plaintiffs can recover (among other things) the cost of future medical expenses. Historically, juries would award future medical expenses in a lump sum amount. In other words, if a jury found a defendant negligent, it would be instructed to: (1) determine how long they thought a plaintiff would live; (2) the amount of medical expenses the injured plaintiff would incur per year; and (3) multiply those two numbers and award that amount to the plaintiff in a lump sum.
Defendants often objected to this method of calculation with a credible argument. If a jury awarded a plaintiff a specific sum of money for yearly medical expenses assuming the plaintiff would live another 10 years, but the plaintiff only ended up living 2 more years, why should they have to pay the entire amount?
The MCARE Act changed this paradigm by prohibiting juries from awarding future medical costs in a lump sum. Instead, each verdict sheet should contain a specific amount of future medical expenses, itemized per year (i.e., 2018: $100,000; 2019: $102,000). The MCARE Act also specifies that a plaintiff is only entitled to future medical awards if they are alive. So if a jury awarded a plaintiff future medical awards from 2017 to 2021, and the plaintiff died in 2018, he would not be permitted to receive the amounts awarded for 2019-2021.
But the MCARE Act threw in one more twist. Instead of a plaintiff lawyer receiving a previously agreed percentage fee for the future medical component of an award, the ACT operated to reduce the fee of the lawyer. Under the MCARE Act, future medical expenses awarded by the jury need to be reduced to present value for purposes of calculating attorney fees. So, using our previous example, if a jury awarded $102,000 for future medical expenses in 2019, that amount needs to be reduced to 2017 dollars (which will be something less than $102,000), and the lawyer will receive only a percentage of that lesser amount.
But the language of the MCARE Act is so unclear, for years defense lawyers have been arguing (frivolously) that the entire award should be reduced to present value (not just the amount awarded in attorneys fees). The upshot of this argument is that a medical defendant found liable for future medical expenses years into the future should only have to pay the present value of that award.
With respect to future medical costs, the MCARE Act states:
(b) Future Damages
(1) Except as set forth in paragraph (8), future damages for medical and other related expenses shall be paid as periodic payments after the proportionate share of counsel fees and costs based upon the present value of future damages awarded pursuant to this subsection. 40 P.S. §1303.509.
Now admittedly, this provision is very poorly written. And defense counsel have seized upon this poor draftsmanship to argue that juries need to reduce the amount of future medical awards to present value. The problem with this argument is that it is inconsistent with the purpose of the MCARE Act and really doesn’t make any sense.
Contrary to the defense bar’s arguments, the MCARE Act does not require reducing the future medical costs to present value before submitting them to a jury. In fact it requires just the opposite. Future medical costs are only reduced to present value after a verdict in order to award attorney’s fees. See Pa. SSJI (Civ.) § 14.150 (commentary).
This result is also compelled by logic. One of the benefits conferred by the MCARE Act to medical providers is that an award of future medical damages is paid out in yearly increments and only if the plaintiff is still living. Thus, considering the yearly amounts awarded by the jury are only paid in the future and only if the plaintiff is living, it would make no sense for the jury to reduce its award to present value before entering the verdict.
Judge Rambo reached this exact conclusion in a case of first impression in the Middle District of Pennsylvania in 2014. See Late v. U.S., No. 13-0756, 2014 U.S. Dist. LEXIS 112999, at *5 (M.D. Pa. Aug. 14, 2014). Two years later in Shiflett v. Lehigh Valley Hospital, Judge Carol McGinely reached the same conclusion.
But it was not until last month that the issue was finally (I think) put to rest. In Tillery v. CHOP, the Superior Court finally had an opportunity to address the issue. Following the logic of Judges Rambo and McGinley, the Superior Court rejected any argument that the MCARE Act required future medical costs to be reduced to present value by the jury. To the contrary, the Superior Court held that future medical costs are only reduced to present value for purposes of calculating attorneys’ fees.
James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/