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Superior Court: Due Care Required Of Physicians Performing Peer Review Services

Posted in Pennsylvania Superior Court, Trial Practice

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I pleased to share with you the following post from my colleague J.Benjamin Nevius, Esquire who practices in our Chester County Office.

Last week, the Pennsylvania Superior Court issued an opinion in Pollina v. Dishong, 2014 PA Super 153 (Pa. Super. Ct. 2014), holding that neither the Pennsylvania Peer Review Protection Act, 63 Pa.C.S.A. § 425.1 et seq., nor the doctrine of judicial privilege, will insulate a physician against negligence claims arising from a failure to exercise due care in the peer review process.

In 2010, Pennsylvania’s Bureau of Program Integrity (“BPI”) received a complaint from a disgruntled former employee of a dental practice located in Johnstown, Pennsylvania.  The employee alleged that the practice and its proprietor (together, the “Provider”), had engaged in fraudulent billing practices with respect to Pennsylvania’s Medical Assistance program (“MA”) – also known as Medicaid.  BPI, which frequently retains medical professionals to perform peer review services in connection with fraud investigations, retained Arthur Kravitz, DMD to assist with the investigation.

Dr. Kravitz attended an unannounced inspection of the Provider, interviewed employees, and reviewed 78 patient files.  At the conclusion of his investigation, Dr. Kravitz issued a report opining among other things, that the Provider over-prescribed medications and performed unnecessary dental procedures.  As a result of Dr. Kravitz’s findings, BPI referred the matter to the Pennsylvania Attorney General (“AG”) for further handling.  In October 2011, BPI suspended MA payments to the Provider during the pendency of the investigation, as required by law.

The Provider appealed to the Bureau of Hearings and Appeals (“BHA”), another bureau within the DPW, seeking to reinstate the MA payments.  Both the BHA and AG ultimately concluded that there was insufficient evidence to support the fraud allegations and, in April 2012, BPI reinstated the MA payments.  By that time, however, the damage had already been done.  The Provider sustained substantial economic loss as a result of the suspension, and had terminated all but three essential employees.

The Provider subsequently sued Dr. Kravitz for failure to exercise due care in his investigation.  Dr. Kravitz filed preliminary objections, arguing that he is entitled to peer review immunity and/or judicial privilege because he rendered his opinions in the course of a judicial or quasi-judicial proceeding.  The Superior Court refused to extend immunity to Dr. Kravitz for many reasons, the biggest being that the allegations did not pertain to the substance of Dr. Kravitz’s professional opinions, but rather the care used in investigating the allegations against the Provider.

Citing LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186, 191 (Pa. 1999), the Superior Court held:

[T]he goal of ensuring that the path to truth is unobstructed and the judicial process is protected, by fostering an atmosphere where the expert witness will be forthright and candid in stating his or her opinion, is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion.  The judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession.

The decision demonstrates the exposure physicians face in performing peer review services, particularly when an opinion could mean termination or suspension of MA payments to a medical provider.  Physicians offering peer review services to BPI and other review organizations (including insurance carriers) should review coverage to ensure they are adequately protected against risk.

No Duty to disclose murder suicide when selling a home in Pennsylvania

Posted in Uncategorized

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            Hopefully, this scenario does not happen very often.  Specifically, you sell a home where there was previously a murder suicide.  Well, it happened in the case Milliken v. Jacono.

            I previously blogged on the Pa Superior Court Decision where the court found no duty to disclose. When the Pa Supreme Court accepted the case we wondered whether the Court would now impose such a duty.

            The Pennsylvania Supreme Court in a short and precise decision affirmed the Pa Superior Court. The Court in a case of first impression found that in Pennsylvania that Psychological stigmas are not material defects that require disclosure by a seller.  Again, I do not know that this decision has many practical implications. However, it would make a great law school exam question.



Pa Rule of Civil Procedure 4003.5 amended to prohibit discovery of communications with experts

Posted in Uncategorized

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            The Pennsylvania Supreme Court has put to rest any arguments that can be made for the disclosure of attorney communications with expert witnesses or draft reports.  First there was the Barrick case, which I previously posted on.  The Pa Superior Court found that the communications were not discoverable. That ruling was brought into question when the Pa Supreme Court granted allocator.  However, the Court affirmed the Pa Superior Court this past April and found that those communications were not discoverable.

            Now, to completely shut the door the Pa Supreme Court has issued an order amending Pa rule of civil procedure 4003.5 which deals with discovery of expert testimony and reports. Pursuant to the amendment the Court added the following language:

A party may not discover the communications between

another party’s attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law. This provision protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts”


            So, unlike Federal Court, in Pennsylvania Courts, you cannot obtain copies of correspondence with an expert or a copy of any of their draft reports.  It is a good rule and protects the candor and the relationship between counsel and experts.


Valet service owes no duty or liability for returning car to intoxicated driver!

Posted in Court of Common Pleas, Pennsylvania Superior Court, Trial Practice

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            The Pennsylvania Superior Court recently issued a decision on an issue of first impression in the Commonwealth of Pennsylvania. The case dealt with the duty and ultimate liability of a valet service when a car is returned to an allegedly intoxicated patron.

            In this case, an alleged intoxicated patron was given keys to his car and then drove away and was involved in an accident that resulted in his death.  The PA Superior Court found that there was a mutual bailment and that the valet service was bound to turn over the keys to the patron when he demanded his keys. As the valet service had no right to retain the car they could not be found liable for returning the car. 

            While the Superior Court noted sympathy for the loss of life, the Court found as a matter of law that the Valet service was not liable.

Pa Superior Court finds that Asbestos claim barred by statute of repose

Posted in Court of Common Pleas, legislation, Pennsylvania Superior Court, Trial Practice


            Today the Pennsylvania Superior Court found that an asbestos claim was barred by a statute of repose.  The Plaintiff had argued that pursuant to the Abrams case, the Pennsylvania Supreme Court had found that there was no statute of repose in Asbestos.  The Pa Superior Court disagreed.

            In this case, the applicable statute of repose was found at 42 Pa C SA section 5536 which barred any claim filed more than 12 years after completion of construction of an improvement to real property.   The Pa Superior Court found that this statute prevailed and that the dicta in the Abrams case did not compel a different result.  The Court further found that if there is to be an exception to this statute for Asbestos cases that is within the purview of the legislature not the Courts.

            Thus, the Pa Superior Court revised the lower court decision and set aside a jury verdict. 


Today’s Pennsylvania Appellate Court Posted Decisions

Posted in Pennsylvania Commonwealth Court, Pennsylvania Superior Court, Pennsylvania Supreme Court

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            On a regular basis the Pennsylvania Appellate Courts post opinions, with the most opinions being posted by the Pennsylvania Superior Court.  The Commonwealth Court delineates an opinion as “reported” as compared to the Superior Court’s delineation of “published” and “unpublished”. See my previous post regarding the Superior Court rules on referencing “unpublished” opinions.            

            Today the Commonwealth Court posted two reported zoning decisions, one affirming the lower court and another reversing the lower court.  The Pennsylvania Superior Court posted twelve unpublished decisions.  




Pa Supreme Court refuses to consider issue that was not delineated in statement of issues presented

Posted in Pennsylvania Supreme Court, Trial Practice

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            Today the Pennsylvania Supreme Court issued a 59 page decision on a personal income tax issue. If you practice tax law, which I do not, the case will be of interest to you.

            The language in the case that should be of interest to trial attorneys is found on the last two pages of that decision.  There the Court found that the Appellant waived an issue since they did not include the issue in the statement of issues presented.  The Court found that Pa R.A.P. 2116 (a) “is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.”

            Next time you submit a brief on appeal make sure you compare your statement of issues to what is included in your brief.  Otherwise, the issue is waived. That was the result in this case.


Pa Superior Court strikes down law firm quantum meruit claim

Posted in Court of Common Pleas, Evidence, Pennsylvania Superior Court, Trial Practice


            Today the Pa Superior Court reversed a lower court decision and struck a quantum meruit claim for attorney’s fees. The case involved a dispute between two law firms regarding a fee from a personal injury lawsuit.

             The Court found that there was a contract that governed the situation and that the contract foreclosed any quantum meruit claims.  The Court further found that the law firm was entitled to compensation pursuant to the contract and receive two-thirds  of the fee from a personal injury lawsuit.

            The Pa Superior Court remanded the case for the lower court to calculate the revised fee. In a footnote the Pa Superior Court commented that they would not calculate the fee since that was the job of the Lower Court. The Court reminded the parties and the Lower Court that the Pa Superior Court was an error correcting court and in essence they were leaving the math to the Lower Court.


Pa Superior Court Rules that Firecracker injury case must proceed to trial

Posted in Court of Common Pleas, Pennsylvania Superior Court, Trial Practice


            Today the Pennsylvania Superior Court reversed a lower court decision granting summary judgment dismissing a case in which Robert J. Thompson was injured while assisting in a fireworks show.  The Defendant argued that Thompson assumed the risk of injury and moved for summary judgment based upon the assumption of the risk doctrine.

\           On appeal the Pa Superior Court reversed the lower court and remanded for the case to proceed to trial.  In its ruling the Court found that there was a dispute of fact as to the size of diameter of the mortar tubes used in the show. The Court further found that the question of whether the Plaintiff assumed the risk was a jury question.


Changes in Montgomery County Court of Common Pleas Judicial Assignments

Posted in Court of Common Pleas

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Every 18 months the president Judge of Montgomery County Court of Common Pleas issues the judicial assignments.  In recent years there have been few changes in assignments.  This year is no exception.  The only changes that have been made this year are that Judge Carluccio is moving from criminal to civil, Judge Rogers from civil to criminal and Judge Bertin from family to civil.

The new judicial assignments take effect June 30, 2014 and below are the assignments:

Civil Division

Honorable Thomas M. Del Ricci (Civil Administrative Judge)

Honorable Emanuel A. Bertin

Honorable Thomas C. Branca

Honorable Carolyn T. Carluccio

Honorable Richard P. Haaz

 Criminal Division

Honorable William J. Furber, Jr. – President Judge

Honorable William R. Carpenter- Criminal Administrative Judge

Honorable Steven T. O’Neill

Honorable Thomas P. Rogers

Honorable Garrett D. Page

Honorable Wendy Demchick-Alloy

Honorable Gary S. Silow

Honorable Cheryl  L. Austin

 Family Division

Honorable Rhonda Lee Daniele

Honorable Stephen R. Barrett

Honorable Kelly C. Wall- Family Administrative Judge

Honorable Patricia E. Coonahan

Honorable Gail A. Weilheimer

Honorable Steven C. Tolliver

 Orphans Court

Honorable Stanley R. Ott

Honorable Lois E. Murphy

 Juvenile Court

Honorable Joseph A. Smyth

 Contact Information for the Judges and their Chambers can be found at http://www.montcopa.org/index.aspx?NID=1396