On the Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories

In a case in which Carol VanderWoude (Philadelphia, PA) and John Hare (Philadelphia, PA) acted as amicus curiae counsel for The Pennsylvania Defense Institute, the Pennsylvania Supreme Court reversed the Superior Court and refused to expand the duties of Pennsylvania physicians to inform third parties of the risks associated with communicable diseases. Seebold v. Prison Health Services, Inc., 2012 Pa. LEXIS 3011 (Dec. 28, 2012).

Kim Boyer-Cohen (Philadelphia, PA), in a case of first impression, persuaded the Pennsylvania Supreme Court to reverse the en banc Superior Court. In Thierfelder v. Wolfert, a wife and husband sued their family physician, alleging that the doctor began an affair with the wife while treating her for anxiety, depression and marital problems, and that the doctor's actions worsened the wife's psychological condition. The trial court had granted the doctor's preliminary objections and dismissed the plaintiffs' claims, including those for negligence, medical malpractice, battery and infliction of emotional distress. On appeal to the Superior Court, a 6-3 majority of the Superior Court overturned the trial court's decision and remanded, finding that "[a] patient does have a cause of action against either a psychiatrist or a general practitioner rendering psychological care, when during the course of treatment the physician has a sexual relationship with the patient that causes the patient's emotional or psychological symptoms to worsen." The Pennsylvania Supreme Court granted allocatur, limited to deciding "whether, for purposes of determining professional negligence, a general practitioner who provides mental health treatment to a patient is held to the same higher duty as a specialist in psychiatry or psychology." After engaging in a very exhaustive review and analysis of the law in Pennsylvania, as well as other jurisdictions, the Pennsylvania Supreme Court held that, as a general practitioner, the general practitioner defendant was under no specific or "heightened" duty in tort to refrain from sexual relations with his patient under circumstances where he provided "incidental mental health treatment." The Supreme Court also found that the facts alleged by the plaintiffs did not establish that the doctor violated his duty of care to the plaintiffs, which was that of a general practitioner and not that of a mental health specialist, and rejected the Superior Court's decision, which held the doctor to a novel duty and standard.

Audrey Copeland (King of Prussia, PA) on the appeal and Michele Punturi (Philadelphia, PA) at the Workers' Compensation Bureau level garnered a significant victory from the Commonwealth Court, sitting en banc, which found no error by the Workers' Compensation Judge in treating the employer's opposition to a penalty petition as a petition to terminate. Noting that strictness of pleadings is not required in workers’ compensation matters, the court held that the judge was empowered to take the appropriate action based on the evidence in the absence of a formal petition where the claimant was not prejudiced. The claimant, who voluntarily retired from the work force, had notice that a suspension was at issue; thus, suspension of his benefits retroactive to the employer’s unilateral suspension was proper. The denial of the penalties was not in error because there was no compensation due upon which a penalty could be awarded. Krushaukus v. WCAB (General Motors), 56 A.3d 64 (Pa. Cmwlth. 2012).

Chuck Craven (Philadelphia, PA), working closely with Jack Farrell (Philadelphia, PA) in a claimed paraplegic medical malpractice case, supplemented the briefs filed in support of in personam preliminary objections and successfully defeated the plaintiff's subsequent appeal to the Pennsylvania Superior Court from the dismissal of our client, a New Jersey doctor who was sued in Pennsylvania. The plaintiff contended that the doctor could be sued in Pennsylvania because that was where the spinal infection for which the doctor treated the plaintiff culminated in the plaintiff's claimed paralysis. In the plaintiff's view, although the infection stemmed from a surgery the plaintiff underwent in Pennsylvania, the doctor's allegedly negligent treatment of the infection in New Jersey caused her alleged harm in Pennsylvania and, thus, fell squarely under 52 Pa.C.S. §5322(a)(4) (regarding conduct outside this Commonwealth which causes tortious injury in this Commonwealth). In addition, the plaintiff contended that the doctor had the requisite minimum contacts with Pennsylvania because he had a Pennsylvania medical license; his practice had been associated for several years with Jefferson University Hospital in Philadelphia; the doctor belonged to and was the president of a medico-social group based in Philadelphia; the doctor took several CME courses in Pennsylvania; and his E-Z Pass account showed numerous trips into Pennsylvania. However, a unanimous Superior Court panel, in a precedential opinion, upheld the defense arguments and sustained the dismissal of the doctor for lack of in personam jurisdiction.

Examining the parties' respective arguments, the court concluded "[t]hat in the instant action, the alleged negligence of Underwood and Doctor Ocasio did not '[cause] harm or tortious injury in this Commonwealth' as contemplated by section 5322(a)(4). The mere fact that Mendel's paralysis was discovered in Pennsylvania, or that it manifested in Pennsylvania, does not necessarily mean that it was caused in Pennsylvania." Noting that "[c]ourts have generally been reluctant to extend specific personal jurisdiction to out-of-state medical providers for causing injury to Pennsylvania patients, even though the effects of the doctors' negligence may be felt in Pennsylvania," and that "[t]he majority of other jurisdictions have applied a similar approach to personal jurisdiction over out-of-state doctors in medical malpractice actions," the Superior Court explained that this policy "assumes that medical practices tend to be 'localized' within a single state" and that "courts are more likely to uphold specific jurisdiction over out-of-state physician" only "where the practice involves interstate activity, either through marketing or purposeful and continued treatment of foreign patient." As the defense explained in detail, none of those criteria existed in this case: the doctor restricted his practice to New Jersey and never saw patients in Pennsylvania, and his activities in Pennsylvania were incidental to his New Jersey medical practice and had nothing to do with the plaintiff's infection or claimed paralysis. Mendel v. Williams, 52 A.3d 810 (Pa. Super. 2012).

Chuck Craven (Philadelphia, PA) obtained affirmance of a judgment in a Fourth Amendment civil rights case tried by Paul Krepps (Pittsburgh, PA). Chuck briefed the case in its post-trial motions stage and on appeal to the Third Circuit. The plaintiff claimed that the defendant police officer conducted an illegal search of his vehicle after a lawful traffic stop. In the plaintiff's view, the police officer conducted three searches: the first one was of his person for weapons; the second was of his car for contraband after the police officer saw a marijuana seed on the driver's seat; and the third was an inventory search of the vehicle, which had to be towed, because the plaintiff could not lawfully drive the car. The police officer denied that the second search ever took place and explained in detail why he had no interest in pursuing such a minor item as a marijuana seed. In a prior appeal from the district court's grant of summary judgment for the defendants, the Third Circuit assumed that the second search took place and found that it may have been illegal because there were no exigent circumstances to justify a warrantless search for contraband. The Court of Appeals upheld summary judgment on the first and third searches. However, the plaintiff contended in the district court on remand and in the Court of Appeals in the present appeal that the illegality of the second search had been established by the prior appeal and that the district court violated the Court of Appeals' mandate and committed reversible error when it allowed the jury to determine whether the second search ever actually took place. A unanimous three-judge panel of the Court of Appeals upheld the defense arguments that the district court was correct in submitting the issue to the jury and that the jury's verdict in favor of the police officer was supported by the record. So holding, the court affirmed the judgment that had been entered on the jury's verdict for the defendant police officer. Gomez v. Markley, 2012 U.S. App. LEXIS 17545 (3rd Cir. Aug. 21, 2012).

Defense Digest, Vol. 19, No. 1, March 2013