.

Matthew P. Keris

Chair, EMR and Audit Trail Practice

Shareholder

Portrait of Matthew P. Keris

Matthew has defended health care providers, businesses and device manufacturers in civil litigation for more than two decades. He is a shareholder in the firm's Health Care Department and Chair of the EMR and Audit Trail Practice Group. Matt is also an Mcare-approved mediator.

Matt had the privilege of trying the first Pennsylvania civil jury trial to verdict during the COVID-19 Pandemic in July 2020.

In addition to his litigation practice, Matt is a recognized thought leader whose insights have been featured by prominent outlets including NBC News, Thomson Reuters, and Law360. He is frequently invited to provide commentary for leading industry publications such as The Legal Intelligencer, Becker’s Hospital Review, ED Legal Letter, Risk Review, Litigation Management, and Counterpoint. Matt also serves as an editor of the health risk management journal, Patient Safety.

Matt currently serves on the advisory committee of American Legal Connections (ALC) and serves as a co-editor of its’ newsletter. He has previously served as President of the DRI Foundation, Pennsylvania Defense Institute (PDI) and the Pennsylvania Association for Health Care Risk Management. He also previously served on the Board of Directors of both DRI and PDI. In 2023, Matt was the recipient of the DRI Foundation Community Service Award, which honors a DRI member who has demonstrated a commitment to the well-being of the general public by initiating or participating in programs which have a positive impact on the community.

    • Roger Williams University School of Law (J.D., 1996)
    • Shippensburg University of Pennsylvania (B.A., cum laude, 1993)
    • Pennsylvania, 1996
    • U.S. District Court Middle District of Pennsylvania, 2000
    • New York, 2011
    • U.S. District Court Northern District of New York, 2020
    • Connecticut, 2021
    • U.S. Supreme Court, 2023
    • AV® Preeminent™ by Martindale-Hubbell®
    • The Best Lawyers in America®, Medical Malpractice Law - Defendants (2023-2026)
    • The Best Lawyers in America®, Litigation – Health Care (2024-2026)
    • Defense Research Institute Foundation Community Service Award, 2023
    • DRI Leadership Award 2023
    • “Service Award” by the Defense Research Institute, October 2021
    • "Exceptional Performance Citation" by the Defense Research Institute, July 2015
    • American Legal Connections, Healthcare Advisory Committee Member
    • American Society for Health Care Risk Management (ASHRM)
    • Claim and Litigation Management Alliance (CLM), Co-Chair for Pennsylvania Membership Development, 2012
    • Defense Research Institute (DRI), Atlantic Region Director, 2019-2021; State Membership Chairman, 2017; State Representative to DRI on behalf of Pennsylvania Defense Institute, 2017
    • DRI Foundation, President, 2021-2023
    • Healthcare Standards Institute (HSI), Workgroup on AI Governance Standards for Healthcare Operations
    • Lackawanna County Bar Association
    • Pennsylvania Association for Health Care Risk Management (PAHCRM), President, 2026, 2016, 2012
    • Pennsylvania Bar Association, Health Care Law Committee, Secretary, 2010-2012; Health Care Law Subcommittee on Civil Litigation, Chairman, 2011
    • Pennsylvania Coalition for Civil Justice Reform
    • Pennsylvania Defense Institute (PDI), President, 2014; Executive Board, 2009-2013; Board of Directors, 2007-2009, 2015-2023; state representative to the Defense Research Institute, 2017
    • Obtained a defense verdict in a long-term case that included a unique spoliation issue, allegations of cover-up regarding the cause of death and a “no show” plaintiff-son. A longtime nursing home resident died after suffering head trauma following a fall. The plaintiff was the resident’s son, who was not his mother’s guardian and, according to staff, had not visited her in the three years that she was in residence. The cause of death was “end stage dementia” and upon learning the same, the plaintiff contacted a lawyer who delivered the body across the state to a forensic pathologist for a private autopsy, and the body was subsequently cremated. No notice was provided to the nursing home administration of the impending autopsy. The forensic pathologist alluded that the cause of death was not end stage dementia, but blunt force trauma. The defense did not learn about the private autopsy until years later when the report was provided in discovery. A motion for sanctions for spoliation was filed by the defense which was followed by depositions of the funeral home staff, and a hearing involving the forensic pathologist and the attending physician. The forensic pathologist admitted that autopsy specimens were lost and photos claimed to not exist by plaintiff’s counsel, in fact were on her computer. Although the spoliation motion was denied, the court held that at trial, the defense could question the forensic pathologist on the cremation, destroyed specimens and failure to produce the autopsy photographs at trial. On the eve of trial, the judge proctored an agreement between the parties to arbitrate the case “on expert reports only.” At arbitration, plaintiff’s counsel continued to pursue a conspiracy theory about “the true cause of death” along with standard negligence criticisms about fall prevention. The plaintiff was cross-examined on a prior crimen falsi conviction and an Orphans’ Court petition initiated by the local Area Agency on Aging where the deceased resident complained that she was afraid of her son which was relevant to his “loss of society and companionship” claim. 
    • Received a unanimous defense jury verdict within thirty minutes of deliberation in a five-day fire-loss subrogation trial. This case was one of the first Pennsylvania civil jury trials held during the COVID-19 pandemic. Taking into account safety and social distancing protocols, jury selection took place in a local school auditorium, two witnesses presented testimony via Zoom, and everyone present in the courtroom was subject to temperature screenings and required to wear a face covering. Given the current national health situation, this trial could serve as an example of how the court system and counsel can adapt to the changing health and legal landscape. 
    • Obtained entry of judgment of non pros based on the plaintiff’s failure to timely and properly file a Certificate of Merit (COM) in accordance with Pa.R.C.P. 1042.3 on behalf of a nursing home chain and its consulting company. With the Complaint, plaintiff attached an expert report from a nursing expert but did not attach a COM. Defendants filed a Notice of Intent to Enter Judgment of Non Pros, and judgment was subsequently entered. The plaintiff then filed a Petition to Strike/Open the Entry of Judgment of Non Pros, arguing that the expert report attached to the Complaint constituted a COM. The defense successfully fought the plaintiff’s attempts to open the judgment. The Court ultimately found that plaintiff’s repeated failures to comply with the applicable rules placed their case “beyond the purview of equitable relief,” and therefore reinstated the entry of judgment and dismissed plaintiff’s Complaint with prejudice.
    • Received a defense verdict in less than one hour in a dental malpractice case involving allegations of the use of excessive force and the failure to obtain the patient’s informed consent after a patient’s jaw was fractured during a molar extraction. It was admitted that jaw fracture was a known risk of the extraction, but that the dentist did not warn the patient of this risk. It was also conceded that the dentist caused the fracture. Lastly, the patient’s damages were not contested, which included the pain and suffering associated with the fracture and permanent numbness to the lower jaw. On cross-examination of the patient’s seasoned expert, he was confronted with prior inconsistent testimony regarding his experience in extracting molars and his opinion that all risks of a procedure need to be shared with the patient. Further, the expert agreed with the defense’s argument that the risk of jaw fracture of an erupted right lower molar was less than .0009% and the patient had a better chance of dying from complications associated with the extraction than suffering a fracture. The jury was persuaded by the defense’s arguments early in the case due to the thorough cross-examination of the patient’s expert. 
    • Received defense verdict in a wrongful death and survival medical malpractice arbitration involving a single mother in her twenties from toxic shock syndrome. The plaintiff was admitted to a hospital facility with a provisional diagnosis of anaphylaxis secondary to a medication allergy. The patient deteriorated under the supervision of a nurse practitioner while on a telemetry unit and was eventually transferred to the intensive care unit. The patient succumbed to her condition several days later. There was a substantial future economic damage and pain and suffering component to the case given the plaintiff’s young age, rapid decline and extent of necrosis (face, upper and lower extremities).
    • Obtained a defense verdict in a nursing negligence claim. The plaintiff alleged to have suffered a fall in a hospital bathroom three days post-operatively that re-injured his surgically repaired knees. The nurses denied the patient fell to the ground and testified, consistent with their charting, that the patient lost balance in the bathroom and sat on a commode. There was a significant economic damage claim in that the plaintiff was a young restaurant owner who suffered two distinct orthopedic injuries that required multiple surgeries and additional future care. The jury returned a defense verdict 50 minutes after deliberation began, finding that the nurses were not negligent.
    • Obtained a defense verdict in a medical malpractice trial involving a middle-aged mother of two who was allegedly left a quadraparetic and wheelchair-bound as a result of a physician’s failure to timely diagnose and treat an infectious process of the cranial nerves and cerebellum. The plaintiff argued that as a result of the alleged negligence, she needed home health care for the rest of her life and submitted expert testimony arguing for the recovery of boardable future medical expenses totaling $4 million and past and future pain and suffering. The last settlement demand was $2 million.  No settlement offers were made prior to or during trial.
    • Successfully argued for the dismissal of punitive damages and Scampone corporate negligence claim against a Pennsylvania nursing home involving a resident who was injured while undergoing physical therapy at the facility. At the conclusion of considerable discovery yielding thousands of pages of administrative documents and multiple corporate defendant witnesses and former employees of the facility, summary judgment was granted as to plaintiff’s claims that neglect, lack of appropriate staffing and the facility owner’s general desire to make a profit over patient care caused or contributed to her injuries. In light most favorable to the plaintiff, the court held that the resident did not link the allegations of neglect and understaffing to her injuries which occurred in an acute incident during physical therapy. In addition, the court rejected the possible imposition of punitive damages, citing deposition testimony from the plaintiff about her interactions with the nursing home staff that was inconsistent with conduct warranting the imposition of punitive damages and the opinions of her own experts.
    • Inaugural PDI & PAJ Trial Academy, Faculty, Penn State School of Law, State College, PA, May 27-29, 2026
    • Ambient Listening and Surgical Black Boxes: A Primer, Panelist, ALC Virtual Education, April 19, 2026
    • Current Landscape in Nursing Home Litigation, Defense Counsel Panelist, Pennsylvania Bar Institute Virtual Education, April 17, 2026
    • A Conversation with RaDonda Vaugh on Criminalizing Errors, PAHCRM Annual Meeting, State College, PA,  April 9, 2026
    • Latest Trends and Risks of AI’s Integration into Medicine, Hawaii Association of Healthcare Risk Management Virtual Education, March 24, 2026
    • Anticipated AI Discovery Issues in Litigation, Association for Corporate Counsel Virtual Education, February 12, 2026
    • Anticipated Discovery Issues with Use of AI in Health Care: Views from the Plaintiff and Defense Perspective, Philadelphia Court of Common Pleas, In-Person Continuing Judicial Education, co-presenter, Philadelphia, PA, October 30, 2025
    • Anticipated AI Discovery Issues in Malpractice Litigation, ALC webinar, October 23, 2025
    • The Role of AI and EMRs in Discovery, MCIC Vermont Annual Client Education Conference, National Harbor, MD, October 22, 2025
    • When AI Meets Medicine, State Volunteer Mutual Insurance Company,  Podcast Guest, October 10, 2025
    • Audit Trail 101: Views from the Plaintiff and Defense Perspective, Part I, Philadelphia Court of Common Pleas, In-Person Continuing Judicial Education, co-presenter, September 25, 2025, Philadelphia, PA
    • Pennsylvania Medical Malpractice Legal Update, Pennsylvania Coalition for Civil Justice Reform webinar, July 21, 2025
    • New Jury Considerations in the Age of Big Law, Verdicts, and Medicine; and AI in Healthcare: Views from a Clinical and Legal Perspective, Hospital Insurance Forum 2025 Conference, Charleston, SC, June 2025
    • How to Prepare for AI from a Medico-Legal Perspective, MPLA Annual Meeting, Austin, TX, May 22, 2025
    • Leave No Footprint: Tips to Reduce Scrutiny on Non-Charted Information, University of California Health System Virtual Risk Summit 2025, May 19, 2025
    • Behind the Scenes: Understanding New Discovery Tactics and the Impact on Clinical Documentation, Virtual Allied World Presentation, May 15, 2025
    • Tips to Minimize and Manage Your Audit Trail Footprint, New England Regional Healthcare Risk Management Conference, Portland, ME, May 5, 2025
    • Legal Update, co-presenter, American College of Surgeons Keystone Chapter Spring Conference, Wilkes-Barre, PA, May 2, 2025
    • Tips for Keeping a “Clean” Medical Record in an Electronic World, 2025 PAHCRM Annual Education Conference, Lancaster, PA, April 16, 2025
    • Texting: A Tool and a Trap, American Legal Connections webinar, February 6, 2025
    • AI in Civil Litigation Practice: An Intro and Discussion on What is Coming, Philadelphia Association of Defense Counsel webinar, January 21, 2025
    • A-Z on AI! Artificial Intelligence Litigation Trends and Ethical Issues, webinar panelist, Pennsylvania Coalition for Civil Justice Reform, December 9, 2024  
    • Defending Artificial Intelligence Claims, AM Best Webinar, November 13, 2024
    • Doing It Right the First Time: Recommendations to Safely Use AI in Health Care, ASHRM 2024 Annual Conference, San Diego, CA, October 8, 2024
    • Multi-Disciplinary Evaluation of Opportunities and Risks with Artificial Intelligence (AI) in Health Care, ASHRM 2024 Annual Conference, San Diego, CA, October 8, 2024
    • Public Perception of "Big Medicine" Requires New Jury Considerations, ASRHM 2024 Annual Conference, San Diego, CA, October 7, 2024
    • The Future is Now: How AI is Being Used with Data Analytics Today and Maybe Tomorrow, panelist, Candello Annual Summit, Boston, MA, September 11, 2024
    • Multi-Disciplinary Evaluation of Liability Risks of AI in Health Care: The Board Focus, co-presenter, American Hospital Association Leadership Summit, San Diego, CA, July 22, 2024 
    • Advancement of AI Into Medicine, AEIX Event, Tysons Corner, VA, June 6, 2024
    • Charting Tips to Help the Future You, LVHN Annual Risk Symposium, Center Valley, PA, May 18, 2024
    • Coming to a Case Near You: AI in Medicine, Marshall Dennehey Trends in Health Care and Health Law Seminar, May 9, 2024
    • EHRs Under Examination: The Role of Clinical Informatics Experts in Legal Proceedings, AMIA 2024 Clinical Informatics Conference, Minneapolis, MN, May 2024 
    • Artificial Intelligence in Healthcare: An Introduction, 2024 AALNC Annual Forum, Pittsburgh, PA, April 19, 2024
    • Guidance On Navigating Your Institution During Multiple Legal Investigations, PAHCRM Spring 2024 Educational Meeting, Lancaster, PA, April 12, 2024
    • Advice for the Efficient Integration of AI Into Medicine, Co-Presenter, Hospital Insurance Forum Annual Meeting, Scottsdale, AZ, March 18, 2024
    • Voir Dire of an EMR/Audit Trail Expert, American Legal Connections webinar, March 15, 2024
    • Roundtable on Social Inflation, Co-Moderator, DRI IRT Meeting, Chicago, March 13, 2024
    • The New Liability Target: Forensic Patient Record Interactions, MPL Dental Workshop, Savannah, GA, February 16, 2024
    • Liability Risks of AI in Healthcare, co-presenter, 1st Annual Upstate Educational Meeting, Association for Healthcare Risk Management of New York, Saratoga, NY, October 30, 2023
    • Latest Developments on Healthcare AI Liability and EMR Site Inspections, co-presenter, American Legal Connections, webinar, October 26, 2023
    • Evaluating the Use of AI in Obstetric Diagnostics: Understanding Enhanced Capability and Inherent Risks, Forum on Obstetric Malpractice Claims, Philadelphia, PA, October 12, 2023
    • The Good, Bad, and Ugly in Defending a Hospital Security Assault Case, Moderator, ASHRM Annual Meeting, Minneapolis, MN, October 2, 2023
    • Medical Record Audit Trail Data and Inspections: What to Do When Data and Inspections are Requested in Litigation, panelist, Florida Society for Healthcare Risk Management and Patient Safety annual meeting; Orlando, FL, August 24, 2023
    • Criminal Prosecutions: Dobbs and the Future of Care, American Legal Connections Healthcare Symposium, Atlanta, GA, July 27, 2023 
    • Mistake or Crime?: The Criminalization of Healthcare Errors, panelist, Medical Professional Liability Association Conference, New Orleans, LA, May 18, 2023
    • AI Liability: What is Brewing and What We Will See, University of Rochester webinar, April 21, 2023
    • Best Practices for an Audit Trial Expert Deposition, co-presenter, American Legal Connections, webinar, April 6, 2023
    • Defending Rule 30(b)(6) Corporate Designee Depositions, co-presenter, ALC Regional Meeting, Atlanta, GA, March 23, 2023
    • Criminalization of Medical Errors - Will it Make Us Safer?, co-presenter, Hospital Insurance Federation, Annual Meeting, Scottsdale, AZ, March 20, 2023
    • Legal and Ethical Pitfalls in Managing Dual Civil and Criminal Investigations, DRI Medical Liability and Health Care Law Seminar, Chicago, IL, March 10, 2023
    • Relationships Matter: A Frank Discussion of Hot Button Issues Facing Claims Professionals and Counsel, panelist, DRI Insurance Roundtable, Chicago, IL, March 8, 2023
    • Artificial Intelligence in Healthcare: The Good, Bad, and Ugly, SCAHRM webinar, March 28, 2023
    • Fostering a Culture of Success: How to Get Your Lawyers’ and Staff’s Mindset from Surviving to Thriving, co-presenter, Association of Legal Administrators, Philadelphia Chapter webinar, January 26, 2023
    • The New Liability Issues of Artificial Intelligence in Health Care, Ethicon, a division of Johnson and Johnson, webinar, December 12, 2022
    • Recent Cases Warn Defendants Not to Become Lost on the Audit Trail, American Legal Connections webinar, December 1, 2022
    • It’s Not All About the Virus: Defending “Other” COVID-19 Pandemic Claims, ASHRM Annual Conference, Boston, MA, September 13, 2022
    • Legal and Technical Arguments to Manage, Explain and Defend Audit Trail Information, DRI Senior Living and Long-Term Care Litigation Seminar, Nashville, TN, September 9, 2022
    • "Managing Parallel Criminal and Civil Investigations," American Legal Connections Healthcare Risk and Litigation Symposium, Atlanta, GA, July 28, 2022
    • "Litigation Risks Associated with AI in Healthcare," Thomson Reuters webinar, June 27, 2022
    • "Artificial Intelligence and Dentistry: Protecting Yourself From Liability," client webinar, June 16, 2022
    • "Risks and Legal Aspects of Artificial Intelligence in Health Care," Ohio Hospital Association Annual Meeting, Columbus, OH, June 14, 2022
    • A New Frontier: Maintaining Transparency and Defenses Following the RaDonda Vaught Criminal Verdict, CHART Institute virtual conference, June 7, 2022
    • New Risks With the Application of Artificial Intelligence to Medicine, Washington Healthcare Risk Management Society Annual Meeting, Seattle, WA, June 3, 2022
    • RaDonda Vaught: What Happened and What Can We Learn From Her Trial, virtual lesson, Duke University School of Nursing, June 2, 2022
    • A Hard Task: Balancing Transparency While Avoiding Liability Following the RaDonda Vaught Criminal Verdict, webinar, West Virginia ASHRM Chapter, May 20, 2022
    • Artificial Intelligence in Healthcare: Revolutionary or Risky?, panelist, Medical Professional Liability Association Annual Meeting, Salt Lake City, UT, May 13, 2022 
    • The New Reality - Managing the EMR and Audit Trail, panelist, New England Regional Healthcare Risk Management Conference, Groton, CT, May 2, 2022
    • A Discussion on the RaDonda Vaught Criminal Trial, panelist, New England Regional Healthcare Risk Management Conference, Groton, CT, May 2, 2022
    • Best Practices for Balancing Transparency While Avoiding Liability Following the RaDonda Vaught Criminal Verdict, American Society for Healthcare Risk Management, national webinar, April 15, 2022
    • Liability Issues with Artificial Intelligence in Healthcare Litigation, American Legal Connections, national webinar, January 27, 2022
    • Anticipated Liability Risks of Artificial Intelligence in Healthcare, ASHRM Annual Conference, October 4 (live session) and October 26, 2021 (virtual session)
    • Healthcare Acquired Infections in Nursing Homes and Hospitals: Standards of Practice, Claims, Defenses, Damages, Strafford Legal Publications National Webinar, October 19, 2021
    • Coming Soon: AI Issues in Healthcare Liability Claims, Pennsylvania Association for Healthcare Risk Management, September 17, 2021
    • The Risks and Legal Aspects of Artificial Intelligence in Healthcare, Hospital Insurance Federation webinar, May 19, 2021
    • The Future is Here: AI and Healthcare Claims, South Carolina Chapter of the American Society of Healthcare Risk Management webinar, April 23, 2021
    • Integrating Health Care and Technology: Apps, Medical Devices and AI, client webinar, February 18, 2021
    • Artificial Intelligence in Medicine: Risk Management and Litigation Issues, online continuing education conference, Pennsylvania Patient Safety Authority, January 12, 2021
    • It’s Not All About the Medicine: The New Scrutiny on Your EMR Documentation, presented at a virtual meeting of the Luzerne/Lackawanna Medical Society, November 18, 2020
    • The Return of Jury Trials: The Current State of Jury Trials in the Age of COVID-19, national teleconference for American Legal Connections (ALC), November 12, 2020
    • Learn From Those Who Know: Jury Trial Tactics During the COVID-19 Pandemic, DRI National Remote CLE, September 15, 2000
    • Lessons and Observations Made From a Socially-Distanced Jury Trial During the COVID-19 Pandemic, Inaugural PDI Remote CLE, September 10, 2020
    • Lessons Learned in with EMR Discovery, Hospital Insurance Federation (HIF), September 9, 2020
    • Managing EMR and Audit Trail Discovery, LAMMICO Defense Panel Meeting, August 20, 2020
    • Preparing A Claim for Trial: How Recent Issues, Decisions and Trends Are Impacting Litigation Outcomes, client webinar, June 4, 2020
    • “Warning Fatigue” Now a Matter of Criminal Liability: The Radonda Vaught Story, Pennsylvania Patient Safety Authority Webinar, May 24, 2020
    • Telehealth and Documentation in the Time of COVID-19: Information and Best Practices to Protect Patients and Clinicians webinar, May 14, 2020 
    • "Say 'Goodbye' to Medical Negligence Cases as We Know Them," The Legal Intelligencer, September 5, 2024 
    • "Litigation Landscape: Your GPS for Avoiding Legal Action," In Session with Allied World, Winter 2023
    • "Sanctions Against Health System Demonstrate That It's Time to Get Serious About Audit Trail Discovery," Journal of Healthcare Risk Management, August 18, 2022
    • "Evolution of the EMR: The Integration of AI in Medicine," The Legal Intelligencer, March 28, 2022
    • "Artificial Intelligence in Medicine Creates Real Risk Management and Litigation Issues," Journal of Healthcare Risk Management, September 2020
    • "A Civil Jury Trial During the Pandemic: Observations From Those Who Know," The Legal Intelligencer, August 7, 2020
    • "Report From the Trenches: Defending Patient Falls in Acute Care Settings," Becker's Hospital Review, August 28, 2018
    • "Negligent Advice of a Class III Medical Device Sales Rep," The Legal Intelligencer, Medical Malpractice Supplement, April 11, 2017
    • "A Pandora’s Box: The EMR’s Audit Trail," Counterpoint, newsletter of the Pennsylvania Defense Institute, February 2017
    • "It Ain’t Over ‘Til It’s Over: Judge Wettick Affirms Practice of Limiting Deposition Opinions of Defendant Physicians," Defense Digest, Vol. 22, No. 4, December 2016
    • "Wake Me Up!! I've Had Enough!! Litigation Nightmares With the Electronic Medical Record," The Risk Management Quarterly, newsletter of the Association for Healthcare Risk Management of New York, Inc. (AHRMNY)
    • "EMR's and Litigation: Issues Decided and What's Next?" The Legal Intelligencer, Medical Malpractice Supplement (page 5), April 12, 2016
    • Electronic Medical Records and Litigation, published by Thomson Reuters Legal, September 2014
    • "OMG?! The Impact of Social Media on the Tripartite Relationship," Co-Author, Litigation Management Magazine, Spring 2013
    • "What's It Worth? Best Practices in Defending Economic Damages in the Catastrophic Accident," Co-Author, Litigation Management Magazine, Fall 2012
    • "Reducing Medical Malpractice E-Discovery Issues and Costs," The Legal Intelligencer, February 14, 2012
    • "A View From the Trenches: Discovery Issues With Electronic Medical Records," Risk Rx, Special Edition on the Electronic Health Record, University of Florida, Vol. 8, No. 1 January-March, 2011; and Florida Hospital Association's Risk Review, August 23, 2011

Results

Defense Verdict Secured in a Contentious Long-Term Care Case

We received a defense verdict in a contentious long-term care case that included a unique spoliation issue, allegations of cover-up regarding the cause of death and a “no show” plaintiff. A longtime nursing home resident, who was suffering from “end-stage dementia,” died nine days after suffering head trauma following a fall. The plaintiff was the resident’s son who was not his mother’s guardian. The plaintiff contacted a lawyer who delivered the body across Pennsylvania to a forensic pathologist for a private autopsy. No notice was provided to the nursing home administration of the impending autopsy, despite the fact that the lawyer had sued the long-term facility several times in the past. The corpse was cremated shortly after the autopsy without an opportunity for the defense to examine the body. The defense did not learn about the private autopsy until years later, when the report was provided in discovery. A motion for sanctions for spoliation was filed by the defense, which was followed by depositions of the funeral home staff and a hearing involving the forensic pathologist and the attending physician. Although the spoliation motion was denied, the court held that the defense could question the forensic pathologist on the cremation, destroyed specimens and failure to produce the autopsy photographs at trial. On the eve of trial, the judge proctored an agreement between the parties to arbitrate the case “on expert reports only.” At arbitration, plaintiff’s counsel continued to pursue a conspiracy theory about “the true cause of death” along with standard negligence criticisms about fall prevention. The plaintiff was cross-examined on a prior crimen falsi conviction and an Orphans’ Court petition initiated by the local Area Agency on Aging, wherein the deceased resident complained that she was afraid of her son, which was relevant to his “loss of society and companionship” claim. Not surprisingly, the plaintiff denied every allegation of the Orphans’ Court petition, which detracted his appearance and credibility. 

Partial Summary Judgment on Behalf of a Nursing Home and its Corporate Defendants

In the complaint and throughout discovery, the plaintiff raised claims of overarching neglect in addition to a fall that occurred during physical therapy. The plaintiff alleged negligence, corporate negligence, and punitive damages premised upon allegations of understaffing, Department of Health violations and putting profits over patient care. The plaintiff sought to hold not only the nursing home, but also its management company and a holdings company, liable for such claims. The defense sought partial summary judgment and asked the court to limit the plaintiff’s claims to the fall only and argued that neither the record evidence nor the plaintiff’s expert reports supported the all-encompassing claims of neglect. The court agreed and narrowed the claims, thereby significantly hampering the plaintiff’s case. The court limited the claims to proceed at trial to the fall only. The court also dismissed punitive damages and dismissed the holdings company defendant outright.

Thought Leadership

Say ‘Goodbye’ to Medical Negligence Cases as We Know Them

September 5, 2024

For claims that do arise in the new era of AI use, we can anticipate they will be more complex, cost more to litigate and impact a larger class of patients.  

Defense Digest

On the Pulse…Marshall Dennehey’s National EMR and Audit Trail Practice Group Is Ready to Assist with Health Care Technology Litigation Issues

September 1, 2024

Several years ago, Marshall Dennehey recognized the plaintiff bar’s increased interest in pursuing two types of medical negligence cases: one on the medicine and the other on the electronic medical record (EMR). In response, it became one of the first, if not the first, defense firms to devote a practice group to assisting health care clients and other counsel with EMR and audit trail preservation, production, expert, and discovery issues. With the widespread integration of AI into health care, it is readily apparent that medical malpractice cases will become even more complex and expensive to litigate and will involve third-party technology vendors as parties. We can provide efficient and sound advice in this regard, in addition to the services we already provide. Our specialized and experienced practice group can assist health care systems and their counsel in many ways from discovery through trial. Our group routinely assists with formulating responses to novel discovery requests. In addition, we involve third-party electronic medical record vendors in the litigation when their assistance is necessary in discovery, whether it be to explain a production issue or include them in an ongoing discovery dispute. Along those lines, our group has had success compelling plaintiffs’ early disclosure of their EMR and audit trail experts for purposes of challenging their qualifications and representations to the court and counsel.  Deposition preparation is another area where this practice group provides focused assistance. We can help to correlate a provider’s involvement in the documentation in comparison to the audit trail, as well as provide support with respect to a corporate designee’s deposition relating to the preservation and production of the EMR. As the chart becomes more complex, witnesses need to be adequately prepared not only on the medicine, but on the EMR and AI as well. Advice on the retention of the most qualified, effective, and experienced experts is also a frequently provided service of the group. As chair of this practice subgroup, I have established a working relationship with the American Medical Informatics Association (AMIA) and its leadership on the provision of qualified expert services in the field of clinical informatics in health care litigation. Far too often, courts and counsel are relying on “junk science” from persons who claim to be EMR and audit trail experts, but who have sketchy and limited experience. By retaining appropriately trained clinical informatics (whom I refer to as “chart physicians”) to assist in their cases, health care systems can get a better handle on record production, reduce litigation expenses, and diminish discovery motion practice through the objective and qualified advice of a true expert on EMR-related issues.  On-site inspections and interactions with the EMR during discovery by plaintiff’s counsel is also becoming more of a regular request and is expected to occur more frequently. Our practice group will identify the appropriate records custodian to navigate the chart and prepare them in advance if they are asked questions during the inspection. We will also mandate acceptable inspection protocols well in advance of the event so it is conducted in a scientifically appropriate manner that is least intrusive and inconvenient to health systems.  Since the mid-2000s, we have monitored and reported legal precedent for new discovery and trial issues associated with the EMR, audit trail, and AI. Very few can boast a greater legal acumen than our group. As the EMR becomes more of a tool that augments medicine, rather than an information repository with the integration of AI, new legal thought and litigation strategies need to be considered in cases, particularly where a medical error may be due to the EMR or AI. We can assist with the strategic decision of whether and how to include EMR and AI vendors in your cases, and we can outline the legal benefits and pitfalls to be considered prior to doing so.  Medical negligence cases are not going to become less complex as AI is utilized within the EMR. To the contrary, they are going to become more complex, with novel factual and legal issues facing your counsel that have never been raised before. Going into these cases with the right guidance and experience is necessary. Please consider Marshall Dennehey’s EMR and Audit Trail Discovery Practice Group in the future when the necessity of specialized legal services are required. It is not a matter of if you will come across a complex EMR or AI issue, it is just a matter of when. Let us help you or your counsel.    Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.