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Superior Court of Pennsylvania Ruling Allows Injured Patient to Pursue Medical Malpractice Claim

When faced with a serious operation in Pennsylvania, you want your doctor to perform to the best of her or his abilities.  In any procedure or examination, surgeons are expected to uphold the standards and practices of their profession.  When a doctor fails to provide this level of care, he or she may be held liable through a medical malpractice action.  A recent decision in the Superior Court of Pennsylvania, Fessenden v. Robert Parker Hospital, provides an example of what type of evidence is required in a medical malpractice personal injury action.  

In Fessenden, the patient underwent an esophagogastrectomy, which removes the lower portion of the esophagus and a portion of the stomach.  Soon after the surgery, the patient experienced occasional abdominal pain, which led to an emergency room visit.  A CAT scan revealed that a laprotomy sponge had been left in the patient’s abdomen.  Within a month, another surgery was performed where the sponge was removed and the abscess, or infection, was drained.  A portion of the patient’s gallbladder and the small bowel was also removed.  Another surgery was required to drain an abscess, and the patient stayed in the hospital for several days.

In Pennsylvania medical malpractice actions, state statute Pa.R.C.P. 1042.3(a) requires that either a licensed medical expert provide a written statement that affirms there was a reasonable probability that the care, skill, or knowledge exercised did not meet professional standards, that there was a deviation from an acceptable professional standard, or that expert testimony was not necessary to pursue the claim.  The patient filed the certificate of merit, choosing the third option, arguing that the fact-finder can infer from the circumstances of the injury that the harm suffered was due to the negligence of the defendant.  The hospital countered that the patient failed to show that the harm was caused by the retained sponge.  

The Superior Court reviewed the exception to the requirement that medical malpractice claims must be initially supported by expert testimony if the negligence was so apparent a lay juror could recognize it.  Three circumstances must apply:  1) that the event is something that could not possibly happen without negligence, 2) that other responsible causes were removed, and 3) that the negligence lay within the scope of the defendant’s duty to the plaintiff.  The court looked to prior Pennsylvania decisions that found the negligence to be the sort that lay jurors could determine.  

The hospital pointed to the second consideration of Pa.R.C.P. 1042.3(a), which requires other causes to be ruled out, and argued that the patient failed to rule out other causes of the abdominal pain.   The hospital focused on the patient’s other health problems.  The Superior Court declined to require that the plaintiff show the sponge was the proximate cause of the injury.  It was enough that there was no other way for a sponge to be left in the patient’s body other than the doctor’s negligence. The Court specifically cited two Pennsylvania decisions where a gauze pad and sponge were left, and in which no expert testimony was needed to determine negligence.  

The Scranton medical malpractice attorneys at Needle Law Firm have the personal injury experience you need to aggressively litigate your case.  For a free consultation today, contact our office at 570-344-1266.

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