healthy4u: Stroud v. Abington Memorial Hospital

SILVERSTEIN v. ABINGTON MEMORIAL HOSPITAL: MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT: Do computers have more rights than patients?

Herein is an issue of potential <a href="http://en.wikipedia.org/wiki/Internet_censorship">Internet censorship</a> and/or attempted <a href="http://en.wikipedia.org/wiki/Prior_restraint">prior restraint</a> of the rights of a citizen to express him/herself freely: At my post "<a href="http://hcrenewal.blogspot.com/2013/04/hospital-defense-maliciousness-aided.html">Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal</a>" I wrote about how a defense attorney in a case I unfortunately am substitute plaintiff in, that involving EHRs and the injury and the death of my mother, violated the requirement under the Code of Conduct of lawyers to exhibit candor before the tribunal, and perhaps 18 Pa.C.S. §4904 relating to unsworn falsification to authorities as well. As also mentioned, the lawfirm was displeased, but did not respond to my offer to consider amending any factually erroneous assertions at that post. Now here is their response: <table border="1" cellspacing="0" class="ChamaeleonGrid" rules="all"><tbody><tr class="AlternatingGridItem"><td>4/19/2013</td><td>Motion</td><td>BY ABINGTON MEMORIAL HOSPITAL MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT WITH MEMORANDUM OF LAW WITH SERVICE ON 04/19/2013</td></tr></tbody></table> The Motion text is <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Silverstein%20-%20Def%27s%20Motion%20to%20Prohibit%20Commentary%20about%20this%20Litigation%20%2800262678%29.pdf">here</a> in PDF (it is a public document available to anyone on the Montgomery County, PA Prothonotary website). The court has yet to rule on this new motion and Substitute Plaintiff's (me) replies. I will, of course, abide by the Court's decision. First: I note that I have been writing about issues of court process, not the substance of the case's actual issues.   I think citizens have a right to know about process in their courtrooms.  I am also Joe Public, exercising my rights to freedom of expression; I am not an attorney breaking some rule of case publicity.  I am not even the suit's initiator.  What rule(s) am I breaking, exactly, I'd like to know from the Defense. Further, in my opinion, considering that multiple authorities including the Institute of Medicine of the National Academies (<a href="http://hcrenewal.blogspot.com/2011/11/iom-report-on-health-it-safety-nix-fda.html">link</a>), FDA (<a href="http://hcrenewal.blogspot.com/2010/08/smoking-gun-internal-fda-memorandum-of.html">link</a>), Joint Commission (<a href="http://hcrenewal.blogspot.com/2008/12/joint-commission-sentinel-events-alert.html">link</a>), ECRI Institute (<a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">link</a>), National Institute of Standards and Technology (<a href="http://hcrenewal.blogspot.com/2011/10/nist-on-ehr-mission-hostile-user.html">link</a>), AHRQ-Agency for Healthcare Research and Quality at HHS itself (<a href="http://healthit.ahrq.gov/HealthITHazardManagerFinalReport">link</a>) and others have written about risks of health IT to patients and the need for far more study and data on the issue, in my view there is a compelling public interest in being informed about the progress of this lawsuit. We have not reached the day yet, I hope, when computers have more rights than patients. I note that if the involved lawfirm, Marshall Dennehey Warner Coleman Goggin, would stick to the Rules of Conduct for attorneys, it would seem they have nothing to fear. I note the remarkable statement about "unjustified and malicious personal attacks against Moving Defendant and defense counsel", i.e., pointing out exactly what they did.  Namely, fail to provide the required Candor towards the Tribunal regarding the undisclosed 2008 Stroud v. AMH decision on COM's, known to them (same hospital, same counsel) at the time multiple, frivolous contrary claims about COM's to harm my mother's case were made to the courts from 2010 to just recently in 2013.  In fact, that statement itself may be an example of legal misconduct - rendering false charges and certifying them in writing to a court as true.  I note that I didn't write the <a href="http://www.pacode.com/secure/data/204/chapter81/s81.4.html">Rules of Professional Conduct for attorneys</a>; attorneys did, including Rule 3.3: "Candor before the Tribunal" whose obvious violation and my pointing it out is certainly not an "unjustified and malicious personal attack." As far as "fair trials" go - their stated concern in this latest filing - the defense should have thought about that before breaking the aforementioned Rule of Professional Conduct, causing numerous delays.  (I wonder how many med mal cases with proper paperwork are stalled more than 2 years before Discovery even begins - the case was filed 7/16/2010.) It seems to me that my mother deserved to be alive at the time of her fair trial ("<a href="http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied">Justice delayed is justice denied</a>.")  I would certainly like to know if the Defense thinks otherwise. -- SS Apr. 19, 2013 Addendum: As noted at Wikipedia regarding what appears to be a <a href="http://en.wikipedia.org/wiki/Prior_restraint">Motion for Prior Restraint</a>: <blockquote class="tr_bq">Prior restraint is often considered a particularly oppressive form of <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as actions for <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Libel" title="Libel">libel</a> or <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander_and_libel#Criminal_libel" title="Slander and libel">criminal libel</a>, <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander" title="Slander">slander</a>, <a href="http://en.wikipedia.org/wiki/Defamation" title="Defamation">defamation</a>, and <a href="http://en.wikipedia.org/wiki/Contempt_of_court" title="Contempt of court">contempt of court</a>) implement criminal or civil sanctions only after the offending material has been published. While such sanctions might lead to a <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Chilling_effect_%28term%29" title="Chilling effect (term)">chilling effect</a>, legal commentators argue that at least such actions do not directly impoverish the <a href="http://en.wikipedia.org/wiki/Marketplace_of_ideas" title="Marketplace of ideas">marketplace of ideas</a>. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The <a class="mw-redirect" href="http://en.wikipedia.org/wiki/United_States_Supreme_Court" title="United States Supreme Court">United States Supreme Court</a> expressed this view in <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Nebraska_Press_Assn._v._Stuart" title="Nebraska Press Assn. v. Stuart">Nebraska Press Assn. v. Stuart</a> by noting:</blockquote> <blockquote class="tr_bq"><blockquote class="templatequote"><div class="Bug6200">The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.</div></blockquote><blockquote class="templatequote"><div class="Bug6200">A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time.</div></blockquote></blockquote> <blockquote class="tr_bq">Also, most of the early struggles for <a href="http://en.wikipedia.org/wiki/Freedom_of_the_press" title="Freedom of the press">freedom of the press</a> were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.</blockquote> -- SS

SILVERSTEIN v. ABINGTON MEMORIAL HOSPITAL: MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT: Do computers have more rights than patients?

Herein is an issue of potential Internet censorship and/or attempted prior restraint of the rights of a citizen to express him/herself freely:At my post "Hospital defense maliciousness, aided and abe…

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19 Apr 2013

Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal"

At Healthcare Renewal we've written of hospitals' deviations from the core mission of compassionate, ethical and safe patient care, towards profiteering at patient's and the community's expense. What we haven't written about is maliciousness. At my Feb. 2013 posts about my late mother's (now my) lawsuit regarding injury and death that involved EHR problems, namely "<a href="http://hcrenewal.blogspot.com/2013/02/the-lengths-hospital-will-go-to-in.html" target="_blank">The lengths a hospital will go to in order to protect their EHR - Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Objections</a>"   and   "<a href="http://hcrenewal.blogspot.com/2013/02/more-on-lengths-hospital-will-go.html" target="_blank">More on the lengths a hospital will go through to protect their EHR from discovery</a>", I'd opined that the defense's repeated position that individual Certificates of Merit [COMs] were required naming or otherwise "identifying by specialty" every single licensed professional for whom the parent hospital was being held vicariously liable was contradicted by state law and procedure. I'd posted this as an example: <blockquote class="tr_bq">From the official publication of the Civil Procedure Rules Committee in the state [of PA], effective a decade ago: <div style="text-align: center;"><img border="0" height="310" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg0U6lMWpjedAb5GxPK8VKdmEN5cCoppS1TRPf228O7KvGm60pqw9uTO7kDyM7PFH3T-3hntaHlXp4PBRHB2SVcrtj3I_KWJNd1pnWyqorZ1PymkMNcwjVXxCy3bofu1Gstkqu0aPlRju5H/s1600/COM_rule.jpg" width="320" /></div> </blockquote>Such a single COM for vicarious liability had been timely filed at the outset of the case in 2010, as well as a COM for direct hospital liability. Yet the defense persisted in their multiple-COM position, filing a Motion for Reconsideration of a denial of their COM position, an "emergency" petition for review with Superior Court of PA not certified for appeal by the local judge that was also denied (not even heard), a Motion for Reconsideration of the denial of the initial Motion for Reconsideration, "protective orders" for witnesses to prevent their being deposed, and even a complaint that the judge of record had no authority to let the first Motion for Reconsideration expire on its own, which they do if not responded to in 30 days.  This all ate up time. Except they "forgot" to tell the judge that their COM argument had been thrown out several years prior by the U.S. District Court in these parts - same defendant, same defense attorney.  (More on this lack of mandatory Candor Before the Tribunal below.) Instead of candor, defense attorney <a href="http://www.marshalldennehey.com/attorneys/carolyn-b-digiovanni" target="_blank">Carolyn B. DiGiovanni</a> of the lawfirm <a class="l" href="http://www.marshalldennehey.com/">Marshall Dennehey Warner Coleman Goggin</a> filed motions - like this one of 12/6/2010 below - seeking to have the court strike the vicarious liability COM as "inadequate under the rules" and get the organization off the hook for vicarious liability for its agents/employees, that I cite directly.  Emphases mine: <blockquote class="tr_bq">... 16. In the instant [current, i.e., Silverstein v. AMH - ed.] case, Plaintiff chose to file only one Certificate of Merit on her vicarious liability claim against Abington Memorial Hospital, which is insufficient under the Rules. [Well, no, actually; it was precisely what the rules called for.  See below - ed.] 17. Despite the fact that Rule 1042.3(a)(2) specifically addresses those situations involving vicarious liability, Plaintiff has failed to comply with the mandates of Rule 1042.3(a)(2) that a separate Certificate of Merit must be filed pursuant to (a)(1) as to the other licensed professionals for whom the vicarious Defendant is responsible. 18. In the present case, although Plaintiff filed a Certificate of Merit, Plaintiff did not file a timely Certificate of Merit which supports her direct claims of liability against the agents, employees and/or subcontractors for whom she claims Defendant, Abington Memorial Hospital, is vicariously liable, in accordance with the Pennsylvania Rules of Civil Procedure. 19. As Plaintiff has failed to timely produce [multiple - ed.] Certificates of Merit which satisfy the mandates of Pa.R.C.P. 1042.3 within sixty (60) days of the filing of the Complaint, entry of partial judgment of non pros [non-prosecution - ed.] on Plaintiffs claim for vicarious liability is warranted as a matter of law. 20. Accordingly, Defendant, Abington Memorial Hospital, files the instant Motion seeking to strike the Certificate of Merit and for the entry of partial judgment of non pros on Plaintiffs claim for vicarious liability pursuant to Pa. R Civ. P. 1042.7.</blockquote> The truth of the above claims was certified in writing to the local court: <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq46clni_Csv7jW5Rb3a9xVy45OgA5lqmEVlB8RfeWiiMF7Tj7Bxs2SMNmcQq9lnjiTiOXiMU-TyP92eoft22wWqqK_PcK9WeDhpc-OjrlbmHE_igM47n0XuB-z81Uek7KppvdVGBnYoXK/s1600/sworn.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq46clni_Csv7jW5Rb3a9xVy45OgA5lqmEVlB8RfeWiiMF7Tj7Bxs2SMNmcQq9lnjiTiOXiMU-TyP92eoft22wWqqK_PcK9WeDhpc-OjrlbmHE_igM47n0XuB-z81Uek7KppvdVGBnYoXK/s400/sworn.jpg" width="327" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">"I, Carolyn B. DiGiovanni, Esquire, Attorney for Defendant, Abington Memorial Hospital, verifies that the facts set forth in the Motion or Defendant, Abington Memorial Hospital to Strike Certificate of Merit and for Entry of Partial Judgment of Non Pros Pursuant to Rule 1042.6 are true to the best of her knowledge, information and belief. If the above statements are not true, the deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities."  (Click to enlarge)</td></tr></tbody></table> This <a href="http://legal-dictionary.thefreedictionary.com/Attorney+Misconduct">legal misconduct</a> kept the case mired in procedure for several years, with no Discovery conducted (except the defense helping themselves to my mother's medical records): <blockquote class="tr_bq">Legal misconduct: Behavior by an attorney that conflicts with established rules of professional conduct and is punishable by disciplinary measures.. </blockquote> This nonsense is finally over. The judge has explicitly denied any further Motions for Reconsideration of the Certificate of Merit issue, and  has granted a Motion to Compel both Discovery (including all EHR metadata) in 30 days, and depositions within 45 days. (If we discover that EHR problems were causing other injuries or deaths, it may be time for a visit to the DA's Office of this jurisdiction.) Here's what I believe ended this matter, a revelation showing what I believe is hospital defense maliciousness regarding the rights of the injured and deceased (e.g., my mother, who died in June 2011, might have been able to participate in her own trial if these delays had not occurred): My mother's (now my) attorney recently discovered  a 2006 case in U.S. District Court of Eastern Pennsylvania, Stroud vs. Abington Memorial Hospital, where the same defense for the same hospital tried exactly the same COM attack tactic, and were denied.   The Stroud case was presented to the Silverstein court just a few weeks ago. The Stroud decision of August 2008 is at this link:  <a href="http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf">http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf </a>. One of the defense attorneys in that case was the selfsame Carolyn B. DiGiovanni  (then at law firm <a href="http://www.whiteandwilliams.com/" target="_blank">White & Williams LLP</a> according to the Lexis-Nexis transcript), now acting as principal counsel in the 2010 case Silverstein vs. Abington Memorial Hospital: <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhK2b8_IFBea2gzMXdUMcvUvXjcI0gkLiU30MAcy1Z9D53WmALLG_xsSKktcQzUgKhn38pZijQl5gDdmBAYGMVSRDfleFWzqKYY4SHNJnDLXrcOHGCedmDE_QK98Z6YchLWJeW1aXnPOQNb/s1600/lexisnexis.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhK2b8_IFBea2gzMXdUMcvUvXjcI0gkLiU30MAcy1Z9D53WmALLG_xsSKktcQzUgKhn38pZijQl5gDdmBAYGMVSRDfleFWzqKYY4SHNJnDLXrcOHGCedmDE_QK98Z6YchLWJeW1aXnPOQNb/s400/lexisnexis.jpg" width="336" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Stroud v. AMH, Aug. 2008.  A familiar lawyer name.  Click to enlarge.</td></tr></tbody></table> In Stroud in Aug. 2008 the U.S. District Court of Eastern PA concluded: <blockquote class="tr_bq">... II. Motion as to Vicarious Liability Claims Based on Other Actors’ Conduct Hospital also seeks judgment in its favor as to any vicarious liability claims of negligence against the Hospital that Plaintiff might bring based on the actions of any Hospital personnel other than Defendant McAllister. Hospital takes the position that Plaintiff did not timely file any certificates of merit (“COM”) to support such claims except as to Dr. McAllister and, therefore, that any vicarious liability claims for the acts of any nurse, physician (other than Dr. McAllister), or other personnel should be dismissed.  After careful review of the Pennsylvania certificate of merit rule, however, we conclude that Plaintiff is in compliance. ... We do not believe more [than one COM -ed.] is required of Plaintiff. The parties put forth differing interpretations of the Rule and its official “Note.” We read the first sentence of the “Note” following <a href="http://www.pacode.com/secure/data/231/chapter1000/s1042.3.html" target="_blank">Rule 1042.3(a)(2)</a> to reiterate that a COM (the contents of which is described in subsection (a)(1)) is required as to a particular defendant even when the plaintiff is bringing a claim of vicarious liability as described in subsection (a)(2) against that defendant. We do not read it to require that a COM be filed as to a non-party [i.e., parties to whom the hospital is charged with vicarious liability for their actions such as employees and contractors - ed.]. We observe that the Note clearly states that the expert statement underlying the COM “is not required to identify the specific licensed professionals who deviated from an acceptable standard of care.” [ Pa. R. Civ. P. 1042(a)(2) Note.]  It would be incongruous for a plaintiff to be relieved of having his expert detail specific negligent individuals in his or her supporting written statement yet be required to simultaneously file separate COMs as to those individuals.  While the Hospital directs our attention to the Note that accompanied a prior version of this rule as authority for its interpretation of the intention of the rule, we find it more persuasive that the Pennsylvania Supreme Court, by order entered on February 11, 2005, specifically re-wrote the Note to subsection (a)(2) — the only apparent change to this rule at that time. We believe that the Court’s decision to delete a provision that explicitly stated that COMs “must be filed as to the other licensed professionals whether or not they are named defendants in the action” (emphasis added) must be given effect. We conclude that where the conduct of other licensed professionals who are not named as defendants in the action is the basis for a claim of vicarious liability against a named defendant [i.e., hospital - ed.] (for whom a COM is filed), no further COM [beyond one - ed.] is required. This interpretation is bolstered by the fact that the Form COM provided in Pa. R. Civ. P. 1042.8 [now <a href="http://www.pacode.com/secure/data/231/chapter1000/s1042.9.html">1042.9</a> - ed.] contemplates the certificate naming a “Defendant” (in the blank line following the title “Certificate of Merit as to”). We also note that, in the case discussed by Plaintiff in his opposition, Yee v. Roberts, 878 A.2d 906 (Pa. Super. Ct. 2005), the Superior Court reiterated that a timely-filed COM was necessary as to a claim of vicarious liability against a dental partnership but did not suggest that an additional COM would have been necessary as to the non-party employee (identified by her first name in the complaint) whose conduct was alleged to be negligent. </blockquote> In other words, the Certificate of Merit argument proffered by the hospital and its defense in 2010-2013, including the same Carolyn B. DiGiovanni who'd heard with her own ears and seen with her own eyes the same contention denied in 2008 (a contention that helped keep Silverstein vs. AMH in the incipient pleading stages with no Discovery for years) was entirely frivolous. Remarkably, the existence of the 2008 Stroud decision as above was never divulged to the current local PA court, in what appears to me to be a violation of the intent if not the letter of the ABA and <a href="http://www.pacode.com/secure/data/204/chapter81/s81.4.html" target="_blank">PA Rules of Professional Conduct for attorneys</a>: <blockquote class="tr_bq"><h4>PA Rule 3.3. Candor Toward the Tribunal.</h4> (a)  A lawyer shall not knowingly:    (1)  make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;    (2)  fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or     (3)  offer evidence that the lawyer knows to be false. </blockquote>Not only was the Aug. 2008 Stroud case decision on COMs "known to the lawyer", it was a case in which they had been directly and professionally involved. Obviously, mentioning the 2008 Stroud decision at the outset would likely have been entirely destructive - right from day 1 - of any claim that multiple COM's on vicarious liability were needed in 2010. In the face of the aforementioned 2008 Stroud v. AMH decision, this type of filing and the deliberate lack of Candor Toward the Tribunal was malicious, in my opinion, to delay proceedings - quite disrespectful of my injured and now deceased mother and to my own rights as substitute plaintiff. The judge's latest decision ordering an end to this court procedural misuse is <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Silverstein%20-%20Denying%20Def%27s%20Motion%20for%20Reconsideration%20of%20Denial%20of%20Earlier%20Motion%20(00261356).PDF" target="_blank">at this link</a>.  The judge seemed somewhat angry: <blockquote class="tr_bq">... When the Superior Court of Pennsylvania denied Defendant's petition for review, Silverstein v. Abington Mem. Hosp.,No. 99 EDM 2012, as we explained in the January 13 order, we considered the [Certificate of Merit] matter concluded. Specifically, our order found that the alternative request for reconsideration had been "deemed denied" or "expired" as well, citing Stephens v. Messíck,7gg A.2d793, 801 (Pa. Super. Ct.2002) ("A motion for reconsideration appeals to the court's discretion . . . . Normally, motions for reconsideration expire on their own . . . .").  Undeterred, Defendant, on February 1,2013, filed a motion for reconsideration of our denial of the motion for reconsideration of our denial of the "Motion of Defendant, Abington Memorial Hospital, to Strike Certificate of Merit and for Entry of Partial Judgment of Non Pros [got that? - ed.]  pursuant to pa.R.C.P . 1042.7,and sent us a copy of the second motion for reconsideration.... We now, however, in the hope of putting the matter to rest, order as follows: 1) Defendant's motion for reconsideration of our denial of Defendant's earlier motion for reconsideration is deníed. We pause to comment that the theory espoused in Defendant's "reply" to plaintiff's answer in opposition to the second motion for reconsideration-that we declined to entertain Defendant's first motion for reconsideration based on the erroneous belief we had no jurisdiction to do so - is incorrect .  [This lawyer was trying to tell a judge what he could and could not do - ed.] ... This Court, at least this jurist, will entertain no further requests for reconsideration of the subject matter of these motions and orders, barring contrary direction from a higher authority,  and we encourage the parties not to file any such further requests. [The reconsideration 'requests' came solely from the defense, I add - ed.] By the Court, <a href="http://judgepedia.org/index.php/Joseph_A._Smyth,_Jr.">Joseph A. Smyth, Jr.</a> </blockquote> Thank God, because I was fully expecting, barbershop-mirror style, a "Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Motion for Reconsideration." Sadly, this is the hospital where I'd completed my residency in 1987 with solid recommendations - including for a medical informatics postdoc that helped give me my current expertise - from its current Chief Medical Officer, then a residency program director. This form of hospital defense abuse - frivolously and with malice trying to stall or evade court process guaranteed to citizens in the Constitution, especially when they are frail and may soon die - must not be permitted. Finally, I observe that perhaps <a class="l" href="http://www.marshalldennehey.com/">Marshall Dennehey Warner Coleman Goggin</a> needs to provide better CLE instruction on the PA and ABA Rules of Professional Conduct. -- SS April 11, 2013 addendum: <blockquote class="tr_bq">Health Leaders Media April 5, 2013 <a href="http://www.healthleadersmedia.com/print/TEC-290834/HIT-Errors-Tip-of-the-Iceberg-Says-ECRI" target="_blank">HIT Errors 'Tip of the Iceberg,' Says ECRI </a> Healthcare systems' transitions from paper records to electronic ones are causing harm and in so many serious ways, providers are only now beginning to understand the scope.  [I understood the scope years ago as reflected in my writings - ed.] Computer programs truncated dosage fields, leading to morphine-caused respiratory arrest; lab test and transplant surgery records didn't talk to each other, leading to organ rejection and patient death; and an electronic systems' misinterpretation of the time "midnight" meant an infant received antibiotics one dangerous day too late. These are among the 171 health information technology malfunctions and disconnects that caused or could have caused patient harm in a report to the ECRI Institute's Patient Safety Organization. Thirty-six participating hospitals [a small number indeed - ed.] reported the data under a special voluntary program conducted last year. Karen Zimmer, MD, medical director of the institute, says the reports of so many types of errors and harm got the staff's attention in part because the program captured so many serious errors within just a nine-week project last spring.  [Including 8 injures and 3 possible deaths in just 9 weeks as I wrote at "Peering Underneath the Iceberg's Water Level: AMNews on the New ECRI Deep Dive Study of Health IT Events" <a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">here</a> - ed.] The volume of errors in the voluntary reports was she says, "an awareness raiser." "If we're seeing this much under a voluntary reporting program, we know this is just the tip of the iceberg; we know these events are very much underreported." ... ECRI is currently evaluating a similar, and much larger list of reports from many of the 800 hospitals that contract with ECRI's PSO services. </blockquote> It's about damn time someone looked at EHR-related mishaps seriously. -- SS April 13, 2013  Addendum: This hospital is apparently insured via a consortium of 8 regional nonprofit hospitals: <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-h4Ohnz-YG8f1Rw2VKdgQ8yFbgsCtux3TKF7a9xKlqmVup4VCvE_1INF7VQ1bH-fTxcbZrkyD5fYrM8yz9MqnRD9SnT8qlDMU0G2-JI7eYSmR1rKShbNR1QBOPaVRaJYGXOQyBmBACVTu/s1600/Amh_insurance.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="113" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-h4Ohnz-YG8f1Rw2VKdgQ8yFbgsCtux3TKF7a9xKlqmVup4VCvE_1INF7VQ1bH-fTxcbZrkyD5fYrM8yz9MqnRD9SnT8qlDMU0G2-JI7eYSmR1rKShbNR1QBOPaVRaJYGXOQyBmBACVTu/s400/Amh_insurance.jpg" width="400" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">(Click to enlarge)</td></tr></tbody></table><div class="separator" style="clear: both; text-align: center;"></div> The frivolous filings (including several that were hundreds of pages long) and legal misconduct likely cost insurer <a href="http://www.hoovers.com/company-information/cs/company-profile.Cassatt_Rrg_Holding_Company.cc00729a143fc7f3.html">Cassatt RRG</a> a small fortune, a disgrace for charitable organizations to have their funds wasted in this manner for defense lawyer enrichment.  I feel Cassatt needs to know about this, so I will inform them. -- SS April 18, 2013 Addendum: From my counsel on 4/16 I am informed the defense lawfirm is upset at this posting.  I have, being a reasonable author, offered through my counsel to consider revisions if defense would identify statements they believe non-factual, along with a basis of claims of non-factuality.  Nothing has been received in response. -- SS

Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal"

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11 Apr 2013

Stroud v. Abington Memorial Hospital: Is This Why Chart Alteration Might Be Appealing?

As I described in several recent posts on malpractice cases at University of Pittsburgh Medical Center (UPMC) including: <blockquote> "UPMC and the Sweet death that wasn't very sweet: How EMRs can detract from a clear narrative, and facilitate spoliation and obfuscation of evidence" <a style="font-weight: bold;" href="http://hcrenewal.blogspot.com/2011/09/sweet-death-that-wasnt-very-sweet-how_24.html">(link)</a>, </blockquote>and <blockquote>"Propofol and Other Drug Questions: Was Michael Jackson a UPMC Patient at the Same Time as Samuel Sweet?" (<a style="font-weight: bold;" href="http://hcrenewal.blogspot.com/2011/09/was-michael-jackson-upmc-patient-at.html">link</a>), </blockquote>... electronic medical records may offer certain advantages to someone who is going to try to alter medical records. No whiteout needed, no physical erasures, a difficult to interpret and/or made-hard-to-get audit trail, etc. Why, one might ask, would a hospital and/or its clinicians attempt such a maneuver, knowing the penalties are likely to be severe? Because the penalties might not be so severe after all. While I am not an attorney, this case I came across seems to be readable by those who understand plain English: ROBERT STROUD, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JAMES H. STROUD, DECEASED, PLAINTIFF, v. ABINGTON MEMORIAL HOSPITAL, ET AL., DEFENDANTS (<a style="font-weight: bold;" href="http://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20080417_0000511.EPA.htm/qx#D*fn2">link to memorandum opinion</a>). Here is a summary of what allegedly happened that led to the suit: <blockquote>IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ... 1. FACTUAL BACKGROUNDJames Stroud was admitted to Hospital for a total right knee replacement on October 25, 2004. (Doc. 45 at 11, ¶ 46.) Following surgery, he remained at Hospital under the medical care of various of the defendants and others. (Id. at 11-14, ¶¶ 47-68.) Plaintiff alleges that during that time, James Stroud complained of nausea and failed to have a bowel movement. (See, e.g., id. at 11, ¶¶ 50, 52.) Plaintiff further alleges that, while various of the defendants and others examined and treated James Stroud, they failed to adequately diagnose and treat his emergent medical condition, later found to be a bowel obstruction or ileus. (Id. at 11-14, ¶¶ 51-68.) Plaintiff specifically contends that Dr. Paul Crispen, a urology resident under the supervision of urologist Dr. Charles ordered an abdominal/pelvic CT scan to be performed on James Stroud on October 28, 2004 to investigate the cause of his lack of bowel movement. (Id. at 12, ¶ 58-59.) Robert Stroud avers that the CT scan revealed "marked dilation of the small and large bowel, representing either an obstruction or adynamic ileus," but that no action was taken in response to this finding of a potentially serious medical condition. (Id. at 14, ¶ 68-69.) Plaintiff attributes this inaction, at least in part, to the failure by the various treating medical professionals to communicate adequately concerning James Stroud's care and the failure by Hospital to have in place and enforce proper policies and procedures for interdepartmental communication. (See, e.g., id. at 19-21, ¶ 105(n), (q), (r), (aa)-(cc).) That same day that the scan was performed, October 28, 2004, James Stroud was discharged from Hospital to a rehabilitation center. (Id. at 14, ¶ 70.) The following day, October 29, 2004, he complained of abdominal pain and began vomiting. (Id. at 15, ¶ 73.) He was taken to Hospital's emergency room early that afternoon and was subsequently readmitted. (Id. at 15-16, ¶¶ 74-80.) He was examined and additional diagnostic testing, including an abdominal x-ray series, was ordered, completed, and interpreted later that evening. (Id. at 16-17, ¶¶ 81-95.) By about 11:20 p.m. he began vomiting, became unresponsive, and was unable to be revived. (Id. at 17, ¶¶ 96-98.) He was pronounced dead at 12:08 a.m. on October 30, 2004. (Id. at 17, ¶ 98.)</blockquote> There were allegations of record concealment and withholding and in finding this, the plaintiffs sought additional punitive damages. The court nonetheless decided (emphases mine): ... Plaintiff's request for punitive damages is premised on two interrelated theories: (1) that the defendants knew that James Stroud was suffering from a life threatening condition, yet failed to take any action in response to that knowledge (Doc. 45 at 59-61, ¶¶ 210-215, 222); and (2) that after the demise of James Stroud, the defendants took actions to cover up their prior negligence, including the deliberate concealment and withholding of relevant medical records (id. at 60-61, ¶¶ 216-221). Plaintiff's underlying substantive claims are, as we know, for negligence, survival, and wrongful death based on the defendants' allegedly negligent care for James Stroud. Plaintiff alleges no underlying claim concerning the defendants' alleged concealment of prior negligence. This case is thus closely analogous to the case decided by the Pennsylvania Superior Court in Gallagher [v. Temple University Hospital - ed.], which also concerned a medical malpractice action against a hospital. In Gallagher, the Superior Court held: [Appellants] asserted an independent claim for punitive damages premised upon the allegedly outrageous conduct of altering and withholding the medical records in an attempt to stymie Mr. Gallagher's guardians from successfully obtaining redress for his Injury by tampering with the discovery of the facts necessary for prosecution of his medical malpractice lawsuit. While this conduct is relevant to show after the fact awareness of negligence on the hospital's part, it does not, however, relate to the conduct alleged to have been negligent, which actually caused the injury. While the conduct surrounding the alleged withholding of certain records and the whiting out of portions of other records, if true, is undoubtedly reprehensible, none of these facts, however, relate to the malpractice being litigated. Nor do these facts assert a separate cause of action sounding in tort. 2005 WL 2649868 at *3. The Third Circuit has similarly held that a defendant's falsification of relevant records and lying at a deposition to conceal his wrongdoing, while reprehensible, is insufficient to establish the culpable mental state of recklessness necessary to impose punitive damages because it does not support the conclusion that the defendant consciously appreciated the risk of the harm he caused. See Burke, 904 F.2d at 183. In so finding, the court reasoned "that punitive damages are intended to deter risky behavior that causes harm; they are not a sanction for obstruction of justice." Id. (citation omitted). In the Stroud case the court decided and ordered that: <blockquote>... (3) Moving Defendants' [i.e., hospital and doctors - ed.] motion to dismiss Plaintiff's claim for punitive damages premised on the theory that Moving Defendants "covered up" their prior negligence is GRANTED and Plaintiff's punitive damages claim on this legal theory is DISMISSED WITH PREJUDICE. [That is, it cannot be raised again - ed.] </blockquote> One might wonder, then, what hospitals and clinicians have to lose, in a malpractice case they believe is likely to be lost on the merits, for records alteration or concealment that they think they might get away with. There is the Pennsylvania <a href="http://www.portal.state.pa.us/portal/server.pt/document/495911/hb1802_pdf" target="_blank">Medical Care Availability and Reduction of Error (MCARE) Act of 2002</a> (PDF, see Section 511, "Preservation and accuracy of medical records", pg. 18-19). However, how often is that act enforced, even if a separate complaint (which is non-judicial) about records alteration is made to the <a href="http://www.portal.state.pa.us/portal/server.pt/community/licensing/12483">PA Bureau of Professional and Occupational Affairs</a> (where large medical centers might have sympathetic friends) and to similar bodies in other states? The camouflage made possible by EMR's would only add to the temptation to try to alter the case outcome through "reprehensible" records alteration and withholding/stonewalling on the production of EMR screen shots, audit trails and other data. -- SS Sept. 30, 2011 addendum: The court's own use of the term "<a href="http://en.wikipedia.org/wiki/Obstruction_of_justice">obstruction of justice</a>" suggests another venue for addressing chart alterations besides civil court: <blockquote>The crime of obstruction of justice, in United States jurisdictions, refers to the crime of interfering with the work of police, investigators, regulatory agencies, prosecutors, or other (usually government) officials. </blockquote> Specifically, criminal court. Sept. 30, 2011 addendum #2: Apparently a memorandum opinion such as the above "Stroud v. Abington Hospital" does not create precedent (<a href="http://en.wikipedia.org/wiki/Memorandum_opinion">link</a>): <blockquote> A memorandum opinion or memorandum decision is a judicial opinion that does not create precedent, persuasive or mandatory in some jurisdictions. A memorandum is often brief and written only to announce judgment in a particular case. Depending on the kind of memorandum decision, citation of the opinion as case law may not be accepted.</blockquote> While there are likely other cases addressing the medical record alteration/withholding issue, to my legally ignorant mind [1], perhaps in addition to criminal charges, "outrageous conduct of altering and withholding the medical records" should be pursued vigorously by plaintiff's attorneys as a basis for punitive damages. This is especially true if the conduct resulted in or contributed to patient harm. Note: <div style="text-align: left;">[1] Perhaps "legal amateur" is a more accurate term in the same way I am a <a href="http://www.arrl.org/">radio amateur</a> or ham (albeit Extra Class) with some technical experience, but not a telecommunications professional who would/should run a mission-critical enterprise telecommunications project -- and in the same way that many in charge of health IT in hospitals are really <a href="http://hcrenewal.blogspot.com/2009/12/utter-arrogance-of-it-industry.html">health IT amateurs</a> with no significant formal training. </div> -- SS

Stroud v. Abington Memorial Hospital: Is This Why Chart Alteration Might Be Appealing?

As I described in several recent posts on malpractice cases at University of Pittsburgh Medical Center (UPMC) including:"UPMC and the Sweet death that wasn't very sweet: How EMRs can detract from a cl…

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29 Sep 2011

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