Thursday, April 11, 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 "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"   and   "More on the lengths a hospital will go through to protect their EHR from discovery", 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:

From the official publication of the Civil Procedure Rules Committee in the state [of PA], effective a decade ago:


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 Carolyn B. DiGiovanni of the lawfirm Marshall Dennehey Warner Coleman Goggin 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:

... 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.

The truth of the above claims was certified in writing to the local court:


"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)

This legal misconduct kept the case mired in procedure for several years, with no Discovery conducted (except the defense helping themselves to my mother's medical records):

Legal misconduct: Behavior by an attorney that conflicts with established rules of professional conduct and is punishable by disciplinary measures..

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:  http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf .

One of the defense attorneys in that case was the selfsame Carolyn B. DiGiovanni  (then at law firm White & Williams LLP according to the Lexis-Nexis transcript), now acting as principal counsel in the 2010 case Silverstein vs. Abington Memorial Hospital:


Stroud v. AMH, Aug. 2008.  A familiar lawyer name.  Click to enlarge.


In Stroud in Aug. 2008 the U.S. District Court of Eastern PA concluded:

... 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 Rule 1042.3(a)(2) 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 1042.9 - 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.


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 PA Rules of Professional Conduct for attorneys:

PA Rule 3.3. Candor Toward the Tribunal.

 (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.


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 at this link.  The judge seemed somewhat angry:

... 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, Joseph A. Smyth, Jr.

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 Marshall Dennehey Warner Coleman Goggin needs to provide better CLE instruction on the PA and ABA Rules of Professional Conduct.

-- SS

April 11, 2013 addendum:

Health Leaders Media
April 5, 2013
HIT Errors 'Tip of the Iceberg,' Says ECRI 

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" here - 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.

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:


(Click to enlarge)

The frivolous filings (including several that were hundreds of pages long) and legal misconduct likely cost insurer Cassatt RRG 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

4 comments:

Anonymous said...

"Seriously look"? Trying to think of a phrase that is bigger than seriously..... Also trying to think of a phrase bigger than "about time".

Dammit. What is this world coming to? I am sure this is only the beginning of these kinds of tactics. If we could just have half the resources$$ that these carps (lawyers) spent trying to cover up, shade, spin and twist the truth to protect the suits....we could possibly provide enough preventative care to make a significant dent in one of the many diseases out there that suck the $$ out of healthcare . Put the focus back on the patient.

Anonymous said...

The HIT problems are formidable. The magnitude of the dangers from HIT nationally are immense. The faith based notion that HIT improves outcomes, reduces costs, and improves safety is heresy.

It is a national disgrace that the US Government has been co-opted by theHIT venors and their entourage of consultants, academics, and lobbyists, most of whom are HIMSS$$.

Anonymous said...

Cassatt RRG certainly doen't care, their executives don't care about other people money (unless it shrinks the part of the OPM that goes to their personal bank accounts)

InformaticsMD said...

Anonymous April 16, 2013 at 10:02:00 PM EDT said...

Cassatt RRG certainly doen't care

I do not know if they care or not. However I do believe their leaders have a fiduciary responsibility for oversight of services provided and billing submitted.

-- SS