As I wrote on August 11, 2013 at "Who Would Have Thought That The Most Severe Form of Attempted Internet Censorship Could Originate in a Community Hospital, Abington Memorial?" (http://hcrenewal.blogspot.com/2013/08/who-would-have-thought-comrades-that.html), a community hospital whose EHR-related error led to my mother's injury and death tried to censor my writing through a Motion for Prior Restraint in the local courts in Montgomery County, Pennsylvania:
... I would not have thought such an attempt at abridgement of fundamental American rights could originate in a local hospital, until this Motion by the defense in the EHR-related lawsuit initiated by my deceased mother in which I am now substitute plaintiff proved otherwise:
75 E 4/19/2013 Motion 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 No 9267260
The hospital was attempting to have the Court issue a Motion for Prior Restraint (http://en.wikipedia.org/wiki/Prior_restraint), including against my writings here in the Healthcare Renewal blog, in a civil matter.
Their motion for censorship was summarily rejected by the court, but...
I have always wondered why a hospital would go to such lengths, considering the jury selection process in any possible trial has a voir dire process in which potential jurors with knowledge of a case or other conflicts of interest are eliminated from jury service in that case.
voir dire - http://dictionary.law.com/Default.aspx?selected=2229
(vwahr [with a near-silent "r"] deer) n. from French "to see to speak," the questioning of prospective jurors by a judge and attorneys in court. Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (knowledge of the facts; acquaintanceship with parties, witnesses or attorneys; occupation which might lead to bias; prejudice against the death penalty; or previous experiences such as having been sued in a similar case).
I believe I may have found the answer.
As I wrote on Feb. 2, 2013 at "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" (http://hcrenewal.blogspot.com/2013/02/the-lengths-hospital-will-go-to-in.html), the object of the hospital's and defense team's wrath seemed to be my writing about the frivolous nature of their Certificate of Merit attacks, and later, their failure to mention to the judge their argument's earlier rejection by another PA court (in 2008, Stroud v. Abington Memorial Hospital).
The Stroud v. AMH Certificate of Merit decision of August 2008 is at this link: http://www.gpo.gov/fdsys/pkg/
Note that a Certificate of Merit is required in Pennsylvania for the initiation of a medical malpractice lawsuit, e.g., PA Code Rule 1042.3, http://www.pacode.com/secure/data/231/chapter1000/s1042.3.html. It specifies that an appropriate and non-involved professional agrees with the merits of the case. It is a simple paper form.
As I wrote at the aforementioned post:
... The(ir) major objection about the [Certificate of Merit] paperwork is, in essence, that a "Certificate of Merit" (a certification of case merit by a qualified medical professional) needed to be filed not just for Defendant (the hospital) but for each and every employee/agent for whom the Defendant is vicariously liable under the doctrine of Respondeat Superior...
... A major problem with this claim is that the law simply says otherwise. Also, Certificates of Merit have, under the identification field where the sued party's name is penned in, the label "defendant" ... not "defendant, employees, agents, their uncles and aunts, and their little dogs too for whom defendant is vicariously liable." Not to mention, among other issues, that such misconceptions are specifically put to rest by the actual Civil Procedural Rules Committee rules as published by the state's court administrative body:
"The [certificate of merit] rule requires the filing of only a single certificate of merit as to a claim against a defendant that is based on the activities of licensed professionals who are not named in the action."
The judge in Montgomery County, PA agreed, and threw out the hospital's Certificate of Merit attacks as well as their motion for reconsideration of his denial (and their motion for reconsideration of his rejection of their motion for reconsideration of his denial, if you can follow that, as well).
So why try to censor my writing on this blog about the matter, including that nearly the same attacks had been thrown out repeatedly, and that the defense team in Silverstein v. AMH did not mention the adverse ruling in Stroud as 'opposing authority' in their many filings in my locale, Montgomery County, in my mother's case?
Candor before the tribunal is codified in the American Bar Association rules for ethical conduct at http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html, and PA has a similar rule:
... (a) A lawyer shall not knowingly:(1) make a false statement of 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 ...
Perhaps this is the reason...
So the hospital could try the argument/attack yet again to evade a lawsuit.
The same tactic, once again, in 2014, same hospital, same law firm, this time in Philadelphia County (adjacent to Montgomery County) indeed occurred.
Oh, and this time around defense appears to have neglected to mention the adverse rulings to their Certificate of Merit attacks - in both Stroud v. Abington Memorial Hospital as well as Silverstein v. Abington Memorial Hospital - in the latest lawsuit against the hospital, namely Thach v. Abington Memorial Hospital:
Judge Rejects Instant Certificate of Merit Appeal
The Legal Intelligencer
A hospital cannot instantly appeal a trial judge's order denying its request to have the plaintiff in a medical malpractice suit file separate certificates of merit for hospital personnel who are not defendants in the case, a Philadelphia judge has ruled.
In Thach v. Abington Memorial Hospital, Philadelphia Court of Common Pleas Judge Frederica Massiah-Jackson denied the hospital's motion to strike plaintiff Lyah H. Thach's certificate of merit. Thach claimed the hospital was vicariously liable for multiple strokes and other injuries she suffered while 28 weeks pregnant.
According to Massiah-Jackson's memorandum, the hospital requested that Thach produce certificates of merit for all identified and unidentified agents of the hospital who Thach's expert deemed to have provided negligent care.
In other words, in the same type of attack as prior, the hospital demanded a separate Certificate of Merit for each and every clinician involved, known and unknown, and if their names were not known, a Certificate of Merit for each class of clinician:
The actual request was this:
From DEFENDANT ABINGTON MEMORIAL HOSPITAL'S MOTION TO STRIKE THE APRIL 10, 2014 CERTIFICATE OF MERIT of April 17, 2014
... 19. One example of an appropriate Pa.R.C.P. 1042.3(a)(1) certificate of merit in the present case would include the following:
CERTIFICATE OF MERIT AS TO THE PHYSICIANS, NURSES, NURSE PRACTITIONERS, PHYSICIAN ASSISTANTS, WHO RENDERED CARDIOLOGY CARE TO LYAH THACH DURING HER ADMISSION TO ABINGTON MEMORIAL HOSPITAL ON MARCH 8, 2012
I, John Mirabella, Esquire, am an attorney for the Plaintiff in the above captioned matter. Pursuant to Pa.R.C.P. 1042.3, I hereby certify that an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the physicians, nurses, nurse practitioners, physicians' assistants who rendered CARDIOLOGY care to Lyah Thach during her admission to Abington Memorial Hospital on March 8, 2012 in the practice, treatment or work that is subject of the Complaint, fell outside the acceptable standards and that such conduct was the cause in bringing about harm to the plaintiff.
20. The above 1042.3(a)(1) certificate of merit certifies that a cardiology specialist reviewed the case on behalf of the Plaintiff and concluded that the cardiology care provided during the March 8, 2012 admission fell outside the acceptable standards of care. This requirement sufficiently fulfills the whole reasoning for requiring certificates of merit, which is to prevent the filing of unsubstantiated claims against health professionals.
21. The same should be repeated for any criticisms of the care provided to Plaintiff by other specialists who Plaintiff deems Abington Memorial Hospital vicariously liable, including radiology, neurology, hematology, infectious disease, etc.
I note that's s boatload of certificates being demanded.
In fact in the judge's decision, which I reviewed, the judge wrote:
"There is no suggestion expressed or implied in the Pennsylvania Rules of Civil Procedure that a plaintiff must file 36 Certificates of Merit when there is only one defendant."
Back to the Legal Intelligencer:
... When that request was denied, the hospital moved for an interlocutory [higher court - ed.] appeal of the order, which Massiah-Jackson also refused.
"Defendant-hospital contends that because in other cases, certain plaintiffs have filed multiple certificates of merit, then this trial court is bound by those 'precedents.' This court does not agree," Massiah-Jackson said. "There is no suggestion expressed or implied in the Pennsylvania Rules of Civil Procedure that a plaintiff must file [multiple] certificates of merit when there is only one defendant." [The hospital with its vicarious responsibility for the conduct of its employees, agents etc.- ed.]
There was no doubt in the judge's mind:
Massiah-Jackson said the guidelines governing the certificate of merit are clear and the defendant was trying to change the Rules of Civil Procedure. Moreover, Massiah-Jackson said the motion was part of a delaying tactic.
"In the case at bar, the defendant-hospital is faced with Rule 1042.3(s)(2) and Rule 1042.10 which are clear and free from all ambiguity," Massiah-Jackson said. "This defendant's attempts to add impediments to the litigation only days after the commencement of the civil action and prior to normal pretrial discovery, appear to be a pretext designed to delay Philadelphia case management protocols."
The hospital and its defense lawyers would still not give up:
The denial of Abington Memorial's subsequent request to strike the plaintiff's certificate of merit was followed by the hospital's July motion for appellate certification. According to Massiah-Jackson, that motion proposed new language not found in the Rules of Civil Procedure regarding the certificate of merit.
"If this defendant-hospital or its counsel propose new forms or new wording or other amendments, the proper forum for such recommendations is the Supreme Court's civil procedural rules committee," Massiah-Jackson said. "The hospital's bald suggestions are not a proper legal basis to support its motion to strike plaintiff Thach's certificate of merit." Additionally, "Only the Supreme Court of Pennsylvania may amend or modify its Rules of Civil Procedure or the policy decisions relating to certificates of merit," Massiah-Jackson said.
Apparently this hospital thinks it has both the power to censor writers, and the power of the PA Supreme Court to rewrite PA law. (I also note that "bald" in legal documents is not a compliment.)
I note that Marshall Dennehey Warner Coleman & Goggin attorney Joseph Hoynoski III (http://www.marshalldennehey.com/attorneys/joseph-l-hoynoski-iii) wrote the following in the aforementioned brief:
Many courts of this Commonwealth which have been presented with the question as to whether Pa.R.C.P. 1042.3(b)(1) certificates of merit are required for the other licensed professionals for whom a plaintiff deemed a defendant vicariously liable, held that where a Plaintiff bases his/her claim on vicarious liability, a certificate of merit must be filed as to each licensed professional for whom the Defendant is allegedly responsible, whether they are named or unnamed. These include, but are not limited to, the following cases:
A series of court cases are listed:
|From the brief "DEFENDANT ABINGTON MEMORIAL HOSPITAL'S MOTION TO STRIKE THE APRIL 10, 2014 CERTIFICATE OF MERIT". Click to enlarge.|
Unfortunately, the past PA cases that ruled against the defense Certificate of Merit attacks being made in the present 2014 case, namely, the 2008 Stroud case and the 2010 Silverstein case, both involving the same hospital and same defense law firm, Marshall Dennehey Warner Coleman & Goggin, are missing.
In summary, I believe the motive behind the hospital and defense team's attempts to censor this writer in April 2013 may have had to do with a desire to try to shop the same Certificate of Merit attack around to another judge, while minimizing the chance anyone would notice the arguments had been discarded by two other Pennsylvania judges prior.
The conduct mentioned in these posts is the modus operandi of a Big Corporation, not the conduct expected from a community hospital, I add. I believe this reflects the increasing corporatization of medicine.
If this Certificate of Merit attack is attempted again on another patient, there are now at least three PA cases where the arguments were rejected that I, and this defense law firm and this hospital, know of. (There may be others.)
In my opinion, failure to mention them to the tribunal under the "Candor" rules would be quite deliberate and likely merit a motion for sanctions and a complaint to the PA Bar Disciplinary Board, and perhaps a complaint to Pennsylvania hospital regulatory and PA human relations authorities as well.
This tactic stalled my late mother's case from being addressed for approximately two years. She did not live to see the merits heard. I do not believe others should have to experience that.