Articles Posted in medical malpractice

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I was interested to read that medical malpractice payments nationwide are at an all-time low, according to a new study. MedPage Today reported that both the value of payments and their number dropped to their lowest levels in 2012, following ten years of declining values. But it’s not necessarily good news, according to MedPage Today. An academic at Temple University here in Philadelphia told the website that doctors’ groups are more hostile to medical malpractice lawsuits than they once were, and more governments have responded by enacting “tort reform” laws that limit patients’ rights to recover for serious injuries. Another expert said malpractice payments may be down because visits to doctors in general are down.

The study was authored by public-interest watchdog Public Citizen, which said the results showed that malpractice payouts aren’t to blame for rising health care costs. Over the past 10 years, it said, the cost of health care has risen 58.2 percent, while medical malpractice payments have fallen 28.8 percent. If malpractice lawsuits were really a major driver of health care costs, the organization argued, the total cost of U.S. health care in 2012 would have been less than half of the actual cost. It calculated payouts at 0.11% of national health care costs. Public Citizen said the drop in malpractice payouts wasn’t because of a measured drop in actual malpractice; it said between 1/4 and 1/7 of hospital patients suffer some kind of adverse event. Rather, the researchers attributed the drop to the large number of state laws enacted that limit patients’ rights to sue.

That includes many limits on medical malpractice lawsuits here in Philadelphia, where we have an affidavit requirement for new lawsuits, among other laws. The Pennsylvania legislature often attempts to make other such laws. The trouble is, these laws typically put difficult legal barriers in front of people who are seeking fair compensation for a catastrophic injury that was no fault of their own. The affidavit of merit requirement, for example, frequently stops plaintiffs when they miss deadlines to file the affidavit, have trouble affording it, or file one only to have it rejected by the trial court. That’s why attorneys like me who practice medical malpractice law in Pennsylvania are generally against further attempts to “reform” lawsuits in favor of the medical industry.
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As a Philadelphia birth injury lawyer, I was interested to read about a recent Pennsylvania Supreme Court case involving injuries to twins who suffered serious infections before they were born. In Kinney-Lindstrom v. MCARE Fund, Lisa Kinney-Lindstrom, mother of twins Alec and Samantha Lindstrom, sued the state’s Medical Care Availability and Reduction of Error Fund for separate recoveries for each child, believing the infections that left them with severe injuries happened at different times. In both cases, she alleged, her doctor failed to diagnose the infection. The Commonwealth Court granted summary judgment to MCARE, saying there was a single occurrence requiring a single payout, but the high court found there was a genuine issue of material fact as to whether there was one infection or two.

The twins were born in November of 1995, having already suffered chorioamnionitis infections causing permanent serious injuries. Kinney-Lindstrom sued the doctor who allegedly failed to diagnose this, referred to in the opinion as Dr. S, in 2002. Under state law, the MCARE Fund defended Dr. S because the case involved extended claims. The jury in that case awarded a total of $13.15 million, and Kinney-Lindstrom agreed with Dr. S and the MCARE Fund that MCARE would pay her $1 million and Dr. S would assign to her his rights to sue MCARE over whether it should really pay a second million because there were two instances of malpractice, as well as whether it owed delay damages and postjudgment interest on the entire $13.15 million.

Kinney-Lindstrom then brought her suit for a declaratory judgment. The Commonwealth Court held that there was only one occurrence because Dr. S failed to diagnose the infection once. It granted summary judgment to MCARE on that issue. After a bench trial on delay damages, it found for MCARE, saying the delay in settling was reasonable.

Kinney-Lindstrom appealed. After dispensing with a procedural issue, the Pennsylvania Supreme Court turned to the question of the number of occurrences. Kinney-Lindstrom argued that the lower court used an inapplicable definition of “occurrence,” and in any case it is undisputed that there were two separate infections to the two children, both of which Dr. S failed to diagnose. The high court ultimately held that “occurrence” means instance of professional negligence, but that the record isn’t clear on whether there was more than one such instance in this case. This is a dispute of fact for a jury, the court said, and thus is not appropriate for summary judgment. On the delay damages issue, Kinney-Lindstrom relied on two prior cases, while the MCARE Fund argued that it had been superseded by a new law. The Supreme Court upheld the lower court by finding that the new law is not apposite, then agreeing that the MCARE Fund didn’t act negligently during settlement negotiations. It remanded for trial on the occurrence issue.

As a Pennsylvania medical malpractice lawyer, I would have liked a more final ruling on what an “occurrence” is, because that issue will surely arise again. But I’m pleased that this plaintiff–whose injured twins are now nearly 18–will have a chance to prove that she is entitled to a larger recovery. Unfortunately, it’s not uncommon for plaintiffs in this kind of medical malpractice lawsuit to be awarded far more money than they can hope to collect. Thanks to the politicization of medical malpractice, laws are in place limiting what people can recover, no matter how serious their injuries are. In this case, the affected children were born permanently disabled–a very serious injury that is often compensated with very large verdicts or settlements. As a Pennsylvania medical negligence lawyer, I wish their family had been able to collect the full $13.15 million to help them get the special care required by their injuries.
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As a Pennsylvania medical malpractice lawyer, I was interested to see a rare federal appeals court decision on a medical malpractice claim. In Phillips v. Generations Family Health Center, Christopher Phillips sued for failure to timely diagnose the cancer that ended the life of his sister, Karen Cato. Generations is a “federal” employee because it receives federal funding under the Public Health Service Act, but Phillips’s attorney did not realize it. Thus, Phillips didn’t meet the shorter deadline required under the Federal Tort Claims Act, or the requirement to file an administrative claim before suing. The district court dismissed the case, but the Second U.S. Circuit Court of Appeals remanded it for consideration of whether the statute of limitations could be suspended under these circumstances.

Cato was diagnosed with colon cancer in late 2008 or early 2009, at the age of 41. She contacted attorney Gerhardt Nielsen in January of 2009 to discuss whether she might have a malpractice claim against Generations. She passed away in April of 2009, leaving an adult son, Zane Deshong, and a three-year-old son. Numerous delays in the case were created by the fact that Deshong doing military service on a submarine, the need for many medical records, and the requirement that Phillips be appointed administrator of Cato’s estate. In fact, the lawsuit was filed in Connecticut state court shortly before that state’s statute of limitations. Nielsen had investigated Generations and found no reason to believe it was a federal entity, but four months later, the U.S. Attorney’s office removed the case to federal court, saying Generations was “deemed” a federal health provider by the government because it serves medically underserved populations.

This doomed the case, because suing a federal entity requires that plaintiffs like Phillips make their claims first to the Department of Health and Human Services within two years of the death. They may sue after the claim has been denied or ignored for six months. Phillips argued that the statute of limitations should be tolled because there was no reason to suspect Generations was a federal entity, but the district court denied this and dismissed the case with prejudice.

On appeal, the Second Circuit found that the district court may have incorrectly applied a similar recent case. In A.Q.C. ex rel Castillo v. United States, the court held that no equitable tolling was required in a case where the plaintiff’s attorney did “literally nothing” to investigate the defendant’s federal status. A.Q.C. didn’t require all plaintiffs to investigate the issue as a matter of law, the Second said. And there was much less evidence in the record of this case that Generations was a federal entity, the court noted. Concerned that the district court incorrectly interpreted A.Q.C. as creating a per se rule, it remanded for reconsideration.

As a Philadelphia birth injury lawyer, I am sorry that this family has had such complications in a case that would have gone to trial several years ago if it hadn’t involved a federal entity. Indeed, the Second Circuit’s opinion noted that it has called for the federal government to require disclosure of federal status, to avoid unpleasant surprises like this. Unfortunately, in my experience as a Pennsylvania medical negligence lawyer, there’s no political will to create that kind of warning for the same reason so many states have expert opinion requirements: insurance companies prefer that there be many obstacles between injured people and a successfully filed lawsuit. The politicization of medical malpractice ultimately hurts families that just want justice for a loved one whose diagnosis came too late.
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Here in Pennsylvania, as in many other states, plaintiffs who wish to sue for medical malpractice are required to file an affidavit of merit before they may proceed. This is a legal document signed by a medical expert attesting to the merit of the lawsuit. No such document is required before a doctor or hospital may defend the case. I have often, as a Pennsylvania medical malpractice lawyer, criticized this requirement as an added burden on a person who is already recovering from a serious injury caused by the mistake of a medical professional. Now, in Wall v. Marouk, the Oklahoma Supreme Court has invalidated that state’s affidavit requirement, finding that it is both a financial burden on plaintiffs and a “special law” that violates Oklahoma’s state constitution.

Timothy Wall sued Dr. John Marouk in 2010, alleging that Marouk cut a nerve in Wall’s right arm during carpal tunnel surgery, depriving Wall of feeling in his fingers. Wall did not attach an affidavit of merit, as required. Marouk moved to dismiss the case, but Wall argued that a previous case from the Oklahoma Supreme Court, Zeier v. Zimmer, had made the affidavit requirement unconstitutional. The state legislature had since passed an amendment in an attempt to resurrect the affidavit requirement, but Wall argued that the amendment didn’t meet the requirements of the Zimmer case. The trial court eventually ruled in favor of Marouk, and Wall filed an interlocutory appeal, arguing that the 2011 amendment was still unconstitutional.

After consideration, the Oklahoma Supreme Court agreed. The law in question requires an expert’s affidavit in any professional negligence case. In so doing, the court said, it creates two classes of plaintiff in Oklahoma: people suing for negligence and people suing for professional negligence. The court found that this violates the Oklahoma state constitution’s prohibition on “special laws,” which are laws imposing different rights or duties on members of a class who otherwise “stand on the same footing.” Thus, the 2011 affidavit of merit requirement in professional negligence cases is unconstitutional, the court said, and is fundamentally similar to the one struck down in Zimmer. It further agreed with Wall that the cost of obtaining an affidavit, estimated at $500 to $5,000, is so high that it creates an unconstitutional barrier to accessing the courts. In fact, the court said, even the $40 fee to apply for indigent status may be too high a burden for the truly indigent.

This decision is good news for medical malpractice plaintiffs in Oklahoma. It removes a barrier to filing a lawsuit that creates practical problems for plaintiffs who may already be suffered physically or financially from a serious injury. Though the court was right that a financial barrier exists–because doctors do not work for free–there is also frequently a time problem. Because lawsuits can’t be filed if the victim waits too long after the injury, an affidavit requirement could take too long and push victims past the deadline. Then, no matter how meritorious the case is, there’s no way to recover money. That’s true here in Pennsylvania–but we don’t have Oklahoma’s restriction on “special laws” that was the cause of the court’s decision here. As a Philadelphia birth injury lawyer, I think that’s a shame.
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When two brothers filed a lawsuit in Philadelphia County after their brother had died there had been so many doctors, nurses and other medical professionals involved in caring for Joseph Fusco that it was unclear who was responsible and who should be part of the suit. The suit was a survival claim for damages due to pain and suffering. A decision was made that various medical professionals were not proper defendants in the case and the brothers appealed that decision.

Joseph Fusco was taken to Pennsylvania Hospital with shortness of breath, rapid breathing and wheezing. Medications were unable to relieve his symptoms and he was intubated. Joseph had pre-existing medical conditions that included circulatory failure, respiratory failure and a severe infection. These conditions kept him in critical condition and ten days after being admitted to the hospital a feeding tube and tracheostomy were performed on him. Following this procedure, bleeding was observed at the site and despite multiple measures Joseph died that day.

The Medical Care Availability and Reduction of Error Act covers the standards that must be demonstrated to show that is the agent or employee of a hospital. Hospitals may be held vicariously liable for the acts of other health care providers if the evidence shows that a reasonably prudent person in the patient’s position would be justified in believing that the care in question was being provided by the hospital. Evidence that a health care provider holds staff privileges at a hospital is insufficient to make the hospital liable for their acts.

In this case, the brothers failed to offer any evidence that Joseph reasonably believed that the people caring for him were agents of the hospital. The hospital denied that there was any agency relationship between themselves and many of the medical providers that cared for Joseph. The Court states that evidence such as witness testimony regarding the agency structure of the hospital, and how the medical providers presented them to Joseph could have provided sufficient evidence that a reasonable person in Joseph’s position would have thought that the medical providers were agents of the hospital.

Other medical providers were removed from the lawsuit because the brothers failed to demonstrate that any action attributable to them caused Joseph’s death. In order to establish liability in a medical malpractice case, proving causation that the failure to provide the requisite standard of care was the actual cause of injury or death. One doctor provided testimony that the tracheostomy cuff needed to be inflated but was never asked questions regarding whose duty it would have been to inflate the cuff or whether the failure to inflate it caused injury or death.

The last medical provider was removed from the lawsuit because in order to find fault with a provider the brothers had to prove that the medical provider breached his duty to Joseph or failed to provide an adequate standard of care. The Court suggests that expert testimony regarding a failure to adequately meet the standard of care was necessary. The Court also notes that while there were a lot of people attending to Joseph and events surrounding his death were complicated and confusing it does not excuse Joseph’s brothers from providing adequate testimony to properly prove liability.

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A recent study of medical malpractice jury verdicts and settlements shows that Pennsylvania is the state with the second-highest dollar amount for medical malpractice payouts. As a Pennsylvania medical negligence lawyer, I help injured families sue for these payouts–an umbrella term for jury verdicts or (more likely) out-of-court settlements. The study, which came from medical malpractice insurer Diederich Healthcare and was reported in The Clinical Advisor, also looked at overall medical malpractice payout amounts, the type of injury that led to a verdict or settlement, the type of patient who was injured and the severity of the injury. The data comes from 2012 entries to the National Practitioner Data Bank, a database maintained by the U.S. Department of Health and Human Services.

The insurance company presented its data in graphic form, though the entire graphic was not typically included in media reports. Overall, $3.6 billion was paid out for medical malpractice claims in 2012, for a total of 12,142 lawsuits. Interestingly, the data shows that medical malpractice payouts have declined steadily since 2003, after a sharp rise between 1998 and 2001. Pennsylvania and New Jersey were two of the five states that represented nearly half (48 percent) of the amount of payouts; the others were Florida (number five), California (three) and New York (one). The vast majority of the payouts, 93 percent, came as settlements; any lawsuit is statistically most likely to be settled. And by far the most common injury in these cases was death, at 31 percent of cases; this was followed by significant (19 percent) and major (18 percent) permanent injuries, then quadriplegia, brain damage or other lifelong care injuries (12 percent).

Though this graphic was put out by a malpractice insurer with a financial incentive to portray medical malpractice lawsuits as frivolous, some of the data actually shows they’re not. For example, the proportion of injuries that were categorized as minor and temporary; insignificant; or only emotional totaled 4.4 percent, suggesting that the claims were rarely frivolous. The steadily falling total amount of payouts suggests that if there was ever a malpractice costs crisis, it has been or is being resolved. The very high proportion of settlements suggests that high awards do not generally come from “runaway juries.” And the fact that just five states represent half of all payouts suggests that there’s no nationwide malpractice problem. Indeed, all of the top five states are high-population states. Pennsylvania may have a higher dollar amount not because we have any special malpractice crisis, but because we have a higher number of people.

I’ve written here many times about the dangers of calls for medical malpractice “reform.” These are typically supported by insurance companies that don’t want to pay injured people’s claims. Unfortunately, their effect is to keep the most seriously injured victims from being able to claim fair compensation, via damages caps or complex requirements when filing a claim. As a Pennsylvania birth injury lawyer, I believe this data shows that rumors of crisis are greatly exaggerated.
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As a personal injury attorney, I was intrigued to read about the testimony in the da Vinci robot lawsuit that recently began in California. Allegations have surfaced that Intuitive Surgical Inc. aimed their marketing campaign for the da Vinci robot at less skillful surgeons. In addition to the California trial, the US Food and Drug Administration (FDA) has begun checking into reported problems with the robot’s performance, which include fatalities when the da Vinci robot was used during surgery.

Internal marketing documents named doctors who were regarded as possessing lesser skills when performing minimally invasive procedures, according to Bloomberg (4/18/13). Intuitive’s director of marketing Ryan Rhodes testified that those surgeons were then targeted by the marketing department as the best candidates to purchase the da Vinci robot.

The California lawsuit was brought by Fred Taylor’s widow. Fred died four years after having prostate removal surgery by the da Vinci robot. The lawsuit alleges that the victim died due to surgical errors that were caused because Intuitive did not properly train the surgeon who completed the operation.

In their defense, Intuitive claims that the physician should not have used the robot because the patient was obese. The doctor had been warned not to use the robot for laparoscopic surgery, testified an attorney for Intuit. The surgeon said he was never told not to use the da Vinci robot on obese people. The New York Times reported that the surgery took longer than 13 hours instead of the normal five hours. Taylor was left with lung and kidney damage.

The plaintiff’s attorneys have argued that Intuitive’s sales force recommended hospitals to set their standards lower so doctors who would not qualify otherwise would be able to get credentialed to use the robot. The Intuitive marketing team was instrumental in training and authorizing doctors to use the robot. The sales people were reportedly allowed access to operating room schedules, so they could hand-pick cases for which the surgeons could use the da Vinci robot. The Taylor family has already settled with the surgeon.

Intuitive Surgical touts the da Vinci system as being less invasive than traditional open surgery for such procedures as hysterectomies and prostatectomies. Doctors with shaky hands or tremors can perform procedures with the robot because they control the robot’s three or four arms from a remote console.

In the April 9, 2013 issue, Time Magazine reported unusual events tied to the da Vinci robot. During one surgery, a patient was hit in the face by an arm of the robot. The FDA is investigating at least five deaths associated with the robot. Another man died from an internal infection after his intestines were punctured by the robot, said Time.

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As reported by the Legal Intelligencer April 16, jury awards $700,000 to state trooper after being rear-ended at a red light in Philadelphia. In Dragotta v. Graham, plaintiff alleged that in August 2009, while stopped at a red light, a 1996 Ford Econoline 250 van, owned by PHS Corp., and operated by defendant, Dorsey Graham, struck the back of the plaintiff’s car. At the scene of the car accident, defendant alleged that the when he tried to use his brake they failed, resulting in him being unable to stop before hitting the back of the plaintiff’s vehicle. It was later determined that the brakes were fully operational. Defense did not dispute any liability, but in their pretrial memorandum, argued that plaintiff did not exhibit any signs of injury. Defense also argued that the accident did not effect plaintiff’s job, as she has remained a state trooper even though promoted. Preexisting conditions tend to be a layered argument, that “but for” the accident occurring, plaintiff’s already existing injury would not have been further complicated.

According to the article, the plaintiff’s memorandum states that at the time of the accident, Dragotta complained of pain in her neck and back, and was taken to Hahnemann University Hospital. Plaintiff’s private physician prescribed Flexeril, Vicodin, and Ibuprofen, to help alleviate Dragotta’s headaches, back pain, stiff neck, nausea and night sweats. The plaintiff’s medial records show that by March 4, 2010, she had visited her physical therapist regarding her injuries 49 times. Over the course of the following year, Dragotta had seen her chiropractor 57 times to treat her herniated disk, and numbness. Plaintiff argued that some of the injuries were aggravated by the accident. The plaintiff after several years of physical therapy was later referred to Dr. Steven Valentino, an orthopedic and reconstructive spine surgeon. Dr.Valentino testified to both currently treating the plaintiff and said in a May 2012 report that, “Dragotta will need spine surgery.” As a Philadelphia personal injury attorney I was interested to read about the outcome of a pre-existing condition case before the Court of Common Pleas. The 12-person jury exhibited a deep understanding for preexisting conditions that are aggravated by further injury.

I understand first hand the time consuming recovery that can be required after a car accident. Making time for doctor visits in an already busy schedule can be both overwhelming and frustrating at times, none the less necessary. Common injuries after a car accident include, spine, back and neck injuries, concussions and traumatic brain injuries can also occur. Often times depending on the gravity of the car accident broken bones, lacerations, and possible internal injuries. Not all injuries sustained in a car accident are visible by the naked eye. Often times months, if not years of physical therapy is needed to get back to the mobility prior to the accident. As a Pennsylvania personal injury attorney, I want my clients to have the best representation possible, especially when preexisting injuries have been aggravated by a car accident.

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During oral arguments before the Pennsylvania Supreme Court, regarding whether the Superior Court properly applied *Wilson v. El-Daief*, the court upheld that plaintiffs must name the cause of the injury in order to bring suit even if barred by time. The statute of limitations begins to toll upon discovery in medical malpractice cases, even if at the time of discovery it is unclear who is to blame. Pennsylvania Supreme Court Justice Max Baer insightfully asked, “What do we do when the plaintiff doesn’t know who to sue?” As a Pennsylvania medical malpractice lawyer, I was very interested to see where the court would rule in regards to the time of when the plaintiffs’ burden to identify the source of their injuries would begin to run. This can be particularly challenging when there are multiple complications, and therefore multiple sources of injuries occurring over the span of many years. According to the Legal Intelligencer reported April 16, at oral argument the justices upheld the Superior Court’s decision to vacate the award. Holding that the Superior Court properly applied *Wilson*, that the statute of limitations begins to toll upon discovery, and in *Garmin v. Heine*, the suit was barred by Pennsylvania’s two-year statute of limitations and therefore the verdict of $735,000 was vacated.

Under the Tortfeasor Identification Rule, a plaintiff has the burden to identify the source of their injuries. In *Garmin*, where the plaintiff brought suit against multiple doctors; Dr. Sphalerite Raschid, (regarding first sponge discovered in 1997 and second sponge discovered in 2006), and Dr. Laurie Heine, (regarding explorative surgery to remove first sponge in 1997), and the Chambersburg Hospital. The Superior Court held that the suit was barred by the statute of limitations. Kelly Garmin the plaintiff, discovered during a CT scan in May 2006 that she had a second sponge left inside her abdomen. Plaintiff had already undergone one surgery back in 1997 to remove a sponge that had been left after her first C-section in 1993. The lawsuit named all defendants as ones who either were negligent for failing to remove the second sponge during either the 1997 exploratory operation or the 1999 C-section.

The Pennsylvania Supreme Court upheld the Superior Court panel in *Garmin v. Heine*, which ruled that the statute of limitations had indeed begun to run upon the discovery of a foreign object, even though the plaintiff did not know who was the cause of the injury at the time of the discovery. Here, Garmin brought suit one year too late. This is an interesting ruling as it furthers the importance of taking the first step in seeking legal representation from an experienced Pennsylvania medical malpractice lawyer, as early in the process as possible, to ensure you are not barred by time.
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As a Pennsylvania medical malpractice lawyer, I’m very interested in two cases scheduled for oral arguments soon in the Pennsylvania Supreme Court. As the Legal Intelligencer reported April 9, the high court will hear a high-profile medical malpractice case. The court’s watchers are especially interested because Justice Orie Melvin has resigned after criminal charges for misusing her office to perform campaign work. (Pennsylvania Supreme Court justices are elected, not appointed.) That situation could create an even 3-3 split in the court on controversial topics, particularly since the six remaining justices are split evenly along party lines. As a result, court watchers are very interested in the outcome of Garman v. Heine, which concerns when a statute of limitations is tolled.

In Garman, plaintiff Kelly Garman discovered a surgical sponge had been left inside her body after several surgeries. However, it wasn’t clear which surgery was responsible for the problem. As a result, it wasn’t clear who was to blame, which determined when the statute of limitations–the deadline to sue–began running. In cases where an injury is discovered after it occurs, such as lost object during surgery cases, the statute of limitations generally begins when the injury is discovered. The trial court permitted Garman and her husband to go to trial, where they won a $735,000 jury award. However, the Superior Court vacated the award, finding that the Garmans waited too long to bring their case because the clock should have begun ticking upon discovery that there was an injury at all–not when they discovered who was to blame. The appeal to the state Supreme Court will focus on whether the Superior Court’s ruling properly applied Wilson v. El-Daief, which found that the knowledge of the injury was sufficient to start the clock.

This is an interesting question, but as a Pennsylvania medical negligence lawyer, I don’t believe a ruling against the Garmans is good for anyone in the long run. Of course, the defendant would prefer not to pay the judgment, but the rule contemplated by the Superior Court’s ruling could give plaintiffs an incentive to sue everybody and then sort it out in court. As a result, a Supreme Court ruling upholding it could ultimately create more costly litigation for everybody. Indeed, a partial dissent in Wilson raised a very similar objection, saying the discovery rule and the certificate of merit requirement together essentially require plaintiffs to sue before they know whether they have a real injury or merely side effects. As a Philadelphia birth injury lawyer, I will be interested to see how the Supreme Court rules when the time comes.
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