February, 2005

I.Professional Liability Issues

Action Arising From Fall in Physician's Office Sounds in Medical Malpractice Negligence

The Superior Court of Pennsylvania has recently held that a plaintiff who sustained an injury after a fall in her physician's office failed to state a claim for medical malpractice because she did not produce a medical malpractice expert report. In Grossman v. Barke, 2005 WL 249045, 2/3/05, the plaintiff alleged that she was in the office of her longtime family physician, when she fell from the examination table after the doctor left the room to find a suture removal kit. The plaintiff, who was 69 years old, had visited Dr. Barke to obtain a pre-examination for a knee replacement. At the time of visit, the plaintiff also had sutures in her ankle from a previous surgical procedure, and when the physician directed the plaintiff to get on the examination table, she became dizzy and fell to the floor. The fall resulted in a fractured pelvis requiring several surgeries from which the plaintiff suffered numerous complications.

The plaintiff then filed a complaint against the physician, alleging that his negligence had caused the injuries suffered as a result of the fall from the examination table. The plaintiff essentially contended that the doctor, as her family physician, should have known that she could not remain safely seated on the examination table, due to her history of diabetes, associated dizzy spells, and other aspects of her physical condition.

During the litigation, a question arose concerning whether the plaintiff had stated a cause of action sounding in medical malpractice or ordinary negligence. The physician filed a motion for summary judgment, arguing that the plaintiff's claims were premised on medical negligence as opposed to ordinary negligence, and thereby required supportive expert testimony. The plaintiff argued that the claim was based on ordinary negligence, notwithstanding the fact that the negligence occurred in the physician's office. Further, the plaintiff had submitted an expert report that allegedly supported a cause of action for ordinary negligence, and stated that the physician was aware of the plaintiff's diabetes and associated dizzy spells, and that by asking her to "jump up on the table" without assistance constituted negligence. The plaintiff contended that the jury in the case would not need the assistance of an expert medical witness to establish the physician's negligence. The trial court rejected the plaintiff's arguments and granted the physician's motion for summary judgment. The plaintiff then filed an appeal to the Pennsylvania Superior Court.

The Superior Court reviewed the plaintiff's complaint, and held that the plaintiff was intending to proceed on a medical malpractice theory of negligence, rather then an ordinary negligence theory. The court focused on the fact that the plaintiff alleged that her injuries were a result of the physician's negligence, and "his failure to provide medical assistance… within a reasonably expected standard of care." The plaintiff also contended in her complaint that the purpose of her visit with the physician was to obtain a pre-examination for a knee replacement. The plaintiff averred that she was under the "professional care and control of the physician at the time of the incident" and that he "was negligent and failed to exercise the reasonably expected standard of care". The Superior Court stated that given these averments, "the trial court did not err by characterizing Plaintiff's theory of liability as medical malpractice. Plaintiff's theory of liability is premised on the physician-patient relationship… But most telling is plaintiff's assertion of liability based on [the physician's] professional knowledge, as a physician, of his patient's condition, which required consideration of certain complex medical factors including an alleged history of dizzy spells due to diabetes." The Superior Court further concluded that these medical issues required expert testimony from a qualified witness to explain to the jury the impact of the plaintiff's medical condition on her ability to stay safely seated on the examination table. Because the plaintiff's expert did not testify to a reasonable degree of medical certainty, the Superior Court affirmed the trial court's grant of summary judgment in favor of the physician.


Weight Loss Center's Refusal to Hire Morbidly Obese Employee Does Not Violate the ADA

A Pennsylvania federal court has recently held that a weight loss center's refusal to hire a morbidly obese potential employee does not violate the Americans with Disabilities Act or the Pennsylvania Human Relations Act. In Goodman v. L.A. Weight Loss Centers, Inc., 2005 WL 241180, 2/1/05, the plaintiff, who suffered "morbid obesity" and weighed approximately 350 pounds at the time relevant to his complaint, interviewed for the position of sales counselor with the weight loss center. L.A. Weight Loss Centers provides weight reduction plans to clients, with an emphasis on the maintenance of a healthy lifestyle. After the interview, the defendant informed the plaintiff that it believed that he was the "most qualified" applicant for the position, but there was a problem with his weight. The plaintiff was told that the plaintiff's application for employment would be rejected because the defendant was an "image conscious" company, and his weight "sent the wrong message" to the defendant's overweight clientele.

The plaintiff then filed an action in federal court, alleging violations of the Americans with Disabilities Act, 42 U.S.C. §12101 et. seq., and the Pennsylvania Human Relations Act, 43 P.S. §951 et. seq. The plaintiff claimed that the sole basis for the denial of his employment with defendant was the defendant's perception that his morbid obesity constituted a disability.

In order to state a claim under the ADA, a plaintiff must establish that he or she has a "disability" within the meaning of the statute, is otherwise a qualified individual, and has suffered an adverse employment action by a covered employer because of that disability. The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of such an impairment; or (3) being "regarded as" having such an impairment. In order to be regarded as having a disability under the ADA, the plaintiff must show that he has a physical or mental impairment that does not substantially limit major life activities, but is treated by a covered entity as constituting such limitations; has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or has no such impairment, but is treated by the covered entity as having a substantially limiting impairment.

The court found that the defendant had not violated the ADA, because the defendant regarded the plaintiff as the "most qualified" applicant for the job, and there was no allegation that its agents perceived the plaintiff as being unable to perform some aspect of the required work. The court assumed that the major life activity at issue under the ADA was "working", and stated that while "working" can be considered a major life activity under the ADA, in order to state a claim based on a perceived impairment in this activity, the plaintiff would have to allege that the defendant regarded him as incapable of performing a wide range of tasks or jobs. The court also stated that it is "well established that an employer is permitted to make hiring decisions based on certain physical characteristics… The mere fact that defendant was aware of plaintiff's weight and rejected his application for fear that his appearance did not accord with the company image is not improper. To hold otherwise would render an employer's ability to hire based on certain physical characteristics entirely void."

The court also held that the plaintiff failed to state a claim under the Pennsylvania Human Relations Act. Under the Pennsylvania Human Relations Act, the plaintiff must allege that he suffered a non-job related handicap or disability, or, that he was perceived by a prospective employer as suffering from such a handicap or disability. The definition of "handicap or disability" is similar to that set forth in the ADA, and the Pennsylvania courts have generally interpreted provisions of the Pennsylvania Human Relations Act in accordance with their federal counterparts. Based on this analysis, the court also rejected the plaintiff's claim under the Pennsylvania Human Relations Act.


Insurer Entitled to Rescind Settlement Agreement Following Mistake about Policy Limits

In Villanueva v. Amica Mutual Insurance Co., 2005 WL 120472, 1/4/05, the Superior Court of New Jersey, Appellate Division, was called on to decide whether an insurer was entitled to rescind a settlement agreement, after it had mistakenly settled on behalf of its insured in an amount that exceeded the policy limit. The plaintiff in this case was injured in an automobile accident, and the driver and the owner of the other vehicle were both insured by the defendant insurance company. The insurance company offered to settle the plaintiff's claim for the sum of $35,000, based upon its review of liability and damages, as well as its erroneous belief that it had previously issued a liability policy with a $35,000 limit of coverage. The plaintiff accepted the offer and signed a release.

The insurer then discovered that it had made a mistake about its own policy limit, and that the policy limit was actually only $10,000. After the insurer declined to comply with the original settlement agreement, and instead offered $10,000 to settle the claim, the plaintiff filed suit against the insurer, seeking to enforce the previous settlement agreement. The insurer claimed that it had acted under a mistaken belief of facts regarding the actual amount of the policy limit, and that it had fully performed its obligation under the policy of insurance by offering the full and actual limits of the policy.

The court agreed with the insurer, and found that the application of equitable principles supported the insurer's claim. The law is well settled that when an insurance company pays a claim as a result of a unilateral mistake, restitution is an available remedy, so long as there is no detrimental reliance on the part of the payee. The court found no indication that the plaintiff had suffered any legal prejudice as a result of the insurer's mistake, and found that under these circumstances it would "be unconscionable to enforce that settlement."

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