Phillips v. Hanna

67 Pa. D. & C.4th 449, 2004 Pa. Dist. & Cnty. Dec. LEXIS 179
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedSeptember 7, 2004
Docketno. 93 CV 5051
StatusPublished
Cited by2 cases

This text of 67 Pa. D. & C.4th 449 (Phillips v. Hanna) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. Hanna, 67 Pa. D. & C.4th 449, 2004 Pa. Dist. & Cnty. Dec. LEXIS 179 (Pa. Super. Ct. 2004).

Opinion

NEALON, J,

ORDER

Plaintiffs have filed an “Emergency motion for continuance” seeking a postponement of this medical malpractice trial as a result of statements made by President George W. Bush during a campaign rally at the Lackawanna County Stadium on September 3, 2004. By way of brief background, the adult plaintiffs instituted this malpractice case against their minor daughter’s pediatrician, Raoufe Hanna M.D. and Community Medical Center (CMC), alleging a negligent failure to diagnose the minor’s hip dislocation following her birth at CMC on [451]*451December 20, 1986, and prior to her discharge on December 22,1986. Plaintiffs contend that their child’s hip dislocation was not diagnosed until 1990 and assert that the failure of Dr. Hanna and CMC’s nurses to detect this condition caused the minor to undergo an open reduction with femoral shortening and adductor tenotomy on March 18, 1991. (See dkt. entry no. 4.)

Since more than four years elapsed between the date of the alleged negligence in December 1986 and the commencement of this malpractice action on September 29, 1993, CMC has been defended in this case by the former Medical Professional Liability Catastrophe Loss Fund (now the Medical Care Availability and Reduction of Error (MCare) Fund) pursuant to section 605 of the Health Care Services Malpractice Act, 40 PS. § 1301.605 (repealed by the Act of March 20,2002, PL. 154, no. 13, §5104(a)(2), and replaced by 40 PS. §1303.715). For reasons that are not entirely clear from the record, the Fund has declined to provide coverage or a defense for Dr. Hanna in this matter. Dr. Hanna has opted not to defend this claim or otherwise participate in this litigation, and, as a consequence, a default judgment was entered against him on February 4,1997, as to liability only. {Id., no. 21.)

It is undisputed that Dr. Hanna was an independent contractor with staff privileges at CMC and was not an actual employee of CMC at the time that he treated the minor plaintiff there between December 20, 1986, and December 22,1986. In order to determine whether CMC could be found vicariously liable for the defaulted liability of Dr. Hanna, the parties agreed to first litigate the issue of whether Dr. Hanna was an ostensible agent [452]*452of CMC when he treated the minor plaintiff between December 20,1986, and December 22,1986. At the conclusion of a jury trial limited to that ostensible agency question, the jury found that Dr. Hanna was not an ostensible agent of CMC during that time period. (Id., no. 61.)

Plaintiffs thereafter chose to proceed forward with their corporate liability and nursing negligence claims against CMC and a jury trial on those issues was scheduled for September 7, 2004. On the morning of September 3, 2004, President Bush spoke at a campaign rally at the Lackawanna County Stadium. According to the text of his remarks as published in the September 4, 2004 edition of The Scranton Times/The Tribune, President Bush discussed a variety of issues, including education, Medicare, the economy, unemployment, foreign trade, taxes, health insurance, Social Security, federal judges, “conservative values,” 9/11, terrorism, the Afghanistan and Iraq wars, and national security. During his 4,201 word address, the President also referenced medical malpractice and stated:

“I want to talk about a national issue that is of concern to millions here in Pennsylvania. Too many doctors, too many really fine healers are being forced out of practice because of the high cost of junk lawsuits. You cannot be pro-doctor and pro-patient and pro-plaintiff attorney at the same time.
“You have to choose. My opponent made his choice and he put him on the ticket. I made my choice, I’m standing with the docs and patients. We want medical liability reform now.
“Let me give you a quick story about what I’m talking about. I’m telling you this is a national problem that re[453]*453quires a national solution. Today, I met with Dr. Neal Davis from Carbondale. He told all his patients to come. And Mary Coar, one of his patients ... I want you to hear this story because it’s happening all across America.
“Last November, after 15 years of practice in Pennsylvania, Dr. Davis learned that his insurance company would no longer insure doctors in this state because of the junk lawsuits, because the law system here in terms of medicine is like a lottery. That’s what it’s like. And it’s unfair to patients. It’s unfair to doctors. It’s unfair to taxpayers. He found a new policy, but it said you had to give up delivering babies as a part of the coverage. That’s what’s happening to OB-GYN’s all across the country.
“That forced Mary, four months pregnant, to start driving 50 miles each way to see different doctors, a different doctor. When Mary’s daughter arrived this summer, she was delivered this summer by a doctor Mary had never met. She said T started to cry when he told me he was going to have to stop delivering.’ This is happening because the legal system has gone awry. We need medical liability reform now.” (Id., no. 72.)

At 3:24 p.m. on the last business day prior to the start of trial, the plaintiffs filed an emergency motion for a continuance alleging that “substantial prejudice ... has and will occur to the minor plaintiff because of the visit of President George W. Bush to Lackawanna County on Friday, September 3, 2004.” (Id., no. 71, ¶3.) In their motion, the plaintiffs contend that they “will be unable to obtain a fair an[d] equitable trial of this case in light of President Bush’s visit to Northeastern Pennsylvania, the contents of his speech, and how the contents of this speech will be disseminated across Lackawanna Coun[454]*454ty.” (Id., ¶13.) Plaintiffs further submit that “[i]t would be entirely prejudicial and unfair to this minor plaintiff to require her to select a jury that has now been tarnished and tainted by President Bush’s visit to Lackawanna County.” (Id., ¶14.)

Prior to the commencement of jury selection on September 7, 2004, counsel for plaintiffs presented oral argument in support of the plaintiffs’ motion for a continuance and defense counsel submitted CMC’s arguments in opposition to the continuance request. At that time, plaintiffs were allowed to develop a record delineating the plaintiffs’ grounds for requesting a continuance of the trial. (Transcript of proceedings (T.P.) on 9/ 7/04, volume I, pp. 2-17, 32-34,40-42 filed as dkt. entry no. 73.) We deferred any ruling on the plaintiffs’ motion and directed counsel to question the prospective jurors during voir dire regarding their knowledge of President Bush’s remarks and the effect that those comments may have had on them. See e.g., Lopez-Stayer v. Pitts, 93 P.3d 904, 908 (Wash. App. 2004) (provided that counsel did not use the word “insurance,” plaintiff’s counsel in a medical malpractice action could “voir dire on the topics of ‘claims,’ ‘frivolous lawsuits,’ and the medical malpractice ‘crisis’ generally” since “the jury panel (as part of the general public) had been inundated with publicity about the medical malpractice crisis and its effect on the health care industry, including recent comments by the President of the United States in his State of the Union Address.”); Irish v. Gimbel, 691 A.2d 664, 675 (Me.

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Bluebook (online)
67 Pa. D. & C.4th 449, 2004 Pa. Dist. & Cnty. Dec. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-hanna-pactcompllackaw-2004.