Kotofsky v. Albert Einstein Med. Ctr.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
:
MORRIS KOTOFSKY et al. : CIVIL ACTION
:
v. :
:
ALBERT EINSTEIN MEDICAL CENTER : NO. 98-3416
and JOHN BELL-THOMPSON, M.D. :
O’NEILL, J. OCTOBER , 2000
MEMORANDUM
Plaintiff Morris Kotofsky filed this suit alleging that he had negligently
been infected with HIV during a blood transfusion.(1)
Kotofsky sued the American Red Cross, the Albert Einstein Medical Center
(“AEMC”) and John Bell-Thompson M.D. (“Thompson”) in Pennsylvania state court.
On July 2, 1998 the action was removed to this Court pursuant to 28 U.S.C. ?
1446. (2)
On August 14, 2000 plaintiff’s suit against the Red Cross was dismissed by
stipulation of the parties. (3)
Remaining before me are defendant Thompson’s motion for summary judgment,
defendant AEMC’s motion for summary judgment and plaintiff’s second motion to
reopen discovery and revise my scheduling order.
BACKGROUND
Kotofsky was an inpatient at AEMC from November 1, 1991 until November 28,
1991. On November 13, 1991 Kotofsky signed a document entitled “Consent to
Transfusion of Blood and Blood Components and Release.” This form was created by
AEMC and according to plaintiff did not contain any language discussing
alternatives to the transfusion of blood or to the use of blood components
supplied by or through AEMC. On November 14, 1991 Dr. Thompson performed triple
bypass surgery on Kotofsky. Following the procedure Kotofsky received one unit
of packed red blood cells supplied by the Red Cross. Kotofsky was diagnosed as
HIV positive on or about June 6, 1996. The unit of blood transfused to Kotofsky
in 1991 was the subject of an American Red Cross “look back” investigation. It
was determined that the donor had various risk factors for HIV and/or was HIV
positive at some point subsequent to his donation of blood.
Plaintiff alleges that defendants voluntarily undertook a duty to obtain
Kotofsky’s informed consent to the blood transfusion. Defendants allegedly
breached this duty by failing to inform Kotofsky of the risk of HIV transmission
associated with receiving a blood transfusion from unknown donors, and were
negligent in failing to inform him of the hospital’s directed donor program,
whereby a patient may elect to have blood withdrawn prior to surgery or have
blood donated by family members for use should a transfusion prove necessary.
On March 16, 1999 AEMC and Thompson moved to dismiss the case for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). This motion was denied in part and
granted in part.(4)
I issued a revised scheduling order on January 18, 2000 closing discovery on
April 21, 2000 and directing plaintiff to designate experts by May 13, 2000. On
May 26, 2000 plaintiff moved to reopen discovery and revise the scheduling
order. I denied this motion on June 7, 2000 and directed plaintiffs to make a
good faith effort to complete discovery within thirty days of that date. Both
remaining defendants move for summary judgment on the grounds that plaintiff has
failed to designate an expert or produce an expert report and therefore under
Pennsylvania law cannot establish a prima facie claim of medical malpractice.
Plaintiff has filed a second motion to reopen discovery and revise the
scheduling order.
I. SUMMARY JUDGMENT
Standard of Review
Summary judgment is appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
Court’s task is not to resolve disputed issues of fact, but to determine whether
there exists any factual issues to be tried. See Andersen v. Liberty
Lobby, Inc., 477 U.S. 242, 247-49 (1986). In making this determination, all
of the facts must be viewed in the light most favorable to the non-moving party.
Id. at 248. However, the non-moving party must raise “more than a mere
scintilla of evidence in its favor” in order to overcome a summary judgment
motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.
1989). The non-moving party cannot survive by relying on unsupported assertions,
conclusory allegations, or mere suspicions. Id.
Discussion
It is well settled under Pennsylvania law that “[t]o establish a prima facie
case of medical malpractice, a plaintiff must produce expert testimony that
establishes the recognized standard of care attributable to physicians under
like circumstances.” Fox v. Horn, No. CIV. A. 98-5279, 2000 WL 49373 at
*6 (E.D. Pa. Jan. 21, 2000) (citing Brannan v. Lankenau Hospital, 490 Pa.
588 (1980)). A plaintiff must present expert testimony to establish to a
reasonable degree of medical certainty that the defendant’s acts deviated from
an accepted medical standard and that such deviation was the proximate cause of
plaintiff’s injuries. See Tuman v. Genesis Assocs., 935 F. Supp.
1375, 1386 (E.D. Pa. 1996), citing Mitzelfelt v. Kamrin, 526 Pa. 55
(1990).
Defendants base their motions for summary judgment on the failure of
plaintiff to designate an expert or file any expert reports to support their
claim of medical malpractice. However, this assertion misconstrues the nature of
plaintiff’s claim. Kotofsky does not allege medical malpractice in the
traditional sense. (5)
Kotofsky claims that defendants voluntarily assumed a duty to obtain his
informed consent and failed to use reasonable care in performing that duty. As I
stated in ruling on defendants’ motion to dismiss, see No. CIV. A. 3416, 1999 WL
712584 (E.D. Pa. Sept.10 1999), at least one court within this district has
found that such allegations state a viable claim. See Jones v.
Philadelphia of College of Osteopathic Medicine, 813 F. Supp. 1125 (E.D. Pa.
1993). In Philadelphia College a hospital prepared and distributed to
plaintiff a consent to blood transfusion form bearing its own name and logo. The
Jones court held that allegations that the hospital had “gratuitously
undertaken this obligation and therefore ha[d] a duty to make certain that the
informed consent forms fully inform patients. . . of the risks associated with
blood transfusion” may indeed state a cause of action. Id. In analyzing
Philadelphia College in Davis v. Hoffman, 972 F. Supp. 308, 312
(E.D. Pa. 1997) , Judge Gawthrop noted that it was
but an example, in the medical context, of general negligence law concerning
duty. One has, for example, no duty to drive one’s neighbor to the airport. But
if one nevertheless volunteers to undertake that good-neighborly task, and then
drives negligently, causing the neighbor to be injured en route, one is held
legally accountable.
Thus Kotofsky’s claim is closer to ordinary negligence than to medical
malpractice. In order to survive defendants’ motions for summary judgment
Kotofsky must demonstrate that there exist disputed issues of material fact with
respect to his claim that defendants owed him a duty, breached that duty and
that such breach caused him to suffer an injury.(6)
Plaintiff attached a number of exhibits to his reply to defendant’s motion
for summary judgment that include factual support for his allegations. For
example, Exhibit F contains excerpts from the deposition of Ishmael Daskal,
Ph.D, the director of the blood bank at AEMC at the time of Kotofsky’s
transfusion. Dr. Daskal testified that alternative transfusion methods existed
at the time of plaintiff’s operation and that he did not recall either the Red
Cross or AEMC placing any limits on the use of these methods. Taking the facts
in the light most favorable to the non-moving party I find plaintiff has met his
burden of demonstrating that genuine issues of material fact exist as to whether
defendants breached a duty of care to Kotofsky.
II. Motion to Reopen Discovery and Revise the Scheduling
Order
Plaintiff has moved to reopen discovery and revise the scheduling order I
issued on January 18, 2000. Plaintiff’s motion is based on an earlier denial of
his request to revise the January order wherein I stated that if plaintiff made
a good faith effort to complete discovery and could show a legitimate need for
extension of the discovery cut-off date he could renew his motion. See
Order of this Court dated June 7, 2000. Plaintiff maintains that he has made
such a good faith effort and has been unable to obtain one deposition, that of
Beth Turnbaugh who is presently working on a restricted army base in the
Marshall Islands. Turnbaugh is a former AEMC employee who worked with the Blood
Bank in 1990-1991 and is alleged to be familiar with the designated donor
program at AEMC as it existed at the time of plaintiff’s operation. Plaintiff
has already submitted to defense counsel written questions for Turnbaugh
pursuant to Fed. R. Civ. P. 31. He further suggests an acceleration of the time
frames provided in Rule 31 “in the interest of justice.” Plaintiff also asks me
to extend the expert report deadlines “in order to enable [p]laintiffs to avoid
summary judgment.”
This case was originally filed in state court in June, 1998. I issued a
revised scheduling order on January 18, 2000 closing discovery on April 21, 2000
and directing plaintiff to designate experts by May 13, 2000. Plaintiff has
therefore had close to two years to locate and retain an expert in this matter.
I decline to extend this deadline further. It is not my role to keep the claims
of parties alive indefinitely. As I determined above however, this does not mean
that Kotofsky’s claim automatically falls victim to defendants’ summary judgment
motions as an expert is not required to establish a prima facie case of ordinary
negligence.
Plaintiff’s request to reopen discovery is also denied with the exception
that plaintiffs may take the deposition of Beth Turnbaugh through written
questions pursuant to Fed. R. Civ. P. 31. As plaintiff has already submitted
questions for Turnbaugh to defendants, defendants are to submit any questions of
their own to all parties within ten business days of the date of this Order.
Plaintiff will have three business days from the receipt of defendants’
questions to submit any further questions of his own. Ms. Turnbaugh is to have
her responses notarized and returned to all parties with all possible speed.
An appropriate Order follows
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
:
MORRIS KOTOFSKY et al. : CIVIL ACTION
:
v. :
:
ALBERT EINSTEIN MEDICAL CENTER : NO. 98-3416
and JOHN BELL-THOMPSON, M.D. :
ORDER AND NOW, this day of October,
2000, in consideration of defendant John Bell-Thompson’s motion for summary
judgment, defendant Albert Einstein Medical Center’s motion for summary
judgment, plaintiff’s response thereto, and plaintiff’s motion to reopen
discovery and revise the scheduling Order dated January 18, 2000, it is ORDERED
that:
1. Defendant John-Bell Thompson’s motion for
summary judgment is DENIED.
2. Defendant Albert Einstein Medical College’s
motion for summary judgment is
DENIED.
3. Plaintiff’s motion to reopen discovery
and revise the scheduling Order is DENIED in
part and GRANTED in part.
____________________________________
THOMAS N. O’NEILL, JR., J.
1. Janice Kotofsky asserts a claim for loss of consortium as
a result of the alleged injuries to her husband. Her claims are wholly
derivative of his and I will hereafter refer to Mr. Kotofsky as plaintiff.
2. The case was removed by defendant Red Cross under
American National Red Cross v. S.G., 505 U.S. 247 (1992)(holding that the
Red Cross’ charter creates original federal jurisdiction over suits involving
the Red Cross).
3. This case has been before me for over two years and a
considerable amount of time and expense have been invested by the remaining
parties. Despite the absence of the Red Cross, upon considerations of judicial
economy, convenience, and fairness I will retain jurisdiction of the remaining
pendant state claims in this case. See Hedges v. Musco, 204 F.3d
109, 123 (3d Cir. 2000).
4. In their response to defendants’ motion to dismiss
plaintiff conceded that defendants could not be held liable for failing to
investigate and ensure the blood was free from disease and I granted defendants’
motion as to that claim. I rejected defendants’ arguments that plaintiff’s claim
was barred by Pennsylvania’s “Blood Shield” law, 42 P.S. ? 8333, or that
plaintiff’s claim based on lack of consent should be dismissed because either
(A) defendants had no duty under Pennsylvania law to obtain Kotofsky’s informed
consent or (B) a negligence-based informed consent claim does not constitute a
viable cause of action.
5. Malpractice – “Failure of one rendering professional
services to exercise that degree of skill and learning applied under all the
circumstances in the community by the average prudent, reputable member of the
profession with the result of injury, loss or damage to the recipient of those
services or to those entitled to rely upon them.” Black’s Law Dictionary
959 (6th ed. 1990).
6. Under Pennsylvania law the elements of a cause of action
in negligence are: (1) a duty recognized by law, requiring the actor to conform
to a certain standard with respect to the injured party; (2) a failure of the
actor to conform to that standard; (3) a causal connection between the conduct
and the resulting injury; and (4) actual loss or damage to the interests of
another. See Baer v. Commonwealth of Pennsylvania, 713 A.2d. 189,
191 (Pa. Commw. Ct. 1998).