LANCASTER – A Lancaster health care system and one of its physicians have denied liability for the death of a man who underwent a debridement procedure on his throat, arguing that the MCARE Act and Fair Share Act preclude the plaintiff’s claims.
Wendy B. Smith (as Administratrix of the Estate of Robert Aril Smith, deceased) filed suit in the Lancaster County Court of Common Pleas on May 12, 2022 versus Robert B. Belser Jr., M.D. and Lancaster Otolaryngology (doing business as “Rosenfeld Belser & Davis”). All parties are of Lancaster.
“Robert Aril Smith (date of birth: Jan. 27, 1959) had a history of pulmonary embolism and was on chronic anticoagulation (Xarelto). On July 20, 2020, Mr. Smith presented to defendant practice for an appointment with defendant Dr. Belser. According to the medical records, Mr. Smith complained of a throat/tonsillar problem and dysphagia. Defendant Dr. Belser performed a physical examination, which revealed a very large right tonsil that he noted was concerning for a neoplastic process. Defendant Dr. Belser ordered a CT scan of Mr. Smith’s neck, which was performed on July 22, 2020,” the suit said.
“The CT scan was interpreted to reveal a ‘large, infiltrative, trans-spatial mass centered on the right tonsillar pillar and right soft palate...findings are suspicious for metastatic squamous cell carcinoma.’ A biopsy was subsequently performed, and Mr. Smith was diagnosed with Stage III HPV positive tonsillar cancer. The medical records note that with combined chemotherapy and radiation, the treatment goal for Mr. Smith’s cancer was curative. Mr. Smith began chemotherapy and radiation therapy in September 2020. On Oct. 23, 2020, Mr. Smith presented to defendant practice for a follow-up appointment with defendant Dr. Belser.”
At that time, defendant Dr. Belser noted the decedent had two days left of radiation therapy and his tumor had disappeared. Meanwhile, three months later, on Jan. 21, 2021, Mr. Smith presented to the Ann B. Barshinger Cancer Institute for a follow-up appointment with radiation oncologist, Pamela Boimel, M.D.
Dr. Boimel noted that Mr. Smith was “still recovering from the side effects of treatment with a right pharyngeal wall ulcer and thrush”, believing that the decedent’s diabetes and nutrition issues during and after his treatment were contributing to some delayed healing. As a result, Dr. Boimel prescribed Nystatin and recommended Mr. Smith return to Dr. Belser.
“On Jan. 27, 2021, Mr. Smith presented to defendant practice for an appointment. On physical examination, defendant Dr. Belser noted that Mr. Smith had a right-sided palate defect and yellow debris on the posterior pharyngeal wall up into the nasopharynx. According to the medical records, defendant Dr. Belser suspected that the debris was necrosis, and he debrided the area. Defendant Dr. Belser recommended follow-up in one month. On Jan. 28, 2021, at approximately 8:49 p.m., Mr. Smith presented to the Lancaster General Hospital Emergency Department with complaints of bleeding from his mouth,” the suit stated.
“According to the medical records, Mr. Smith reported that he ‘had procedure with ENT yesterday, where they scraped the back of my throat for cells’ and noted bleeding 30 minutes ago while sitting in his house, that he was on Xarelto and was currently undergoing treatment for throat cancer. Mr. Smith was admitted to the hospital for treatment. Prior to being moved into a treatment room, Mr. Smith had ‘a massive exsanguinating hemorrhage from the mouth. Mr. Smith went into cardiac arrest. Cardiopulmonary resuscitation was initiated, but was ultimately unsuccessful. Mr. Smith died on Jan. 29, 2021, at 2:21 a.m. The medical records and death certificate list his cause of death as exsanguination secondary to hemoptysis in the setting of tonsillar cancer and anticoagulation use.”
The suit said that given Mr. Smith’s medical history and use of anticoagulation medication, the defendants were negligent in performing a debridement procedure on the decedent, which the litigation alleges led to his untimely death.
In a July 18, 2022 answer to the complaint (along with new matter), the defendants hereby denied responsibility for Mr. Smith’s death. From there, the plaintiff replied to defendants’ new matter on Aug. 8, 2022 denying it in its entirety.
After the plaintiff filed an amended version of the complaint on Jan. 23 – which added Dr. Colleen H. Brent, Lancaster Emergency Associates and Lancaster General Hospital as defendants – defendants Belser and Lancaster Otolaryngology filed an answer to the newest iteration of the suit, which once again denied its allegations.
“Plaintiff’s amended complaint, in whole or in part, fails to state causes of action cognizable under Pennsylvania law as against answering defendants. To the extent applicable, or to the extent that it may later prove to be applicable, answering defendants hereby plead the statute of limitations and the statute of repose referable to personal injury actions in Pennsylvania to preserve these affirmative defenses for the record. At all times and for all purposes relevant to the events set forth in plaintiff’s amended complaint, Dr. Belser acted appropriately and in accordance with standards of otolaryngology care applicable under similar circumstances and he in no way negligently caused, negligently contributed to cause or negligently increased the risk of causing any injury or damage to plaintiff or plaintiff’s decedent,” per the answer’s new matter.
“Answering defendants did not negligently cause, negligently contribute to cause, or negligently increase the risk of causing any injury or damage to plaintiff or plaintiff’s decedent. To the extent that plaintiff and/or plaintiff’s decedent sustained any injury or damages as alleged in the amended complaint as a function of any alleged negligence, any such negligence being specifically denied, any such negligently caused injury was the result of acts or omissions of third persons other than answering defendants and for whom answering defendants is in no way liable or responsible. Answering defendants hereby plead all rights and defenses available under the Medical Care Availability and Reduction of Error Act. Plaintiff’s claims may be barred and/or limited as against answering defendants by the provisions set forth in Pennsylvania’s Fair Share Act.”
The answering defendants also pled defenses consisting of the statute of limitations, contributory negligence and/or assumption of the risk, and argued that the plaintiff’s claims for special damages may be reduced and/or limited by any collateral source of compensation and/or benefits received in accordance with the Supreme Court of Pennsylvania’s decision in Moorhead v. Crozer Chester Medical Center.
The Lancaster General Health/Hospital defendants filed an answer and new matter in the case on March 21, denying the plaintiff’s allegations in their entirety.
“To the extent currently applicable or to the extent that it may later become applicable, answering defendant pleads the doctrine of laches to preserve this affirmative defense for the record. To the extent currently applicable or to the extent that it may later become applicable, answering defendant pleads the affirmative defense of the statute of limitations. Answering defendant raises any and all affirmative defenses of the Medical Care Availability and Reduction of Error (MCARE) Act, as a limit/bar to plaintiff’s claims. To the extent currently applicable or to the extent that it may later become applicable, answering defendant pleads accord and satisfaction, immunity and release, in order to preserve these affirmative defenses for the record. To the extent currently applicable or to the extent that it may later become applicable, answering defendant pleads res judicata and/or collateral estoppel, in order to preserve these affirmative defenses for the record,” the hospital’s new matter stated.
“At all times and for all purposes material to the events set out in the amended complaint, answering defendant, and its employees, agents, and ostensible agents, acted appropriately in providing care and treatment to Mr. Smith, which was commensurate with a standard of care applicable under similar circumstances. To the extent Mr. Smith sustained any injury or damages as claimed in the amended complaint, answering defendant, and its employees, agents, and ostensible agents, in no way acted negligently or otherwise caused or contributed to cause any such injury or damage. To the extent Mr. Smith sustained any injury or damage as claimed in the complaint, the injuries and damages claimed by plaintiff are the natural and progressive result of Mr. Smith’s medical conditions, and not the result of any negligence by answering defendant or its employees, agents, and ostensible agents. The complaint fails to state any claim upon which relief can be granted as against answering defendant. To the extent that answering defendant is found liable to plaintiff, answering defendant is entitled to apportionment or a set-off of any damages based on the negligence of another third-party, including by way of apportionment and contribution as provided under the Pennsylvania Fair Share Act.”
The plaintiff responded to the Lancaster General Health/Hospital defendants on March 30, largely not admitting or denying their new matter, but mostly referring to it as conclusions of law to which no response was required.
“This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, it is denied that answering defendant and its agents and/or employees acted appropriately in providing care to plaintiff’s decedent. This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, it is denied that answering defendant and its agents and/or employees were not negligent and did not cause or contribute to plaintiff’s decedent’s injuries,” per the plaintiff’s reply.
“This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, it is denied that the damages claimed by plaintiff are the natural and progressive result of plaintiff’s decedent’s medical conditions. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, it is denied that the amended complaint fails to state a claim upon which relief may be granted as to answering defendant.”
UPDATE
Defendants Colleen H. Brent, M.D. and Lancaster Emergency Associates, Ltd. filed an answer and new matter on May 3, in which they denied the plaintiff’s allegations of negligence.
“Plaintiff’s claims may be barred, in whole or in part, by the applicable statute of limitations. Defendants plead the affirmative defense of release, to the extent the same is or may become applicable. Plaintiff’s causes of actions may be barred in whole or reduced in part by the applicable doctrines of assumption of risk, comparative negligence and/or contributory negligence. Defendants raise all rights, immunities, and damage limitations present in the MCARE Act. Defendants assert all restrictions on joint and several liability as provided in the Fair Share Act,” their new matter stated.
For counts of negligence, vicarious negligence, survival and wrongful death, the plaintiff is seeking damages in excess of $50,000, plus interest and costs as allowed by law.
The plaintiff is represented by Robin A. Jabour and Melissa A. Jabour of Atlee Hall, in Lancaster.
The defendants are represented by Michael M. Badowski and Anthony J. Gabriel of Margolis Edelstein in Camp Hill, Andrew Foulkrod, Eric Lauerman and Victoria Foulkrod of Cipriani & Werner in Lemoyne, plus Katherine B. Kravitz and Elizabeth L. Melamed of Barley Snyder, in Lancaster.
Lancaster County Court of Common Pleas case CI-22-02769
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com