Pennsylvania Record

Friday, December 13, 2019

Superior Court affirms $3.3M judgment in malpractice lawsuit against Wilkes-Barre Hospital

State Court

By Charmaine Little | Jul 30, 2019

Pennsylvania Superior Court Judge Anne E. Lazarus |

HARRISBURG -- The Superior Court of Pennsylvania affirmed July 19 a jury's verdict against Wilkes-Barre Hospital Company LLC in a medical malpractice lawsuit.

The hospital appealed from the Court of Common Pleas of Luzerne County, which ruled last year in favor of Frederick Macosky and Sharon Macosky in their lawsuit against the hospital. They sued in March 2016, alleging negligence, vicarious liability, corporate negligence and loss of consortium against the hospital, cardiologist Dr. Mallikarjun Udoshi, (who has since passed away) and Udoshi’s practice, MSUR MD Associates PC, along with the Wilkes-Barre General Hospital Heart and Vascular Institute (HVI).

The Superior Court has affirmed that ruling.

The Macoskys sued after Frederick Mackosky had a stress echocardiogram (EKG) at HVI to be tested due to his family history of coronary artery disease in January 2014. His EKG was normal but in December 2015, Macosky went to the Wilkes-Barre emergency room because he was having shortness of breath. 

He was diagnosed with non-ischemic cardiomyopathy and had a cardiac catherization. He was also put on a wearable defibrillator, also known as a LifeVest. 

The couple sued for negligence, stating the defendants' slackness during his testing made his heart condition even worse. The lower court sided with the Macoskys and said Udoshi was 80 percent negligent and the hospital was 20 percent negligent. The Macoskys were awarded $3,364,017.40. The hospital appealed and asked for a new trial and judgment notwithstanding the verdict (JNOV).

On appeal, the hospital said the Macoskys have to provide an expert witness that proves a hospital didn’t follow its standard of care, and that the failure to do so is what caused the harm. The court called out the hospital for overlooking the testimony that it’s own employee gave, that the hospital, not a cardiologist, was the party responsible for sending an EKG test to the right doctor. Considering this, the court affirmed the denial of JNOV.

The hospital also argued that the lower court should not have given the jury the instruction that says, “it is well settled that a hospital staff member or employee has a duty to recognize and report abnormalities in the treatment and condition of its patients,” according to the decision. 

The hospital said this instruction was not correct and hints at negligence. But the court wasn’t moved. It pointed out, “The trial court did not abuse its discretion in instructing the jury that under Pennsylvania law, a hospital has a duty to report abnormalities in a patient’s condition.”

The hospital also took issue with the lower court taking into account Frederick Macosky’s future medical expenses as evidence. During the trial, the Macoskys showed that the average cost for a LifeVest was $732,302 and $1,834,034 for a heart transplant. The hospital said this was improper considering there wasn’t an expert medical testimony that said the treatment would even be needed. 

But the court disagreed. It explained that there was testimony concerning the failure to find Macosky’s heart issues, and the failure to do so boosted the risk Macosky ultimately had with his heart health, meaning allowing future expenses was fine.

Finally, the court also didn’t accept the hospital’s argument that the lower court should not have kept Frederick Macosky’s history of alcohol consumption. Macosky’s physician revealed that he had “heavy alcohol intake” for years, and that this should be taken into account when considering all of his health issues as a whole.

The court said the bottom line is that Macosky argued negligence after the defendants allegedly misreported or misunderstood his heart condition. The idea of how he got the heart condition is irrelevant, the Superior Court ruled, and it backed the lower court’s ruling.

Judge Mary P. Murray wrote the opinion. Judges Anne E. Lazarus and Maria McLaughlin concurred.

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