By Zack Needles
Of the Legal Staff
On Friday, I posted a blog item, "Reporter's Notebook: The Big Case Hardly Anyone's Talking About" wondering why more attorneys weren't taking more notice of a recent en banc state Superior Court panel that issued what has the potential to be a landmark case in the largely undeveloped area of "preconception torts." I mentioned in that post that I had already written about the case, and I was working on a follow-up piece to get perspective on the issue from med mal attorneys.
Today, that article hit the newsstands (both virtual and physical).
According to Jonathan B. Stepanian, a professional negligence defense attorney in the Hershey office of McQuaide Blasko Attorneys, "If I'm somebody who wants to use this decision and rely on it, I can look at it and say the court has extended the duty of care to non-patients but not to the public at large, so it's somewhere in between. I can use that case and take it however far out I can go."
Stepanian added that he'd be "very surprised if the Supreme Court doesn't take this up on appeal."
Gary M. Samms, a medical malpractice defense attorney at Obermayer Rebmann Maxwell & Hippel in Philadelphia, agreed with Stepanian's take.
"This is a significant expansion of the duty requirement placed on physicians," he said. "Whereas previously the only duty imposed upon the physician to a third party was involving communicable diseases or contagious diseases, this extends that spectrum tenfold."
Judge John L. Musmanno, writing for the majority and affirming Luzerne County Common Pleas Court Judge Hugh F. Mundy's ruling in Matharu v. Muir, noted that Pennsylvania courts have typically only extended a physician's duty to nonpatient third-parties in cases involving communicable diseases, as the state Supreme Court did in the 1990 case DiMarco v. Lynch Homes-Chester County Inc.
But, Musmanno said, a woman's future, unborn child qualifies as a "readily foreseeable, third-party beneficiary of the physician-patient relationship."
Check out the rest of the article here, and send me an e-mail to let me know what you think: Will the case be taken up on appeal? Will it open doors that it didn't mean to open? Or do you not see it as much of a threat? Either way, tell me what you think!
Zack Needles is a reporter for The Legal. He can be contacted at ZNeedles@alm.com or 215-557-2493. Follow him on Twitter at ZNeedlesTLI.
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