Pennsylvania Superior Court Rejects Creative Use of the "Two Schools of Thoughts" Jury Instruction

03.14.19

On February 27, 2019, the Superior Court of Pennsylvania issued an opinion in Sensenich v. Morcos, et al., No. 1679 WDA 2017 finding that, while the "Two Schools of Thoughts" instruction should not have been given to the jury, there was no indication that this erroneous instruction contributed to the defense verdict.

This matter stems from a rather unusual set of facts. Between October and December 2008, plaintiff, Stephen Sensenich, underwent three cardiac catheterization procedures performed by Dr. Morcos at Westmoreland Regional Hospital. It is undisputed that the first stenting procedure was medically necessary as Mr. Sensenich's right coronary artery was ninety percent blocked. However, plaintiff averred at trial that the second and third stenting procedures, which were completed without complication, were not medically indicated, thus constituting a battery.

Before this surgery, in February 2008, Latrobe Cardiology Associates, a general cardiology group owned by Excela Health, began complaining of unnecessary and excessive stenting by physicians at Westmoreland Regional Hospital (the "Hospital"), which was also owned by Excela Health. In 2011, following two Peer Review investigations, Excela Health sent letters to Dr. Morcos' patients advising them that a coronary stent they received during a procedure at the Hospital may not have been medically necessary. Mr. Sensenich thereafter brought suit in the Court of Common Pleas of Westmoreland County against Dr. Morcos, the Hospital, and Excela Health.

Excela Health was sued under a theory of corporate negligence, for which a plaintiff must prove that the corporation knew or should have known that Dr. Morcos was performing unnecessary stenting procedures. In order to refute this claim, Excela Health introduced evidence at trial that there were two generally-recognized approaches to stenting. Some cardiologists adhered to the belief that a single stent should be placed only at the location of the occlusion ("spot stenting"), while others advocated in favor of the use of multiple stents to connect healthy tissue to healthy tissue ("healthy-to-healthy stenting"). Excela argued that Dr. Morcos subscribed to the latter approach, which would explain why the number of stents used at the Hospital was substantially higher than other comparable hospitals. According to the defendant, the existence of two schools of thoughts, i.e., spot stenting versus healthy-to-healthy stenting, undermined plaintiff's claim that Latrobe Cardiology Associates' complaints of excessive stenting at the Hospital placed Excela Health on notice of unnecessary stenting.

At trial, defendants requested that the Two Schools of Thoughts instruction be given, which states that a medical provider has an absolute defense to a claim of negligence when it is determined that the prescribed treatment or procedure has been approved by one group of medical experts even though an alternative school of thought recommends another approach, or it is agreed among experts that alternative treatments and practices are acceptable. The court allowed the Two Schools of Thoughts instruction to be given, but cautioned the jury that it had no application to the specific stenting procedure performed on plaintiff; rather, it was only to be used to inform the corporate negligence claim against Excela Health.

On appeal, the Superior Court found that the Two Schools of Thoughts doctrine was a "red herring" in the instant case. Despite the fact that this litigation turned on whether the placement of stents in plaintiff was medically indicated, defendants managed to shift the focus of litigation to the manner in which the stenting was performed rather than whether the arteries should have been stented at all. The Superior Court felt that the trial court was "seduced by Defendants' novel argument," which improperly allowed defendants to misuse the Two Schools of Thoughts doctrine to negate notice to Excela Health of medically unnecessary stenting procedures being performed at its hospital. In finding that the Two Schools of Thoughts doctrine had nothing to do with whether Excela had the requisite notice of the unnecessary stenting procedures, the Superior Court held that the trial court erred in issuing the Two Schools of Thoughts instruction to the jury.

Comment: While the Defendants herein chose a rather novel way to utilize the Two Schools of Thoughts doctrine in the setting of a corporate negligence claim, this recent Superior Court ruling makes it clear that the manipulation of the Two Schools of Thoughts doctrine to deflect attention away from the issues at hand was improper.

For more information, please contact Caitlin J. Goodrich at cgoodrich@wglaw.com or 267.295.3367.

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Lexi Burchmore
267.295.3377
lburchmore@wglaw.com

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