In Cosklo v. Moses Taylor Hospital, 07-CV-5484, (C.P. Lacka. Co. September 23, 2016), the Court denied a defendant-obstetrician's motion seeking leave of court, under Pa.R.C.P. 1033, to amend the defendant's responsive pleading to assert the "two schools of thought doctrine" as an affirmative defense.
In this case, the plaintiffs alleged that their newborn child suffered perinatal asphyxia and sustained severe hypoxic ischemic injuries during labor and delivery following the obstetrician's administration of Ancef to the mother, despite her documented allergy to Penicillin. The parents (plaintiffs) also alleged that the healthcare providers failed to properly treat her resulting anaphylactic shock with Epinephrine.
Procedurally, the obstetrician filed his motion seeking leave of court to amend his answer and new matter to include the "two schools of thought doctrine" as an affirmative defense after the discovery period ended, expert reports were exchanged and trial was scheduled. The obstetrician's rationale for asserting the doctrine at this time was that the parents' expert, in his report, challenged the treatment prescribed by him for anaphylaxis.
The obstetrician contended that the two schools of thought doctrine was applicable to the issue of whether the standard of care required the administration of Epinephrine for anaphylaxis in a labor patient in December 2005, and, as such, it was asserted that the physician should be permitted to amend his new matter to assert the two schools of thought doctrine.
In denying the defendant's motion to amend, the court acknowledged that amendments to pleadings are to be liberally allowed as long as the amendment will not cause unfair prejudice to an adverse party or would fail to advance a cognizable claim or defense. The Court held that, to the extent that the parents were challenging the treatment prescribed by the obstetrician for anaphylaxis, the doctrine is applicable if the defense expert has provided factual support for the claim that there are "a considerable number of recognized and respected professionals" who agree with the course of treatment employed by the doctor. However, the Court noted that, in the matter presented, the defense expert report did not state, or even suggest, that a particular school of thought subscribed to by a considerable number of recognized and respected obstetricians supports the obstetrician's decision not to administer Epinephrine. The Court explained that therefore, as phrased, the doctor's pre -trial expert report did not provide notice to the parents that the expert would testify that there was a 'considerable number of recognized and respected' doctors who support the course of treatment that the obstetrician furnished. The Court went on to hold that "absent such a statement, [the plaintiff] would be unfairly surprised by the defendant expert's testimony to that effect and as such, any two schools of thought testimony would be subject to preclusion under Pa.R.C.P 4003.5(c), which indicates that an expert's trial testimony may not exceed the fair scope of his pre-trial report."
Comment: This case reinforces the importance of specifically asserting the two schools of thought doctrine as an affirmative defense in an answer and new matter at the onset of the case. Furthermore, should such a defense be at all anticipated, defense expert reports must be tailored to include the requisite phraseology required of a two schools of thought theory, that "a considerable number of recognized and respected" physicians support the course of treatment provided by the defendant, so as to avoid preclusion of such a defense at the time of trial.