Pennsylvania Appellate Court Rules Spilling Of Acid On Child Would Be Medical Malpractice Claim, Not Ordinary Negligence

The August 9, 2018 non-precedential decision of the Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) ruled that the plaintiff’s allegation that a dermatology physician’s assistant’s (“PA”) alleged spilling of acid on a seven-year-old’s stomach during a dermatological procedure to treat the child’s warts was a medical negligence claim, and not an ordinary negligence claim.

The PA was using trichloracetic acid (“TCA”) to treat the child’s warts. According to the child’s grandmother’s trial testimony, the PA poured TCA into a cup and then used a Q-tip dipped in the cup to swab the areas to be treated. The grandmother testified that the Q-tip “was really wet and drippy and dripped on [her granddaughter’s] stomach” and that the liquid splashed out of the cup when the PA’s hand moved but the grandmother did not know what caused the PA’s arm to jerk to cause the alleged acid splash.

The child subsequently filed a complaint against the PA and her employer, asserting claims of medical malpractice and ordinary negligence. The plaintiff’s attorney subsequently advised the trial court that the plaintiff would not be proceeding on the medical malpractice count in the complaint, and would proceed only on the ordinary negligence count.

At the conclusion of the plaintiff’s case, the trial court entered a nonsuit against the plaintiff, determinating that both counts in her complaint sounded in medical malpractice. The plaintiff filed an appeal.

Pennsylvania Appellate Court Decision

The Pennsylvania Appellate Court stated that one of the most distinguishing features of a medical malpractice suit is, in most cases, the need for expert testimony, which may be necessary to elucidate complex medical issues to a jury of laypersons. The expert testimony requirement in a medical malpractice action means that a plaintiff must present medical expert testimony to establish that the care and treatment of the plaintiff by the defendant fell short of the required standard of care and that the breach proximately caused the plaintiff’s injury. Hence, causation is also a matter generally requiring expert testimony.

In deciding the present case, the Pennsylvania Appellate Court stated that both the ordinary negligence claim and the medical malpractice claim against the PA arose from the medical treatment of the plaintiff. The plaintiff averred the incident took place in the PA’s office, where the PA held herself out to the public as an expert medical care provider in the area of dermatology, dermatologic surgery, and associated treatments. With regard to the ordinary negligence count, the plaintiff averred that the PA was negligent for using TCA on a minor child absent taking proper precautions, adopting policies regarding the use of acid on a minor, and using reasonable care. The plaintiff further averred that the PA was negligent for failing to properly apply the acid and generally acting in a negligent, careless and reckless manner by applying the TCA to the body of the seven-year-old plaintiff.

The Pennsylvania Appellate Court held that the facts averred in the plaintiff’s complaint, and testified to during trial, demonstrate that the plaintiff was injured while undergoing a medical procedure performed by the PA, in her capacity as a physician’s assistant. The Pennsylvania Appellate Court concluded: “We have no hesitation in finding the trial court properly construed [the plaintiff’s] claim to be one of medical malpractice.”

Source Savage v. Jacobson, J-A12017-18.

If you or a family member may be the victim of dermatology malpractice in Pennsylvania or in another U.S. state, you should promptly consult with a medical malpractice attorney in Pennsylvania or in your state who may investigate your dermatology negligence claim for you and represent you in a medical negligence case, if appropriate.

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This entry was posted on Monday, September 3rd, 2018 at 5:24 am. Both comments and pings are currently closed.

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