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Hospital “Incident Reports” must be shown to the Plaintiff/patient and are not protected by Pennsylvania’s MCARE Statute

Maben v. Magee Women’s Hospital of UPMC, No. GD-15-003793 (C.C.P. Allegheny December 12, 2016) Wettick, J.

Allegheny Co., PA.

The case was based allegations that Defendants delayed performing a C-section for close to 7-hours which caused a baby girl to suffer spastic quadriplegia and cerebral palsy.

Prior to the obstetrical nurse’s deposition, we learned that the nurse made several significant changes to the medical record hours after the delivery after it was known that the baby was being transferred from the NICU to Children’s Hospital. These changes included changing her nursing notes from “no accelerations” to “accelerations present”, “minimal variability” to “moderate variability”, adding in that she performed acoustic stimulation, etc. Therefore, during the nurse’s deposition, it was crucial to review the fetal heart monitor tracing with the nurse to ask why she made the changes, to have her point out where the alleged accelerations where, etc.

Yet during the deposition, Defense Counsel would not allow the nurse to look at the tracings or answer any answer any question related to the tracings – essentially making the deposition pointless. When we tried to just show the tracing to the nurse to see if it would refresh her recollection, the nurse would look the other way at the direction of Defense Counsel. We then laid the foundation that the nurse still uses the same fetal heart monitor definitions as she did at the time of delivery, would interpret the tracing the same at the deposition as she did at the time of delivery, etc.; however, Defense Counsel still would not allow the nurse to look at the tracings.

As a result, we then filed a Motion asking the Court to reconvene the nurse’s deposition and order that the nurse be required to look at the fetal heart monitor tracing and answer all questions related to the same.

In another landmark decision further expanding patients’ rights in depositions, Judge Wettick issued an Order and Opinion reconvening the nurse’s deposition, and required the nurse to look at the fetal heart monitor tracing and answer questioned related to the same. In his Opinion, Judge Wettick cited to our prior Lattaker opinion, and held that the nurse must review the tracing – even if she cannot recall what she was thinking at the time of her treatment - because reviewing the tracing would assist her, and the Plaintiffs, in describing the treatment she provided.

In this case, another significant ruling was obtained by us related to incident reports. The nurse also testified that she filled out an incident report following this delivery. UPMC objected to producing the incident report claiming it was protected from discovery by the MCARE Act. Using the prior law made by us in the Lesterick case, we filed a Motion asking the Honorable Robert Colville, who replaced Judge Wettick as the discovery judge, to order UPMC to produce the incident report.

A hearing was held where the issue was argued to Judge Colville. Following the same, Judge Colville issued an Order ruling in our favor and ordering UPMC to turn over the incident report. In turn, UPMC filed a Motion for Reconsideration and another hearing was held. Again however, Judge Colville ruled in our favor and issued an Opinion on this issue, citing to our Lesterick case, and held that the incident report was not protected by the MCARE Act.

Still refusing to the produce the incident report, UPMC filed an appeal with the Superior Court. Prior to the issue being heard by the Superior Court and issuing an Opinion, UPMC dismissed the appeal and settled the case.