An Indiana lawyer, in his first in-person appearance before the Pennsylvania Superior Court, successfully argued an appeal that may establish a precedent for the state. The appeal focused on the question of whether a plaintiff or a defendant has the burden of proving negligence or lack of negligence in some lawsuits arising from injuries caused by medical emergencies.
But the issue hasn’t been resolved entirely. The appeal has now been sent on to the Pennsylvania Supreme Court.
Attorney Troy Frederick, with the law firm of Marcus & Mack, in Indiana, argued the appeal in which the Superior Court for the first time recognized the affirmative defense (meaning it must be set forth in an initial pleading) of sudden medical emergency as separate and distinct from the sudden emergency doctrine and established that the party asserting the sudden medical emergency defense must plead and prove the same.
The case started with a 2007 traffic crash in Centre County. A pickup truck driven by Ralph Ralston Sr., 77, crossed a grass median and hit an oncoming car driven by Glenn Shiner. Ralston was pronounced dead at the scene and Shiner was seriously injured.
Witnesses said the driver of the pickup took no evasive actions prior to the collision. State police concurred, finding no physical evidence that Ralston steered or braked to avoid the crash.
An autopsy concluded Ralston suffered a cardiac dysrhythemia, which caused him to become unconscious before the crash.
“The heart attack did not cause his death. He died … of accident-sustained injuries,” Frederick said, adding that Ralston also had significant and poorly controlled hypoglycemia.
“He was really well aware of this” and was especially affected by the condition around lunchtime if he hadn’t eaten, Frederick said. “Doctors told him he had to manage his food a little better. So that was also a contributing factor to the accident.”
The crash occurred about noon, and Ralston had not eaten lunch, according to Frederick.
“It’s a little hard to tell what came first,” Frederick said. “Whether it was a heart attack or whether it was hypoglycemia, he knew that he was having a medical reaction or illness, but continued to drive.”
And that’s the gist of where the negligence action comes from, according to Frederick.
Shiner and his wife filed a personal injury lawsuit, with Frederick as their legal counsel, and the case was headed toward a trial.
Then the executor of Ralston’s estate filed a motion for summary judgment (an attempt to resolve the case before it went to trial), arguing Ralston could not be negligent because at the time of the collision he was unconscious, a fact neither side disputed.
A Centre County judge granted the motion for summary judgment, and attorney Teresa Sachs, of the Philadelphia law firm of Post & Schell, representing the Ralston family defendants, said the county court did so because there was no evidence Ralph Ralston had been negligent.
Frederick then appealed the Centre County court’s decision to the state Superior Court, and the higher court reversed the county court’s ruling.
Frederick, in explaining his argument for the appeal, said if someone in Pennsylvania is going to assert the sudden emergency defense as a shield to a liability claim, they have to prove they didn’t cause the emergency and they must also prove the emergency was sudden and unforeseen. An example, he said, would be if a utility pole unexpectedly falls across the road in front of a driver, and to avoid the pole, the driver swerves toward the side of the road and strikes a pedestrian. The driver would not be considered negligent because he was confronted with a sudden emergency.
“What the defendants in this case were trying to do is get that exception for a medical problem,” Frederick said. “That struck me, because in Pennsylvania, if a plaintiff is injured and we go to trial, we have to prove with a doctor’s expert report our medical assertions or our medical injuries. And in this instance, and the way it’s been going in Pennsylvania, the defendants didn’t have to do that. All they had to say was, ‘Oh yes, this happened.’ And plaintiffs can’t do that in Pennsylvania, so why should defendants get to do that?”
Frederick in his appeal argued that defendants in such cases should also have to substantively prove their defense.
“They (the Ralston defendants) should have got an expert who said that beyond a reasonable degree of medical certainty, that (Ralston’s) bout of unconsciousness was sudden and unforeseen and not caused by him,” Frederick said.
In the appeal, Frederick contended Ralston was aware of his medical condition and continued to drive. One medical expert who testified for the plaintiffs had examined microscopic tissue slides of the decedent’s heart, and based on the physical changes he observed between those slides, testified Ralston had experienced oxygen deprivation for 12 to 24 hours before the collision.
“He knew something (medical) was going on,” Frederick said.
Attorney Sachs, representing the Ralston family, disagrees and contends the Superior Court erred in its handling of the appeal. She has asked the state’s Supreme Count to take the case on appeal.
Sachs wrote in her petition to the Supreme Court that the Superior Court, by reversing the Centre County court decision, created two significant questions about Pennsylvania law.
The first question is whether a defendant’s “sudden medical emergency” relieves a plaintiff from the usual requirement of proving negligence. The Superior Court panel concluded that in a “medical emergency” case, the burden shifts to the defendant (in this case the relatives and estate of a deceased driver) to prove that the driver was not negligent. The Superior Court’s decision contradicts Pennsylvania law, Sachs contends, and would place defendants in the “impossible position of having to prove a negative.”
Sachs argues that as in any other negligence case, a plaintiff in a “medical emergency” case must prove the elements of negligence, namely that the defendant acted unreasonably in the face of some foreseeable risk, and that his unreasonable conduct caused the accident.
Sachs described the plaintiff’s microscopic autopsy findings as “speculation,” saying the evidence was insufficient to prove Ralston ever experienced signs or symptoms associated with coronary artery disease.
The second question, according to Sachs, is whether “sudden medical emergency” is a new Pennsylvania affirmative defense that must be specifically raised as such. The Superior Court conceded that “sudden emergency” is not an affirmative defense, but held that “sudden medical emergency” is an affirmative defense that must be pleaded at the outset of a case.
The Superior Court, Sachs contends, thus created new law that is contrary to the existing law from that court and contrary to the principle that affirmative defenses seek to avoid negligence, unlike the situation in Shiner vs. Ralston, where negligence is denied.
Sachs said the fact that both sides agree Ralston was unconscious at the time of the collision makes this personal injury lawsuit somewhat unusual.
“There are certainly cases out there where someone will say, ‘I must have lost consciousness.’ And the other side will say, ‘No, I don’t believe that’s what happened.’ And there’s a debate about whether or not they really did or did not lose consciousness or did they just drive negligently? That’s not this case,” Sachs said. “I have not ever seen anyone try to argue that a situation like this was negligent before.”
A decision on whether the state’s Supreme Court will even agree to consider Shiner vs. Ralston on appeal is likely months away.
If the Supreme Court does not take the case on appeal, the ruling of the Superior Court will stand.
“Then it’s almost like a reset button, and we go all the way back to the trial court level … we would pick a jury and have a trial,” Frederick said. “Just because we won at this little segment of the case doesn’t mean we have actually won for our client yet. … It’s been quite the fight.”
Frederick is a member of the board of governors of the Western Pennsylvania Trial Lawyer’s Association, and he was asked by that group to write an article on the Superior Court’s ruling on Shiner vs. Ralston for “The Advocate,” the association’s publication. The article, he said, will be a good opportunity to explain to the bar this recent change in the law.
Frederick, a Punxsutawney native, has been practicing law since 2008 and since May 2009 has been with Marcus & Mack, a firm that specializes in plaintiff’s personal injury cases. Frederick and his wife, Beth Ann, who is also an attorney, and their son, Ethan, 10, live in Indiana.