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The Pennsylvania Supreme Court's argument session set to open Oct. 23 in Pittsburgh is filled with novel issues, but attorneys who handle medical malpractice disputes may want to pay special attention.

The justices are set to hear arguments in a handful of high-profile medical malpractice cases that touch on a range of issues, from the possible discovery of emails between hospitals and outside public relations firms, to whether defense attorneys can raise arguments about the potential risks and complications of surgeries when defending their clients.

In total, the justices are set to hear argument in 14 cases, with seven on both Oct. 23 and Oct. 24. Along with the medical malpractice cases, the justices are set to consider the standards for opposing oil and gas drilling projects, the use of hearsay testimony in criminal proceedings and whether Pittsburgh can to force employers to offer paid sick leave.

Medical Malpractice

Beginning on the afternoon of Oct. 23, the high court is scheduled to hear argument in Mitchell v. Shikora, which deals with whether defendants in medical negligence cases should be barred from introducing evidence of a procedure's risks and complications.

The Supreme Court agreed to take up the case in November. In a one-page order, the court specifically agreed to hear arguments about whether the Superior Court's recent holding that a trial court improperly allowed jurors to hear evidence about the risks and complications of a hysterectomy went against a 2015 Supreme Court ruling, which allows evidence of general risks and complications in medical malpractice cases.

The dispute stems from plaintiff Lanette Mitchell's claims against Dr. Evan Shikora, an obstetrical and gynecological surgeon, who performed a hysterectomy on Mitchell in May 2012. According to court papers, midway through the operation, Shikora suspected he had severed Mitchell's bowel. Shikora abandoned the hysterectomy and consulted a general surgeon, who then repaired the bowel. Mitchell sued Shikora, alleging negligence, and later sought to exclude evidence about whether bowel injury was a known risk or complication of the surgery.

In May 2016, a three-judge panel of the Superior Court held that, even though the defendants argued the information was necessary to establish the standard of care, allowing in the evidence was prejudicial to the plaintiffs.

“Acknowledging a liberal threshold to determine the relevancy of such evidence, we nevertheless emphasize that the evidence must be probative of whether defendants' treatment of Mitchell fell below the standard of care,” Senior Judge John Musmanno said in the Superior Court's 12-page precedential opinion.

On Oct. 24, the high court is also expected to hear arguments about whether prelitigation emails between attorneys and a public relations firm should be barred from discovery. The justices are set to take up that issue in BouSamra v. Excela Health.

In January, the high court agreed to consider whether sending prelitigation emails to public relations consultants waives the work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, to qualify as a privileged person.

Last year, a three-judge Superior Court panel determined that emails involving an internal investigation that were sent by a hospital's counsel to a public relations firm were not barred from discovery under either the attorney-client privilege or the work-product doctrine. As part of that ruling, the panel denied efforts by Excela Health, which runs Westmoreland Regional Hospital, to bar discovery of the documents.

Excela Health's attorney, David Strassburger of Strassburger McKenna Gutnick & Gefsky, told The Legal at the time that the issues raised in the case “affect lawyers in all practice areas.”

Yanakos v. UPMC is scheduled to be the final case for the Pittsburgh argument session, and it is set to delve into whether an exception to the Medical Care Availability and Reduction of Error (MCARE) Act's seven-year statute of repose for patients with sponges and scissors left in their bodies should also apply to patients who received problematic organs.

In March, the justices agreed to consider the question, “Does the MCARE statute of repose violate the open courts guarantees of the Pennsylvania Constitution, Article I, Section 11, where it arbitrarily and capriciously deprives some patients of any access to courts, but permits actions by similarly situated patients?”

The plaintiffs have contended that their case should be allowed to proceed under the exemption because the exemption is aimed at protecting plaintiffs who can't learn about the negligence in seven years. However, an Allegheny County judge denied the plaintiffs' challenge to MCARE's statute of repose for injuries caused by foreign objects left in a body, and that ruling was later affirmed by the Superior Court.

Judge Lillian Ransom, who wrote the nonprecedential decision, said leaving a sponge behind after surgery and implanting a problematic organ are not so easily equated.

“Although appellants align themselves with patients in the foreign object classification, the same observation of the durability of evidence cannot be made in other delayed discovery cases,” Ransom said.

Oil and Gas, Criminal Cases and More

The case set to kick off the argument session is expected to shed some light on what kind of evidence municipalities can use if they want to block an oil and gas drilling project.

The case is EQT Production v. Borough of Jefferson Hills, and the justices are set to consider what standards should be applied to objections to land use applications that are based on “firsthand experience with a similar use when the proposed use does not already appear within the municipal borders.” Last year, the Commonwealth Court ruled agreed with a lower court's finding that it is the objectors' burden to show that a proposed unconventional gas well would be detrimental to public health, safety and welfare.

In Pennsylvania Restaurant and Lodging Association v. City of Pittsburgh the justices are set to determine whether the city of Pittsburgh has the authority to force employers to offer paid sick leave and building owners to ramp up emergency response training, and in Butler County v. CenturyLink Communications, the court is set to consider whether a plaintiff can circumvent a state agency's right to enforce a statute by seeking to do so through common-law damages claims.

The justices are also set to consider the use of hearsay testimony in preliminary hearings in Commonwealth v. McClelland, and, in Commonwealth v. Hlubin, the court is expected to delve into validity of DUI charges that stemmed from a potentially illegally convened checkpoint.