September 11, 2026 by matray

A Philadelphia judge has urged the Pennsylvania Superior Court to uphold a $124.2 million medical malpractice judgment arising from a birth injury, rejecting challenges to the jury’s causation finding, its $106.1 million future-care award and its decision to hold a hospital vicariously liable even though two individually named obstetricians were cleared of negligence.

The latter issue could prove particularly significant because the trial court relied heavily on Hagans v. Hospital of the University of Pennsylvania, a decision the Pennsylvania Supreme Court recently agreed to review (see MLM, September 2026).

In a 71-page opinion, Philadelphia County Court of Common Pleas Judge Caroline Turner defended the judgment entered in favor of Jasmine Pagan, Jose Finley and their minor son, identified as K.F., against Albert Einstein Medical Center, Einstein Pediatrics at Holland and pediatrician Dr. Kavita Gupta-Shah.

The defendants are appealing under Superior Court Nos. 1935 EDA 2026 and 1938 EDA 2026.

The lawsuit arose from K.F.’s December 2018 birth at Albert Einstein Medical Center. According to Turner’s opinion, plaintiffs’ obstetrical expert Dr. Howard Mandel testified that K.F. suffered head trauma during the birth process and that a decision to proceed with a cesarean section at approximately 8 a.m. more likely than not would have avoided the trauma.

Months later, imaging revealed bilateral subdural hemorrhages with mass effect, and K.F. underwent emergency neurosurgical treatment.

Following a March trial, the jury returned a $108.6 million verdict, including $106.1 million in future medical expenses. Turner subsequently added approximately $15.6 million in delay damages, producing a molded verdict of $124,187,697.35.

Vicarious Liability Question Echoes Hagans

Among the defendants’ principal appellate arguments is that the evidence was insufficient to impose vicarious liability on Albert Einstein Medical Center because the jury found two individually named obstetricians, Drs. Cheryl Yondorf and Aishat Olatunde, not negligent.

Turner rejected that argument, relying significantly on the Superior Court’s decision in Hagans.

She said the relevant question was whether the plaintiffs presented sufficient evidence that an Einstein employee or agent was negligent while acting within the scope of employment, not whether the jury returned an adverse verdict against a particular employee.

The plaintiffs’ case extended beyond Yondorf and Olatunde to resident physicians and labor-and-delivery nurses. The alleged conduct included labor management, administration and readministration of Pitocin, fetal monitoring and the failure to move to cesarean delivery at approximately 8 to 8:30 a.m.

Turner concluded the evidence permitted jurors to find negligence by Einstein personnel while finding Yondorf and Olatunde individually not negligent. The verdict sheet broadly asked whether Einstein, acting through its obstetric physicians, residents and nurses, had fallen below the applicable standard of care.

That reasoning closely tracks Hagans, where the Superior Court held that a jury need not make an express negligence finding against each individual provider before imposing vicarious liability on a hospital when the evidence establishes negligent conduct by hospital agents.

That precedent, however, is now before the Pennsylvania Supreme Court.

As MLM reported last month, the Supreme Court agreed July 29 to review a record $207.6 million judgment against the Hospital of the University of Pennsylvania in Hagans. One question is whether a hospital may be held vicariously liable when providers whose conduct allegedly caused the injuries were named as defendants but the jury was not required to determine whether any particular provider was negligent.

Turner said Hagans “directly addresses” Einstein’s vicarious-liability argument, meaning the Supreme Court's eventual ruling could have implications for the legal theory supporting the Einstein judgment.

Judge Rejects Causation Challenge

Einstein also argued the plaintiffs failed to establish the cause of K.F.’s injury to the required degree of medical certainty because Mandel identified three possible mechanisms for the birth trauma but could not identify which actually occurred.

Turner disagreed.

Mandel testified that the injury could have resulted from forceps used for delivery, forceps used to rotate or position K.F., or pressure from a physician’s hand. Turner distinguished uncertainty over the precise physical mechanism from uncertainty over whether traumatic injury occurred.

She said Mandel tied the injury to the traumatic vaginal birth process and testified that an appropriately timed cesarean section would have avoided it, providing sufficient evidence for the jury to resolve causation.

$106.1M Future-Care Award Defended

The defendants also challenged the $106.1 million future-medical award as speculative, inadequately supported and excessive given K.F.’s present functioning.

Turner again sided with the plaintiffs.

Pediatric neurologist Dr. Daniel Adler testified that K.F.’s neurological and developmental impairments were permanent and endorsed the life-care plan as fair, reasonable and necessary. Neuropsychologist Dr. Susannah Hughes also reviewed the plan and agreed with its future-care recommendations. Certified life-care planner Alex Karras organized and priced the recommended care.

The defense emphasized evidence that K.F. currently walks, talks, attends school, feeds himself, takes no medication and receives limited supplemental instruction.

Turner said those facts did not undermine expert testimony concerning his lifetime needs. Evidence showed language deficits, poor coordination, permanent brain injury, low intellectual functioning and an inability to make independent decisions involving safety and activities of daily living.

Economist Dr. Thomas Borzilleri projected approximately $14.25 million for a nonresidential care plan and $106.84 million for residential care. The jury’s $106,144,132 award closely tracked the residential-care projection, which Turner said provided a rational evidentiary basis for the verdict.

She also rejected remittitur, again citing Hagans, where the Superior Court upheld a future-medical award exceeding $101 million and emphasized that an award’s size alone does not establish excessiveness.

Other Challenges Rejected

Turner also defended several evidentiary rulings, including excluding a Social Security disability evaluation that produced a higher IQ score for K.F. and evidence concerning an allegation that he suffered nonaccidental head trauma years after his birth injury. She found the latter allegation unsubstantiated and unsupported by expert testimony connecting it to the permanent brain injury at issue.

The judge also rejected the defendants’ challenge to delay damages on the future-medical award. She concluded Pennsylvania precedent permits Rule 238 delay damages on future medical expenses and that the MCARE Act’s present-value requirement applies to calculating attorney fees and costs, not Rule 238 damages.

The appeals now place the $124.2 million judgment before the Superior Court.

September 11, 2026 by matray

Physicians’ concerns about malpractice lawsuits contribute to unnecessary testing, higher healthcare spending and potential harm to patients, according to a new Milliman Inc. report examining the forces driving the U.S. healthcare system.

The August report, The Complex Mechanisms Underlying U.S. Healthcare: Dynamics That Drive Our System, estimates that defensive medicine accounts for roughly 2% to 3% of total U.S. healthcare expenditures. One analysis cited by Milliman found that 2.9% of hospital spending was clearly defensive and another 10% potentially fell into that category.

In the section titled “Malpractice & Defensive Medicine: How Liability Concerns Drive Healthcare Costs in the United States,” Brad Schliesmann, ASA, MAAA, JD, a senior actuarial manager at Milliman, wrote that U.S. physicians face a combination of legal, financial, reputational and cultural incentives to practice medicine from a “just in case” perspective.

The civil liability system makes large jury awards possible, while the fee-for-service payment model allows insurers and other payers to absorb the cost of additional testing rather than physicians, the report said. Public rating systems can heighten physicians’ concerns about reputational damage, and medical training may reinforce the belief that ordering too many tests is safer than ordering too few.

Those pressures can lead physicians to test for rare conditions or unusual presentations that fall outside established standards of care. Although such exceptions can be medically significant, routinely searching for them can generate substantial costs.

Malpractice insurance premiums add to the economic burden. The report noted that neurosurgeons in some states face annual premiums exceeding $400,000. A study cited by Milliman estimated that defensive medicine and malpractice insurance premiums together accounted for 2.4% of national health spending, or about $56 billion annually, as of 2010.

The consequences extend beyond spending, according to the report. Unnecessary imaging can expose patients to radiation, false-positive results and anxiety, while unneeded procedures carry the risk of complications without corresponding clinical benefits. Liability concerns also may cause physicians to avoid high-risk patients, potentially delaying needed treatment and worsening geographic disparities in access to care.

Milliman highlighted several approaches for reducing those costs and risks.

New Zealand replaced tort-based malpractice litigation with a publicly funded, no-fault compensation system under its 1972 Accident Compensation Act. The system sharply reduced legal expenses and largely eliminated incentives for routine defensive testing while maintaining relatively high patient satisfaction with compensation, the report said.

Communication-and-resolution programs may provide another path. Such programs encourage early disclosure, apologies and negotiated compensation after adverse events. The University of Michigan Health System reduced liability costs by 41% and new claims by 65% within four years of implementing one, according to research cited in the report.

Johns Hopkins similarly found that training physicians in risk communication, shared decision-making and disclosure reduced defensive ordering and malpractice claims among participating clinicians over five years.

Milliman said no single reform is likely to eliminate defensive medicine. It suggested combining legal safe harbors and other tort reforms with apology programs, alternative dispute resolution and clinician training intended to address risk aversion.

Such an approach could help physicians focus more closely on patients’ needs and less on protecting themselves from litigation, the report concluded.

September 11, 2026 by matray

The 2nd U.S. Circuit Court of Appeals ruled that the PREP Act shielded a physician from malpractice claims arising from his prescription of prednisone to treat a COVID-19 patient who later died from complications of a perforated ulcer. The court found the drug was a covered countermeasure with a sufficient causal connection to the patient’s death to trigger federal immunity. It also upheld dismissal of a Connecticut Unfair Trade Practices Act claim, finding the allegations amounted to medical malpractice rather than an actionable business or entrepreneurial practice.

Case: Kory v. Waters, No. 25-76(L), 08/26/2026, published.

Facts: Edward James Waters contracted COVID-19 in November 2021. He sought treatment from Dr. Pierre Kory in December 2021.

Kory allegedly held himself out as a counter-culture expert regarding COVID-19 treatment and had a tele-health practice for treating patients remotely.

At around the same time that he contracted COVID-19, Waters experienced a flare-up of gout and was treated with a drug called prednisone, which is a corticosteroid. Kory was aware that Waters had recently taken prednisone. Nevertheless, Kory prescribed Waters additional prednisone to treat his COVID-19 infection, along with ivermectin, spironolactone and dutasteride.

Despite Kory’s treatments, Waters’ condition worsened and he was admitted to the hospital a week later. Waters was hospitalized for four days and was treated with additional corticosteroids.

He was also given a proton pump inhibitor, which is used to counteract the risk of developing peptic ulcer disease through a protracted course of high dose corticosteroids.

After he was released from the hospital, Waters’ condition improved. Kory then prescribed another round of prednisone, which Waters was instructed to take after the initial prescription from the hospital ran its course.

Kory did not personally review the details of Waters’ hospitalization and treatment before issuing the prescription. He also did not prescribe a treatment, such as a proton pump inhibitor, to mitigate the harmful side effects of the prednisone.

In late December, Waters returned to the hospital with abdominal pain and abdominal distension. Doctors suspected a perforated ulcer and confirmed their suspicions through an emergency exploratory laparotomy.

Waters later died as a result of multiple organ failure.

Procedural history: The administrator of Waters’ estate sued Kory for negligence, a lack of informed consent in Waters’ treatment, and violations of the Connecticut Unfair Trade Practices Act.

The estate filed suit in a Connecticut state court, and Kory removed the case to the District of Connecticut based on diversity. Kory then moved to dismiss the claims based on the immunity provided in the Public Readiness and Emergency Preparedness Act as well as on a theory that the complaint failed to state a viable CUTPA claim.

The trial court judge dismissed the CUTPA claim but concluded that PREP Act immunity did not apply and denied the motion to dismiss as to the remaining claims.

Waters appealed the dismissal of the CUPTA claim.

Analysis: The U.S. 2nd Circuit Court of Appeals ruled that the denial of a motion to dismiss on PREP Act immunity grounds is an immediately appealable collateral order.

The court noted the PREP Act bestows complete immunity from suit, Kory’s PREP Act immunity defense is completely separate from the merits of the estate’s claims, and the entitlement it bestows is “effectively lost” if the defendant is made to face the burdens of litigation making the denial of a motion to dismiss “effectively unreviewable on appeal from a final judgment.”

The court said the dismissal of the estate’s CUTPA claim is also reviewable since it is distinct from the estate’s remaining claims, the trial judge made a substantive determination that the estate’s allegations are not cognizable under CUTPA, and reviewing the claim along with the collateral appeal of the PREP Act immunity issue allows for the entirety of the judge’s order to be reviewed at once.

The PREP Act provides broad immunity from liability for a “covered person” from all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure during a public-health emergency, the court said.

A “covered person” is “a person or entity that is . . . a qualified person who prescribed, administered, or dispensed [a covered] countermeasure,” the court said. A “qualified person” includes “a licensed health professional or other individual who is authorized to prescribe, administer, or dispense [covered] countermeasures under the law of the state in which the countermeasure was prescribed, administered, or dispensed.”

A “covered countermeasure” is any antiviral, drug, biologic, diagnostic, device, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19.

The court said Kory was a covered person because he is a licensed health professional authorized to prescribe, administer, or dispense covered countermeasures in Connecticut since he held a current license in good standing in New York and Wisconsin.

Kory also used a covered countermeasure to treat Waters, the court said, as the estate conceded prednisone is a covered countermeasure under the PREP Act.

The court said the covered countermeasure had a sufficient causal relationship with Waters’ death to trigger immunity as well, as the estate alleged Kory “prescribed an unreasonably high dose of prednisone and did so without proper consideration for gastrointestinal protection.”

The PREP Act does not require that a covered countermeasure be the sole cause of an alleged loss, the court said, as nothing in the act’s text indicates that Congress contemplated such a narrow causal tie between the use or administration of the covered countermeasure and the loss alleged.

Instead, the court said, the PREP Act’s text “makes clear that a wide range of claims based on the use or administration of covered countermeasures are barred.” The court said there just needs to be “some factual causal connection to the ultimate loss.”

Here, as alleged, the prednisone directly and foreseeably caused the ulcers that perforated and led to Waters’ death, the court said. Thus, the prednisone was allegedly both a factual and proximate cause of Waters’ death.

“We have no trouble concluding that such allegations more than trigger the PREP Act’s immunity provision, and therefore, Kory is entitled to immunity,” the court said.

The court further said the judge properly dismissed the estate’s CUTPA claim on the merits.

CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” the court said.

“Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation,” the court explained. “[T]he touchstone for a legally sufficient CUTPA claim against a healthcare provider is an allegation that an entrepreneurial or business aspect of the provision of services aside from medical competence is implicated, aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel.”

Here, the CUTPA claim was premised entirely on Kory’s medical treatment of Waters, the court said. The sole allegations relating to the entrepreneurial or business aspect of Kory’s medical practice explain that Kory was overly focused on growing his brand and business, and that “he could not devote adequate time to providing patients such as the plaintiff with proper medical care.”

The court said such an allegation was “nothing like the cases in which Connecticut courts have recognized viable CUTPA claims against medical professionals.” Where claims are premised on the notion that a component of the defendant’s business or entrepreneurial efforts weighed on the care that defendant was able to provide to the plaintiff, Connecticut courts have generally concluded that such claims are barred as recast medical malpractice claims, the federal appellate court said. The court therefore said the dismissal of the estate’s CUPTA claim was appropriate.

Disposition: Reversed in part and remanded. To read the court’s decision, click here.

September 11, 2026 by matray

Rising claim severity is driving tougher underwriting, higher prices and increased pressure on healthcare organizations to retain more risk, according to Gallagher’s “Healthcare Market Report: Summer 2026.”

Although medical liability claim frequency has generally stabilized or declined, the cost of individual claims continues to increase, reshaping the market for hospitals, health systems and physician organizations, the report said.

Nationally, the average paid physician medical professional liability claim now exceeds $470,000, nearly double the average recorded in the early 2000s. Average claims frequently exceed $650,000 in higher-severity states, including Illinois, New York, Iowa and Georgia.

Verdicts exceeding $10 million also have returned to pre-pandemic levels following the reopening of courts, with no sustained moderation in jury behavior since the COVID-19 pandemic, Gallagher said.

The report attributed the trend to social inflation, increasingly aggressive plaintiffs’ attorneys and the expansion of third-party litigation financing, which can support longer and more expensive litigation. Legislative changes, evolving judicial interpretations and plaintiff-friendly venues also have made it more difficult for insurers to predict and price future losses.

Hospital professional liability insurers are responding by reducing available limits, raising attachment points, increasing prices and exercising tighter control over aggregate exposures, according to the report. Healthcare systems also face pressure to accept higher deductibles and self-insured retentions, particularly when they operate in difficult venues, have unfavorable loss histories or are experiencing substantial exposure growth.

Some insurers have adopted minimum underwriting thresholds intended to prioritize long-term profitability over premium growth, leading them to contract their books of business.

Gallagher said birth injuries and other obstetrics-related claims remain the largest individual drivers of hospital professional liability losses. The growing complexity of medical care and rising patient acuity also increase the likelihood that adverse events will result in permanent impairment or death.

Sexual misconduct and abuse allegations have become another significant source of loss because they can produce uncapped damages and reputational harm, the report said. Broader interpretations of noneconomic damages and the invalidation or increase of statutory damage caps in some states also are pushing claim values higher.

The physician medical liability market remains generally stable but cautious. Rate increases imposed since 2017, favorable reserve development and stronger investment income have modestly improved insurers’ financial positions, despite the industry’s inconsistent underwriting profitability over the past decade.

Capacity remains available for well-managed physician organizations, although underwriting is selective and some carriers continue to seek rate increases or structural changes in high-risk jurisdictions, Gallagher said. The report advised healthcare organizations to begin renewals early, carefully assess limits and retentions, maintain strong risk-management programs and adopt proactive defense strategies.

Market conditions could stabilize over the next several years, but Gallagher said that outlook depends largely on whether the growth in claim severity begins to moderate.