Defense Verdict for Family Doctor and Practice in Montgomery County

by | Aug 20, 2012 | Medical Malpractice, Montgomery County, Successes

Tracie A. Vizza obtained a defense verdict for a family doctor and his practice, in Montgomery County, Pennsylvania. The case involved a 32 year old man who died from massive, bilateral pulmonary emboli during a visit to a local hospital. A week prior to his trip to the hospital, the decedent called his family doctor’s office, with complaints. A nurse at the practice acted as an intermediary between the patient and the doctor. The doctor prescribed antibiotics for the patient, as well as cough medication and Tylenol, which was noted in the chart. None of the patients complaints were documented in the chart, nor was a diagnosis. Further, the nurse passed away in the interim. The doctor had no recollection of what complaints were relayed to him via his nurse. The decedent’s wife testified that the complaints included significant, recurrent shortness of breath and recurrent chest pain, Seven days later, the patient presented to the emergency department of a local hospital with complaints of shortness of breath and passed away 7 hours later. An autopsy revealed bilateral, massive pulmonary emboli.

Plaintiff’s theory was that the decedent had been suffering from showers of pulmonary emboli as long as a month prior to his death. Plaintiff based this theory on the fact that the decedent had called his family doctor’s office two weeks prior to the telephone call at issue, with complaints of shortness of breath and rib cage pain, and was told to come into the office. The decedent did go to the doctor’s office and get examined by an associate of the defendant, family doctor, in the same practice, who after performing an exam and ordering tests, including a chest x-ray, diagnosed the decedent with pneumonia and treated him with antibiotics. Although plaintiff did not allege negligence in that treatment, plaintiff’s experts testified that the decedent was not suffering from pneumonia at that time, but was instead experiencing pulmonary emboli for the first time. Accordingly, plaintiff alleged that the defendant, family doctor, upon getting the phone call, should have been aware, upon reviewing the decedent’s chart and hearing the complaints, that the earlier diagnosis of pneumonia may have been erroneous and the decedent needed to get worked up for pulmonary emboli. The defense maintained that the pulmonary emboli were a sudden, catastrophic event.

In addition to the family doctor, the emergency room doctor, the pulmonologist, who consulted the patient in the emergency room, and the hospital were all named in the suit. After a two week trial, the jury found in favor of each of the named medical providers, after deliberating for one hour and 45 minutes.

Favorable Ruling from Superior Court of Pennsylvania in Certificate of Merit Matter

by | Aug 20, 2012 | Medical Malpractice, Other Venues, Successes

Paul Peel received a favorable ruling from the Superior Court of Pennsylvania. In Harris v. Neuberger, the Superior Court of Pennsylvania reversed a trial court’s order that granted a plaintiff’s Petition to Open Judgments of Non Pros and remanded the matter to the trial court with instructions to enter judgment in favor of the defendants.

Defendants’ appeals concerned the trial court’s refusal to apply the Supreme Court’s recent decision in Womer v. Hilliker. 589 Pa. 256, 908 A.2d 269 (2006), and concomitant refusal to reinstate the entry of judgments of non pros in defendants’ favor due to plaintiff’s failure to timely file any Certificates of Merit. Although the trial court acknowledged that the Supreme Court expressly stated in Womer that it disapproved of an earlier decision by the Superior Court in Harris, the trial court nevertheless refused to reinstate the judgments of non pros in defendants’ favor because it believed that the Superior Court’s initial decision on this issue remained the law of the case. The trial court also held that the defendants waived their right to have the court apply the Supreme Court’s holding in Womer to this matter by failing to request allocatur after the Superior Court decided the initial appeal in this case.

On appeal to the Superior Court, Mr. Peel argued that the “law of the case” doctrine did not bar the trial court from applying Womer’s holding to this matter since the case clearly fell within two exceptions to that doctrine. Specifically, he asserted that the case fell within the exception to the doctrine that permits courts to reconsider questions previously decided by the same, or a higher, court when the prior court’s holding was clearly erroneous and would create a manifest injustice if followed. Mr. Peel also maintained that, to the extent that Womer represented a change in the controlling law, as plaintiff and the trial court suggested, the trial court would be permitted to depart from the “law of the case” doctrine on this basis as well.

Moreover, Mr. Peel contended that there is no authority in the Commonwealth of Pennsylvania that holds that a party is required to immediately seek allocatur from a ruling on an interlocutory appeal by an intermediate appellate court to preserve the right to have the order reviewed on an appeal at a later stage of the litigation. To the contrary, Mr. Peel argued that, since the Supreme Court always retains the authority to review the merits of an interlocutory order until an appeal is taken from a final judgment, defendants could not have waived their right to have the trial court’s interlocutory order reviewed in light of Womer’s holding simply because they chose not to seek allocatur during an earlier appeal to the Superior Court.

Finally, Mr. Peel disputed plaintiff’s argument that Womer’s holding should not be applied to this case because it would constitute an unfair retroactive application of a new rule of law. Mr. Peel specifically asserted that Womer did not actually announce a new rule of law, but rather, merely clarified what the existing law on Certificates of Merit was. Mr. Peel also contended that, even if Womer’s holding could be considered a new rule of law, the Supreme Court clearly intended for that holding to be applied retroactively to all pending cases since the Court did not expressly declare that its ruling was to be prospective only. In addition, Mr. Peel noted that, to the extent plaintiff was prejudiced by the amount of resources he invested in this case thus far, that prejudice certainly paled in comparison to other cases where changes in the law were retroactively applied and resulted from plaintiff’s own failure to comply with the Supreme Court’s rules.

The Superior Court agreed with Mr. Peel’s arguments and reversed the trial court’s order which granted plaintiff’s Petition to Open Judgments of Non Pros. In reaching these rulings, the Superior Court specifically found that Womer did not effect a change in the prevailing law, but merely provided guidance on the proper interpretation of a rule promulgated by the Supreme Court. Therefore, the Superior Court concluded that the “law of the case” doctrine did not preclude it from reconsidering its own earlier decision, especially since there was no final judgment entered in this matter. Accordingly, the Superior Court remanded this matter to the trial court with instructions to enter judgment in favor of defendants.

Defense Verdict for Surgeon in Montgomery County

by | Aug 20, 2012 | Medical Malpractice, Montgomery County, Successes

Marshall L. Schwartz obtained a defense verdict in a Montgomery County case in which the plaintiff alleged negligence when his bladder was perforated by a surgeon performing a laparoscopic appendectomy. Plaintiff maintained that if the surgery had been done properly, his bladder would not have been injured. The defense maintained that the surgery was performed within the standard of care and that the injury occurred as a result of an anatomic variance. With the variance, the bladder was higher than would be expected after decompression with a foley catheter and when trocars were entered, one inadvertently caused the perforation. Bladder injury is an accepted risk of the procedure. After a four day trial, the jury rendered a verdict in favor of defendants after a short deliberation.

Defense Verdict in Philadelphia County Court of Common Pleas for Family Physician, Medical Technician, and Practice

by | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes

Michael O. Pitt obtained a defense verdict in the Philadelphia County Court of Common Pleas for a family physician, her medical technician, and her practice. The defendant physician was the primary care doctor of the plaintiff husband, an avid bowler. Plaintiffs claimed that when he presented to defendant physician’s office for a routine blood draw, the medical technician “stabbed the needle” deeply into his arm and “poked and manipulated the needle in an attempt to draw blood.”

Plaintiffs’ allegations were that the medical technician’s negligent manipulation of the needle in the plaintiff’s elbow caused severe damage to the biceps tendon requiring plaintiff to undergo extensive rehabilitation and eventually surgical intervention. Plaintiffs’ alleged damages included continued pain, decreased strength and decreased range of motion of the right elbow to such an extent that he was unable to bowl at the same level as he could prior to the blood draw in question. There was also a claim for loss of consortium on behalf of the wife.

At trial, Mr. Pitt was able to use expert testimony to effectively demonstrate to the jury that the medical records supported defendants’ assertion that any injury or damage to plaintiff’s elbow was the result of repetitive overuse from bowling, which had created chronic degeneration and tendonitis in the elbow, not an acute injury from a blood draw.

After a three day trial, the jury found in favor of each of the named medical providers.

Defense Verdict for Otolaryngologist in Bucks County

by | Aug 20, 2012 | Bucks County, Medical Malpractice, Successes

Michael O. Pitt obtained a defense verdict in favor of an otolaryngologist following a five day jury trial in Bucks County, Pennsylvania. At issue was surgery to remove a polyp from the plaintiff’s sphenoid sinus. Plaintiff had alleged that the surgery performed was not necessary given her condition and that the physician was negligent in his performance of the surgery. The plaintiff alleged that the surgery caused her to suffer from continuous, debilitating sinus infections and migraine headaches. Through expert testimony and the plaintiff’s medical records, Mr. Pitt argued that the surgery was appropriate given the plaintiff’s lengthy history of sinus infections and headaches, and was performed by the defendant in accordance with the applicable standard of care.

Defense Verdict on Behalf of Surgical Oncologist in Philadelphia County

by | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes

Marshall L. Schwartz and Brett M. Littman obtained a defense verdict in favor of a surgical oncologist in Philadelphia County. Plaintiff, who had previously been diagnosed with breast cancer, claimed that after undergoing a mastectomy and concurrent breast reconstruction, the defendant-physician negligently performed a biopsy on the radiated skin of her breast, causing the loss of a saline breast expander. Plaintiff further alleged that with the loss of this expander, she was deprived of the possibility of a meaningful reconstruction of her breast. The defense maintained that the biopsy was a necessary procedure to rule out a recurrence of cancer. Further, the loss of the expander was an accepted risk of the procedure, which could occur in the absence of negligence.

After a four day trial and a brief deliberation, the jury rendered a verdict in favor of the defendant.