by Mark Bauman | Oct 4, 2013 | Other Venues, Professional Liability, Successes
Marshall L. Schwartz and Paul E. Peel recently obtained a defense verdict in favor of two family physicians and their medical group in the United States District Court for the Eastern District of Pennsylvania. The plaintiff, who is deaf, alleged that the defendants violated the federal Rehabilitation Act, 29 U.S.C.§ 794, et. seq., while she was their patient by failing to provide reasonable accommodations for her disability. Specifically, the plaintiff claimed that she requested a sign language interpreter for each of her appointments but was not provided one. As a result, plaintiff maintained that she was unable to effectively communicate her problems and concerns to the defendants. She contended that she felt humiliated and disrespected by the way the defendants treated her while she was their patient. The plaintiff also alleged that the defendants ended their physician-patient relationship with her solely because of her disability.
Defendants argued that the plaintiff had advised them that she did not need an interpreter at her appointments because she was able to communicate through reading lips and passing written notes. The defendants explained that, if there was any potential misunderstanding or if they needed to clarify something for the plaintiff, then they would write notes for her to read. The defendants asserted that, during the entire time that she was their patient, the plaintiff never asked for an interpreter or indicated that she could not understand the defendants and that the defendants never had any difficulty communicating with her. Defendants also established that their office policy required that an interpreter be provided if a patient requested one. Finally, the defendants testified that they ended their physician-patient relationship with the plaintiff, not because she was deaf, but rather, because she compromised the relationship by verbally abusing a member of their staff.
After deliberating for less than an hour, the jury returned a unanimous verdict in the defendants’ favor, finding that the defendants did not violate the Rehabilitation Act.
by Mark Bauman | Oct 4, 2013 | Legal Malpractice, Other Venues, Successes
Marshall L. Schwartz recently prevailed in the Superior Court after the plaintiff failed to file a certificate of merit and a judgment of non pros was entered in the Court of Common Pleas of Philadelphia County.
The attorney represented by Mr. Schwartz and Mr. Brien represented the plaintiff in four separate matters: the filing of a writ of habeas corpus, representation in an extradition proceeding, an appeal of the denial of an expungement petition, and an appeal of the denial of an assessment of costs and modification of sentence. The plaintiff alleged that his representation in each of these matters was deficient and filed a complaint with causes of action for malpractice, breach of contract, unjust enrichment, and negligence. However, he did not file a certificate of merit.
Accordingly, the defendant filed a Notice of Intention to Enter Judgment of Non Pros of Professional Liability Claim. The plaintiff responded by filing a Motion to Determine Necessity of Certificate of Merit. The Honorable William J. Manfredi denied the motion and ordered the plaintiff to file a certificate of merit.
Prior to the deadline to file a certificate of merit, the plaintiff filed a “Motion to Place This Matter In Deferred Status.” When the deadline elapsed, the defendant entered a judgment of non pros. The plaintiff filed a Petition to Strike And/Or Open Judgment of Non Pros. The Honorable Marlene F. Lachman issued an Order denying the petition. The plaintiff appealed.
The Superior Court affirmed the Order of Judge Lachman. In a Memorandum authored by the Honorable Jacqueline O. Shogan, the Superior Court found that a certificate of merit was required for each cause of action in the plaintiff’s complaint because each implicated the attorney’s overall exercise of care and professional judgment in carrying out his work for the plaintiff. Additionally, even if no expert testimony was required at trial, the plaintiff was still required to file a certificate of merit stating as such as set forth by the Pennsylvania Rules of Civil Procedure.
The Superior Court further held that the plaintiff’s Motion to Determine Necessity of Certificate did not constitute a motion for an extension of time to file a certificate of merit, which would have prevented the defendants from entering a judgment of non pros while the motion was pending. Finally, the Superior Court held that the plaintiff’s complaint did not set forth a meritorious cause of action, a requirement to open a judgment of non pros.
by Mark Bauman | Jul 3, 2013 | Insurance Coverage, Other Venues, Successes
Judge Eduardo C. Robreno of the United States District Court for the Eastern District of Pennsylvania recently ruled for an insurance company represented by Dan Ryan in a breach of contract and bad faith action. The insurance company had previously denied coverage to a lawyer after he failed to timely report a claim under his claims-made insurance policy.
The lawyer had represented a woman whose son drowned while swimming near an unsupervised beach. The lawyer timely filed a wrongful death action but failed to comply with the notice requirements of the New Jersey Tort Claims Act. The action was dismissed and an appeal was unsuccessful, also for procedural reasons.
Meanwhile, the lawyer renewed his insurance policy and verified that he was aware of no circumstance which could “reasonably support” a claim against him. By that time, the action he filed had been dismissed. The lawyer alleged that his client said that she did not intend to sue him.
The client did file a legal malpractice action against the lawyer. He reported the claim to the insurance company which denied coverage on the basis that the claim arose before the policy period in which it was reported. The lawyer defended the legal malpractice action at his own expense and prevailed. He then initiated an action against the insurance company seeking reimbursement of his defense costs as well as damages under the Pennsylvania bad faith statute, including costs, fees, and punitive damages. At the end of discovery, both sides moved for summary judgment.
The insurance company’s motion for summary judgment was granted and the lawyer’s motion for summary judgment was denied. Judge Robreno held that the phrase “reasonably support” was not ambiguous. Next, Judge Robreno applied the hybrid subjective/objective test advocated by Mr. Ryan and Mr. Brien and found that the lawyer was aware that the underlying action was dismissed on procedural grounds and that a reasonable attorney would believe that failure to comply with a statute of limitations could be grounds for a legal malpractice claim. Therefore, the lawyer should have reported the claim when he renewed the insurance policy. Judge Robreno further held that the insurance company was not required to prove prejudice.
Finally, Judge Robreno found that the lawyer’s claim for bad faith failed as a matter of law because he produced no evidence rebutting the denial letter from the insurance company which noted specific provisions of the insurance policy and how the lawyer’s actions constituted a violation of the policy.
Judge Robreno’s ruling was a complete victory for the insurance company represented by Mr. Ryan and Mr. Brien.
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by Mark Bauman | Aug 20, 2012 | Nursing Home, Other Venues, Successes
Paul Peel received a favorable ruling for a nursing home from the Superior Court of Pennsylvania. In Wister v. Liberty Nursing & Rehabilitation Ctr., 200 EDA 2005 (Pa. Super. October 17, 2005), the Superior Court of Pennsylvania reversed a trial court’s decision and dismissed plaintiff’s action for failure to timely file a Certificate of Merit as required by Pa.R.C.P. 1042.3. In the underlying action, plaintiff alleged that a nursing home failed to properly transfer her to another nursing home. As result of this improper transfer, the plaintiff did not receive certain medications which caused her serious and permanent injuries.
After plaintiff failed to timely file a Certificate of Merit, both nursing homes filed a Praecipe for Entry of Judgment of Non Pros which was granted by the trial court. Plaintiff then filed a Motion to Open the Judgments arguing that she did not assert a professional liability claim, as the defendants were not medical professionals and Certificates of Merit were not required. Further, plaintiff alleged that her claims against the defendants were administrative and clerical, not professional. The trial court agreed with plaintiff’s argument and ruled that the Judgments of Non Pros were improperly entered. The trial judge relied upon Judge Wettick’s opinion in Herrmann v. Pristine Pines of Franklin Park, Inc., 64 D.&C. 4th 14 (C.P. Allegheny County, 2003), stating that the defendants waived their right to file Praecipes for Judgment of Non Pros because they did not file preliminary objections to plaintiff’s complaint. In accordance with the opinion in Hermann, the trial judge stated that if plaintiff’s complaint did not expressly assert a professional liability claim, the defendants were to file preliminary objections. As neither defendant filed preliminary objections raising this issue, the defendants waived their claim that plaintiff violated Pa.R.C.P. 1042.3 and were not entitled to Non Pros judgments.
On appeal to the Superior Court, Mr. Peel argued that a nursing home clearly falls under the definition of a healthcare provider as defined by 40 P.S. § 5101.1(c). Further, Mr. Peel contended that the plaintiff’s complaint clearly sounded in professional negligence and therefore she was required to file a Certificate of Merit. The Superior Court agreed with Mr. Peel’s arguments and stated that plaintiff’s allegations of a nursing home’s failure to send a patient’s records to another nursing home and the second nursing home’s failure to realize that insufficient information was sent falls under the “furnishing of health care services.” Pa. C.S.A. § 5101.1(c). Accordingly, plaintiff’s action was sounded in professional negligence which required a Certificate of Merit. The entry of Non Pros was proper and the trial court’s opening of the judgment was reversed.
by Mark Bauman | Aug 20, 2012 | Hospital Liability, Other Venues, Successes
The Superior Court of Pennsylvania recently affirmed the trial court’s entry of judgment on the verdict in favor of two physicians and a hospital in McNulty v. Thomas Jefferson University Hospitals, Inc. In McNulty, the plaintiffs commenced a wrongful death/survival action against the defendants alleging that the defendants breached the standard of care by: (1) leaving a surgical sponge behind the decedent’s heart during an emergent operation, (2) failing to properly check for retained sponges during and after the operation, and (3) failing to surgically remove the retained sponge for two days. The plaintiffs asserted that the defendants’ combined negligence was a substantial factor in causing the decedent to develop an infection, which remained dormant in her body for more than ten months, but ultimately led to her untimely death. However, during trial, the defendants presented evidence that the decedent did not suffer from an infection related to the retained sponge. This evidence included testimony from an infectious disease specialist who treated the decedent only days before she died. Finding this evidence persuasive, the jury returned a verdict in the defendants’ favor, concluding that the two physicians were negligent, but that their negligence was not a substantial factor in causing the decedent any harm.
Following the entry of judgment in the defendants’ favor, the plaintiffs filed an appeal to the Superior Court, arguing that the trial court erred by admitting the testimony of the infectious disease specialist on the grounds that he was not identified as a possible witness before trial. The plaintiffs further asserted that the jury’s verdict in the defendants’ favor was contrary to the weight of the evidence presented. Therefore, the plaintiffs maintained that the Superior Court should vacate the trial court’s judgment in the defendants’ favor and remand the matter to the lower court for a new trial.
However, the Superior Court rejected the plaintiffs’ arguments and affirmed the trial court’s entry of judgment in the defendants’ favor. With respect to the plaintiffs’ first allegation of error, the Superior Court held that the trial court did not abuse its discretion by permitting the defendants to call the treating infectious disease specialist to the stand even though he was not specifically identified in the defendants’ witness lists. In reaching this holding, the Superior Court observed that the plaintiffs were well aware of the treating physician’s pending testimony before trial as they attempted to preclude it by filing a motion in limine. The Superior Court further noted that, because the infectious disease specialist had treated the decedent, he was well known to the plaintiffs and their attorney and could have been interviewed by the plaintiffs at any time before trial without the need to engage in formal discovery. Therefore, the Superior Court concluded that the infectious disease specialist’s testimony was not surprising and did not unfairly prejudice the plaintiffs’ case. Accordingly, the Superior Court held that the plaintiffs’ first allegation of error was clearly without merit.
The Superior Court also rejected the plaintiffs’ second allegation of error. In support of this issue, the plaintiffs asserted that the verdict was clearly against the weight of the evidence in light of the uncontroverted testimony that the decedent was compelled to undergo an additional operation due to the defendants’ negligence in leaving a surgical sponge inside her chest. However, after noting that its scope of review was limited to determining whether the trial court’s determination was manifestly erroneous, arbitrary and capricious, or flagrantly against the evidence, the Superior Court rejected the plaintiffs’ argument on this issue. In reaching this conclusion, the Superior Court adopted the trial court’s determination that, if the only negligence attributable to defendants was that they either failed to timely discover the retained sponge or failed to perform the sponge removal operation sooner, then the jury could reasonably have concluded that defendants were not responsible for the sponge removal surgery since that operation would have been required even in the absence of negligence. Therefore, since the Superior Court found the plaintiffs’ allegations of error to be completely without merit, the Court affirmed the trial court’s entry of judgment in the defendants’ favor.
by Mark Bauman | Aug 20, 2012 | Commercial Liability / Litigation, Other Venues, Successes
Anthony P. DeMichele successfully defended a real estate holding company and one of its members in the Court of Common Pleas of Northampton County. The case was an offshoot of an underlying lawsuit wherein the plaintiff school district filed a lawsuit against several defendants due to alleged defects in the construction of a local high school. One of the defendants in that case was a subcontractor for the project. That subcontractor joined several additional defendants, including a real estate holding company and its members, claiming that the additional defendants were liable under theories of successor liability and fraudulent conveyance. Additionally, the subcontractor attempted to hold the individual members liable under a theory of piercing the corporate veil because it claimed the corporate successor entities were merely sham corporations and the alter egos of the individual members.
Following a seven day bench trial, the Judge entered an opinion and decision in favor of all defendants and against the subcontractor that joined the additional defendants to the underlying construction dispute. The Judge concluded that the subcontractor failed to prove any basis for successor liability, that the subcontractor failed to prove that a fraudulent conveyance occurred, and that the subcontractor failed to prove that any of the corporate entities were sham corporations thus prohibiting the piercing of the corporate veils and denying liability against the individual members.
