by Mark Bauman | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes
Michael O. Pitt obtained a defense verdict in favor of a cardiologist in Philadelphia County. Plaintiff’s decedent presented to the emergency room with chest pain and shortness of breath. A cardiology consultation was requested and at the time of the examination by the cardiologist the decedent was awake, alert and comfortable. A few hours following the examination, the decedent suffered an arrest and died several days later.
Plaintiff alleged that the decedent’s vital signs were not stable and that the cardiologist should have recommended prophylactic intubation. The defense maintained that there was nothing at the time of the cardiologist’s examination to suggest an acute cardiac or respiratory illness and, therefore, prophylactic intubation was not necessary.
After a five day trial and a brief deliberation, the jury found in favor of the doctor.
by Mark Bauman | Aug 20, 2012 | ADR, Insurance Coverage, Successes
Anthony P. DeMichele obtained a declaratory judgment for an insurance company in a coverage dispute involving its insureds. The insureds, an attorney and his law firm, were sued in two separate state court actions based upon their involvement in gold futures investments. In the underlying litigation, ten plaintiffs filed two separate actions against the insureds claiming that the insureds were professionally negligent, that the insureds misrepresented information, and that the insureds breached their fiduciary duty to the plaintiffs. The plaintiffs’ claims stemmed from the insureds’ solicitation of the plaintiffs to investment money with a third party. Each of the plaintiffs claimed to have been represented by the insureds prior to the solicitation of the investments, and therefore, the plaintiffs alleged that the insureds represented them in the investment transactions that formed the basis of their claims. The plaintiffs invested approximately $9,000,000 through the insureds to a third party. The plaintiffs argued that the money was not used for investments but rather the money was used for loans, which were secured by notes and mortgages prepared by the insureds. The insureds also argued that the money was used for loans. Based upon the allegations of professional negligence, the insureds submitted the claims to their insurance company for coverage.
Mr. DeMichele initiated a declaratory judgment action in the United States District Court for the Middle District of Pennsylvania seeking a declaration from the court as to the parties’ rights under the insurance policy at issue. In the declaratory judgment complaint, Mr. DeMichele asserted that certain exclusions in the insurance policy did not provide coverage for the plaintiffs’ claims, and therefore, the insurance company did not have a duty to defend its insureds or a duty to indemnify its insureds with regard to the claims that were asserted in the underlying state court actions. At the close of the pleadings phase of the litigation, the plaintiffs moved for judgment on the pleadings arguing, among other things, that the exclusions in the insurance policy did not preclude coverage of the claims. Mr. DeMichele responded to the plaintiffs’ motions and argued that the policy exclusions did apply, and based upon the allegations in the plaintiffs’ complaints in the underlying litigation, there was no coverage under the insurance policy. The court agreed with Mr. DeMichele’s position and denied the plaintiffs’ motions for judgment on the pleadings. At the same time, the court declared that the insurance company did not have a duty to defend or a duty to indemnify its insureds in the plaintiffs’ underlying state court actions.
by Mark Bauman | Aug 20, 2012 | Hospital Liability, Montgomery County, Successes
Dan Ryan and Carolyn Bohmueller secured a defense verdict in favor of a hospital following a six day jury trial in Montgomery County, Pennsylvania. The plaintiff, a prominent local celebrity, alleged that a hematologist/oncologist failed to properly diagnose her rare condition called POEMS (polyneuropathy, organomegaly, endocrinopathy, monoclonal gammopathy, and skin lesions) syndrome and failed to offer her appropriate treatment. The hematologist/oncologist was on staff at the hospital, and alleged to be an ostensible agent of the hospital. Plaintiff claimed that the standard of care required that she should have been referred for a second opinion, she should have been diagnosed with POEMS, and high dose chemotherapy with autologous stem cell transplantation should have been recommended. Plaintiff claimed that, as a result of the alleged negligence, she suffered a loss of earning capacity which exceeded $7,000,000, as well as pain and suffering and loss of life’s pleasures. The defense for the hospital rebutted agency and substantive claims, and presented evidence that the use of high dose chemotherapy with stem cell transplantation for POEMS syndrome was experimental at the time, and is still not considered to be the standard of care for treatment of POEMS syndrome. The jury determined that neither the hospital nor the physician were negligent.
by Mark Bauman | Aug 20, 2012 | Commercial Liability / Litigation, New Jersey, Successes
Anthony P. DeMichele, along with co-counsel, Domenick Carmagnola of Carmagnola & Ritardi, LLC in Morristown, New Jersey, obtained a defense verdict for a closely held office products company and its chief executive officer in a breach of contract and conversion claim brought by the company’s former president. The lawsuit, initially filed in Philadelphia County but transferred to Bucks County where the company maintains its operations, claimed that the former president was entitled to the value of 10% stock ownership in the company, basing his right to the stock on a handshake deal he claimed he reached with the founder and chief executive officer of the company. As part of his claim, the former president argued that he paid $100,000 for the first 4% of the stock and that the remaining 6% was owed to him because his rights to obtain the remaining stock vested when he was terminated without cause. The former president contended that the acceptance of the payment created a contract for the sale of the 4% stock interest. The company and chief executive officer argued that the payment of the $100,000 was made through misrepresentations and fraud by the former president and that the company and chief executive officer were wrongfully induced into accepting the $100,000 payment. Further, the company and chief executive officer presented evidence that that the former president failed to perform his duties as president of the company, and as a result, his termination was for cause. As part of his claim, the former president presented expert witness testimony that the company was worth in excess of $70 million dollars at the time of his termination, and therefore, he was entitled to damages in excess of $7 million dollars. After a six day trial, the jury returned a unanimous defense verdict on all claims and did not award any damages to the former president.
by Mark Bauman | Aug 20, 2012 | Bucks County, Hospital Liability, Successes
Marshall L. Schwartz obtained a defense verdict in favor of a hospital following a four day jury trial in Bucks County, Pennsylvania.
Plaintiff alleged that the decedent suffered a retroperitoneal bleed as a result of a cardiac catheterization procedure and that defendants were negligent in the post-procedure management of the bleed. Plaintiff’s expert witnesses alleged that defendant physicians failed to obtain appropriate consultations and failed to order appropriate diagnostic studies to determine the extent of the retroperitoneal bleed.
The defense argued that the care provided to the patient was appropriate as the patient did not exhibit signs of an ongoing bleed; therefore, surgical intervention was not warranted. Plaintiff further claimed that the cardiologists on staff at the hospital were ostensible agents of the hospital. The defense for the hospital rebutted plaintiff’s allegations of negligence and further asserted that there was insufficient evidence to establish a claim for vicarious liability through ostensible agency. Plaintiff had claims for wrongful death and survival, including a claim for lost earnings.
The jury determined that neither the physicians nor the hospital were negligent.
by Mark Bauman | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes
Dorothy Duffy obtained a defense verdict in the Philadelphia Court of Common Pleas on behalf of a surgeon in a medical malpractice action. The plaintiff’s decedent came to the surgeon complaining of hemorrhoids. The surgeon recommended that she proceed with a colonoscopy before undergoing hemorrhoid removal. A colonoscopy was performed and two small polyps were removed. Otherwise, no abnormalities were seen.
Nine months later, the patient presented to the emergency room with abdominal pain. A CT scan revealed a large right-sided colon tumor, abnormal ovaries, numerous liver masses, and masses throughout her abdomen. A repeat colonoscopy showed an ascending colon mass which appeared to be an “extrinsic process.” A biopsy confirmed that this was the primary site of her cancer. Palliative treatment was initiated and the patient eventually passed away.
The plaintiff contended that the surgeon failed to perform the colonoscopy to the cecum (the beginning of the colon), thereby missing the ascending colon mass which would have been visible nine months earlier. The defendant testified that he observed the landmarks of the cecum, indicating that he performed a complete colonoscopy. The defense presented extensive expert testimony to the jury that the patient’s cancer actually began in her appendix. Primary appendeceal cancer cannot be diagnosed on colonoscopy. The appendeceal cancer spread to the outside of the patient’s ascending colon and pushed in, leading to the finding seen during the second colonoscopy. The diagnosis of primary appendeceal cancer was supported by subsequent radiology studies.
The jury found that the surgeon was not negligent, that is, that he complied with the standard of care. Therefore, the jury did not reach the question of causation. However, the defense also argued that the patient had metastatic cancer at the time of the colonoscopy. The plaintiff’s oncology expert agreed with this conclusion during his cross-examination. Therefore, the defense also argued that any delay in diagnosis did not change the patient’s prognosis or ultimate outcome.
