Superior Court Reverses Jury Verdict in Cardiologist’s Favor Following Appeal

by | Apr 11, 2014 | Medical Malpractice, Other Venues, Successes

Paul E. Peel recently prevailed on an appeal to the Superior Court of Pennsylvania from a judgment entered against an interventional cardiologist, his employer, and several affiliated entities.

In Emery v. Groh, M.D., et al., the plaintiff’s decedent was referred to the defendant cardiologist to undergo a diagnostic cardiac catheterization.  Prior to undergoing the procedure, the patient advised the doctor that he was allergic to nickel.  The doctor informed the patient that his treatment options included stenting of the artery and noted that it was not possible to choose an exact course of treatment without knowing the patient’s specific anatomy or taking into account his clinical situation.

Due to his allergy, the patient initially objected to the implantation of a stent containing nickel.  However, after additional discussion with his wife and the doctor, the patient agreed to undergo the catheterization procedure and gave written consent to have a stent implanted if it was necessary.

After receiving the patient’s consent, the cardiologist performed the catheterization.  During the procedure, the doctor implanted a stent containing nickel into one of the patient’s coronary arteries.

Over the next several years, the patient complained of experiencing rashes and itching in the area where the stent was placed.  He and his wife later commenced an action against the defendants alleging that the doctor failed to obtain his informed consent to undergo the catheterization and breached the standard of care by implanting a stent containing nickel in his artery.  The case proceeded to trial and resulted in a jury verdict in the plaintiffs’ favor.  Following the entry of judgment, the defendants filed an appeal to the Superior Court of Pennsylvania.

On appeal, the defendants asserted that the trial court erred in denying the defendants’ motion for judgment notwithstanding the verdict because the plaintiffs failed to present sufficient medical expert testimony to meet their burden of proving that the cardiologist caused the patient any harm.  Specifically, the defendants contended that the plaintiffs’ medical expert failed to link the cardiologist’s alleged misconduct to the patient’s purported injuries.

After considering the parties’ arguments on appeal, the Superior Court concluded that the lower court erred in denying the defendants’ motion for judgment notwithstanding the verdict.  In reaching this decision, the Superior Court held that the plaintiffs’ medical expert failed to testify with sufficient medical certainty that the cardiologist’s alleged tortious conduct caused the patient’s injuries.  The Court noted that, throughout trial and in his expert report, the plaintiffs’ expert proffered the opinion of the patient, not his own, regarding causality.  Moreover, the Court aptly noted that the plaintiffs’ expert actually acknowledged at trial that he was not sure whether the nickel stent implanted in the patient really caused the symptoms of which he complained.  Consequently, the Superior Court reversed the entry of judgment in the plaintiffs’ favor and directed the entry of judgment for the defendants.

Defense Verdict on Behalf of Internal Medicine Physician in Chester County

by | Mar 28, 2014 | Chester County, Medical Malpractice, Successes

Dan Ryan and Christine N. Dantonio recently obtained a defense verdict in favor of an internal medicine physician in the Court of Common Pleas of Chester County, Pennsylvania, in a case involving claims under the Wrongful Death and Survival Acts following the suicide death of the plaintiff’s wife. 

The decedent, a Certified Registered Nurse Practitioner, knew the defendant physician from working with him in the past.  In January, 2010, she sustained multiple fractures to her pelvis from a fall in her home.  Following admission to the hospital, the decedent was transferred to a skilled nursing facility where she requested that the defendant physician treat her.  She made good progress and was discharged from the skilled nursing facility in early March.  Thereafter, the decedent began to experience incapacitating pain in her left buttock and groin areas.  She was subsequently diagnosed by her gynecologist as having pudendal neuralgia, a painful neuropathic condition that is caused by inflammation of the pudendal nerve.  When she returned to the defendant physician in April, the medication Neurontin was prescribed to help with the decedent’s pain, and this medication was slowly titrated up.  In early May, the decedent complained of some depression secondary to her pain, in response to which the defendant physician prescribed the anti-depressant Lexapro.  Subsequently, another physician recommended that the Lexapro be increased and that the pain medication Ultram be added.  The defendant physician agreed and made the necessary adjustment to the decedent’s medications.  However, the decedent developed the side effect of hand tremors, and therefore, the doses of Lexapro and Ultram were decreased.  Plaintiff’s pain continued, eventually requiring the Ultram to be discontinued in favor of a narcotic pain medication.  During this time period, the decedent had no obvious signs or symptoms of severe depression or suicidal thoughts.  Tragically, she took her own life on May 27, 2010.

It was alleged that the defendant physician negligently increased the risk of harm to the decedent by failing to warn her and her husband of the potential side effects of Neurontin; significantly, its association with an increased risk of suicidal ideation and behavior.  Plaintiff further alleged that the defendant physician deviated from the standard of care when he failed to discontinue Neurontin following the decedent’s complaints of depression and hand tremors, failed to send the decedent for a psychiatric evaluation, failed to refer the decedent to a pain management specialist, and by prescribing a “dangerous mix” of medications. 

Defendants presented expert testimony that the use of Neurontin was appropriate, as was its combined use with Lexapro, Ultram, and Vicodin to treat the incapacitating nerve condition suffered by the decedent.  The jury was also presented with evidence that the decedent was proactive in her own care and was seeking out specialists all over the country for treatment of her condition.  However, the decedent quickly learned that even with aggressive therapy and/or surgery, there was no guarantee of a cure.  Given the lack of severe depression or suicidal thoughts by the decedent, it was argued that the decedent’s tragic demise was the result of her realization that she would never be able to return to her prior life as a Certified Registered Nurse Practitioner, wife, and mother. 

The jury deliberated for approximately two hours and returned an 11-1 verdict in defendant’s favor, finding that the defendant physician’s treatment of the decedent did not deviate from the standard of care, and therefore, he was not negligent.

Defense Verdict on Behalf of Family Physicians in Discrimination Case in District Court

by | 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.

Superior Court Affirms Judgment of Non Pros on Behalf of Attorney

by | 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. 

Successful Defense of Attorney and Firm at Arbitration

by | Oct 4, 2013 | ADR, Legal Malpractice, Successes

Anthony P. DeMichele successfully defended an attorney and his firm at arbitration in a matter involving claims of professional negligence.  The plaintiff was a musician and music producer who claimed that he entered into a contract with a legendary music artist to produce for distribution original songs written and performed by the legendary music artist.  Plaintiff claimed that the legendary music artist breached the contract, and as a result, Plaintiff filed a lawsuit seeking damages for the alleged breach of contract.  Plaintiff retained the services of several attorneys to pursue his breach of contract claim.  After a default judgment was obtained in the breach of contract claim, Plaintiff presented his case for damages at an assessment of damages hearing in Philadelphia County Court of Common Pleas.  However, after hearing testimony from expert witnesses for both Plaintiff and the legendary music artist, the judge determined that no monetary damages were suffered and awarded no damages to the plaintiff.  As a result of that decision, the plaintiff filed suit against all of the attorneys who represented him in his breach of contract claim.  Plaintiff alleged that, due to a poorly drafted complaint and failure to present sufficient evidence at the assessment of damages hearing, he suffered the loss of the monetary damages he was entitled to under the terms of the contract he entered into with the legendary music artist.  Mr. DeMichele and Mr. Brien represented the attorney and his firm who handled the assessment of damages hearing.

With regard to the allegedly deficient complaint, Plaintiff argued that the default judgment should have been opened and the complaint amended in order to correct the alleged deficiencies.  Defendants countered that it was an appropriate strategy to preserve the default judgment and not open the default judgment in order to amend the allegedly deficient complaint.  Further, Defendants argued that sufficient expert testimony and exhibits were presented at the assessment of damages hearing, which were entered into evidence without objection from opposing counsel.  Defendants also presented evidence that any potential judgment in the underlying breach of contract claim was uncollectible because the estate for the legendary music artist had no assets.  The inability to collect a judgment is an affirmative defense to a legal malpractice claim.  The arbitration panel agreed with Defendants arguments and entered an award in favor of Defendants on all claims.

Successful Defense of MRI Facility & Technologist at Arbitration

by | Sep 13, 2013 | ADR, Professional Liability, Successes

Anthony P. DeMichele successfully defended an MRI facility and one of its technologists at arbitration in a matter involving claims of professional negligence. Plaintiffs were husband and wife and claimed that the husband was injured when he fell from a MRI table after his MRI was completed. The wife brought a claim for loss of consortium. Plaintiffs argued that the MRI facility and its technologist were liable because the technologist failed to safely remove the husband from the table after the MRI machine malfunctioned. Mr. DeMichele argued that the MRI facility had appropriate policies and procedures in place for the safe removal of its patients in the event of a table malfunction and that the technologist followed these policies and procedures. Further, Mr. DeMichele argued that it was the husband’s own actions and failure to follow the instructions that were provided to him, which caused him to sustain his alleged injuries. Mr. DeMichele also argued that the husband’s alleged injuries were inconsistent with the medical records from his treating physicians. The arbitration panel agreed with Mr. DeMichele and entered an award in favor of the MRI facility and its technologist on all claims.