Defense Verdict on Behalf of Thoracic Surgeon

by | Nov 6, 2014 | Medical Malpractice, Other Venues, Successes

Marshall L. Schwartz and Brett M. Littman recently obtained a defense verdict in a medical malpractice case on behalf of a thoracic surgeon and hospital following a six-day jury trial.

In June 2008, after being diagnosed with lung cancer, the patient presented for surgery to remove two lobes of his lung and treat his condition. The plaintiff alleged that while the surgery was successful, the defendant failed to properly monitor his respiratory status and perform proper post-operative care. He further alleged that this led to a build-up of carbon dioxide and depleted oxygenization, which caused permanent injury.

The defense presented extensive expert testimony in both thoracic surgery and pulmonology, to show that the patient was closely monitored and received proper treatment provided by the entire medical staff, which included physicians, residents, and nurse aides. The defense further established that the patient’s injury could not have been prevented in even the best of circumstances.

After a brief deliberation, the jury returned a verdict in favor of the defense and found that the defendant was not negligent.

Directed Verdict Obtained on Behalf of Orthopedic Surgeon

by | May 19, 2014 | Medical Malpractice, New Jersey, Successes

Heather Hansen recently obtained a directed verdict in favor of an orthopedic surgeon in the Superior Court of New Jersey-Atlantic County. 

The plaintiff had sustained a work-related knee injury and had an arthroscopy prior to seeing the defendant orthopedic surgeon.  After failing conservative therapy, the defendant orthopedic surgeon performed a  total knee replacement.  In the months thereafter,  plaintiff’s pain and function progressively improved and radiographs  showed a  well-positioned total knee replacement.  However, plaintiff sought the opinion of  another orthopedic surgeon for complaints of pain.  Plaintiff alleged that surgeon commented that while plaintiff had excellent alignment and range of motion of the knee, he thought there may be an elevated joint line or a patella baja (an abnormally low lying patella).  He later performed an arthroscopic debridement with resection of scar tissue.   

Plaintiffs alleged that the defendant orthopedic surgeon negligently performed the total knee replacement by elevating the joint line which caused a patella baja.  It was the defendant’s position that the surgery was appropriately performed and that there was no elevation of the joint line. 

After the plaintiffs presented their case at trial, Ms. Hansen moved for a directed verdict, and successfully argued that plaintiffs’ liability expert provided only net opinions and did not provide the requisite testimony needed to establish that the defendant’s care and treatment of the plaintiff deviated from the standard of care.  The Court agreed with Ms. Hansen’s arguments and granted the motion for a directed verdict. 

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.