by Mark Bauman | 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.
by Mark Bauman | 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.
by Mark Bauman | Sep 3, 2013 | Legal Malpractice, Philadelphia, Successes
Anthony P. DeMichele and Jeffrey P. Brien recently obtained summary judgment for an attorney and law firm in a legal malpractice action venued in the Court of Common Pleas of Philadelphia County. The Order dismissing all claims against the Firm’s clients was entered by the Honorable John M. Younge.
The plaintiff was injured when a crane fell on him at work. He retained the Firm’s clients to represent him in a Workers’ Compensation Action. After a period of time in which the plaintiff received significant medical treatment which was paid for by his employer’s Workers’ Compensation insurance carrier, the plaintiff was no longer receiving medical treatment. His employer offered him a light duty position. The plaintiff refused and his employer filed a petition to suspend his wage benefits.
While the petition was pending, the Firm’s clients negotiated a settlement for the plaintiff wherein he would receive three additional years worth of wage benefits in addition to the two years that he had already received. The plaintiff agreed to the settlement and it was approved by the Workers’ Compensation Judge after the plaintiff was colloquyed under oath.
Meanwhile, the plaintiff also settled his third party action for a significant sum. However, this sum was apparently less than the plaintiff was expecting. The plaintiff initiated a legal malpractice action against the Firm’s clients as well as the attorneys who represented him in the third party action. These attorneys entered into a joint-tortfeasor agreement with the plaintiff during the pendancy of the legal malpractice action.
The plaintiff alleged that the Firm’s clients breached their agreement with the plaintiff by advising him to settle the Workers’ Compensation action. Specifically, the plaintiff alleged that, had he known that his third party action would be settled for an “inadequate” amount, he would not have agreed to settle the Workers’ Compensation action.
In the motion for summary judgment, Mr. DeMichele and Mr. Brien argued that plaintiff’s cause of action was barred because he was merely a dissatisfied litigant who was now seeking a larger monetary settlement. As the plaintiff’s cause of action would require an impermissible degree of speculation, it could not go forward. In addition, they argued that there was no evidence that the Firm’s client had breached their agreement with the plaintiff.
UPDATE:
On appeal, the Pennsylvania Superior Court upheld the entry of summary judgment for the Firm’s clients. In a published opinion, the Honorable Anne E. Lazarus, joined by the Honorable Jack A. Panella and the Honorable David N. Wecht, found that the plaintiff’s claim that he did not voluntarily enter into the workers’ compensation settlement was not supported by the record. In particular, the court noted that the plaintiff underwent a thorough colloquy prior to the approval of his workers’ compensation settlement. He stated under oath that he understood the effects of the settlement, that he had enough time to think about his decision to enter the settlement, and that he wanted the settlement to be approved.
Since there was no evidence that the plaintiff’s assent to the settlement was involuntary, the Superior Court held that his legal malpractice action was barred under Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991). Unless the plaintiff had pled and could prove that he was fraudulently induced to settle the workers’ compensation action, or he could prove that defendants failed to explain the effect of that settlement to him, or that the settlement was somehow legally deficient, he did not have a viable cause of action for negligence.
The court held that it was clear that the Firm’s clients were entitled to judgment as a matter of law.
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 | Nov 20, 2012 | Informed Consent, New Jersey, Successes
UPDATE: Third Circuit Upholds Dismissal on Appeal (See below)
O’Brien & Ryan attorneys Dan Ryan and Anthony P. DeMichele obtained a dismissal of all claims lodged against a kidney transplant team in New Jersey federal court.
The plaintiff had received a kidney from a co-worker, who was positive for the CMV virus, rather than his wife, who was negative for the CMV virus. After contracting the CMV virus, the plaintiff alleged that he would have chosen to receive a kidney from his wife had he been made aware of the donor’s positive CMV virus. He alleged that the defendant transplant team failed to adhere to the standard of care and failed to obtain informed consent for the procedure. He also brought a claim against the hospital where the transplant took place for fraudulent misrepresentation. The defendants denied these allegations.
Pursuant to New Jersey substantive law, the plaintiff submitted an affidavit of merit by a family physician. The defendants thereafter moved to dismiss the plaintiff’s complaint for failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27, et seq. The plaintiff argued that no affidavit of merit was required, or, in the alternative, the affidavit of merit by the family physician met the requirements of the statute.
The court, in its written opinion, disagreed. It found that the plaintiff’s allegations did not meet the common knowledge exception to the obligation to present expert testimony. Further, each of the plaintiff’s claims, including the claims for lack of informed consent and fraudulent misrepresentation, required proof of deviation from a professional standard, and, therefore, an affidavit of merit.
Finally, the court characterized the plaintiff’s contention that informed consent is the same across all medical disciplines as nonsense. “Certainly there is a difference between informed consent for a flu shot and informed consent for a kidney transplant.” Even if a family physician has general knowledge regarding the CMV virus, “there is no evidence that he has expertise as to how the viruses relate to the risks involved in kidney transplant surgery.” Accordingly, the plaintiff’s claims were dismissed with prejudice.
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Following the dismissal of his claims with prejudice by the District Court, the plaintiff filed an appeal to the United States Court of Appeals for the Third Circuit. After reviewing briefs and holding oral argument, the Third Circuit issued an opinion affirming the dismissal.
The court found that this case falls squarely within prior Third Circuit precedent which held that affidavits of merit are required to pursue informed consent cases. Despite the plaintiff’s argument that the facts of this case meet the common knowledge exception to the affidavit of merit requirement, the Third Circuit held the intervening New Jersey Supreme Court cases, including those relating to the common knowledge exception, did not alter the analysis for informed consent cases. The court also held that the plaintiff did not substantially comply with the affidavit of merit requirement. Therefore, the judgment below was upheld.
by Mark Bauman | Nov 20, 2012 | Medical Malpractice, Philadelphia, Successes
Daniel F. Ryan, III and Michael O. Pitt obtained a defense verdict in favor of defendant neurologists and a nurse practitioner in a medical malpractice action in Philadelphia County.
In February 2009, plaintiff’s decedent, a 25 year old female, presented for a follow-up visit for treatment of migraine headaches. At that time, the patient reported experiencing headaches six days per week. She also had an extensive psychiatric history, including severe depression and inpatient admissions for suicidal ideation.
At the first office visit in February 2009, the nurse practitioner ordered a three day, consecutive course of DHE infusions, in accordance with the attending neurologist’s plan established at the patient’s last visit in December 2008. On the morning of the second infusion, the nurse practitioner noted the patient to be lethargic, having difficulty keeping her eyes open and was hypotensive. The nurse practitioner changed that patient’s medications to ensure less sedating effects. At the time of discharge, around 3:00 p.m., the patient’s vital signs and gait were normal. At approximately 6:00 p.m., the decedent went to her bedroom and was not seen by any family member for the remainder of the evening. The next morning, she was found deceased in her locked bedroom. Toxicology results, included the autopsy report, concluded that the decedent died as a result of an overdose of Prozac and Effexor taken in the hours before her death.
Plaintiff argued that the patient was suffering from multiple medication toxicity following her second day of infusion therapy and that the standard of care required the patient to be sent to the emergency room for evaluation and possible admission. Also, plaintiff was critical of the fact that the patient had not been seen by an attending physician on either day of her infusions.
The defense expert neurologist testified the nurse practitioner appropriately ordered infusion therapy for the patient, in accordance with the plan established by the attending neurologist. The decedent exhibited no signs or symptoms of medication toxicity on the second day; rather, as the day progressed, she became more alert and her vital signs normalized. The expert also confirmed that none of the medications given to her during her infusion could have caused her levels of Prozac and/or Effexor to be raised above therapeutic levels. The defense argued that the plaintiff’s decedent took either an accidental or intentional overdose of medications.
After deliberating less than an hour, the jury returned a verdict in favor of the defendants. The jury concluded that neither the defendant neurologists, nor the nurse practitioner whom they supervised, breached the standard of care and were not negligent.
