by Mark Bauman | Aug 20, 2012 | Philadelphia, Professional Liability, Successes
In a case involving a claim of professional negligence against an insurance agent filed in Philadelphia County Court of Common Pleas, Anthony P. DeMichele obtained a voluntary dismissal for his client. In the lawsuit, the plaintiff claimed that his insurance agent negligently advised him to switch annuities. According to the plaintiff, he was told by his insurance agent that he did not have enough liquidity in his annuity to satisfy his financial needs. Based upon his insurance agent’s recommendation and advice, the plaintiff switched annuities. After making the switch, the plaintiff learned for the first time that the value of his annuity substantially decreased due to early withdrawal penalties and cancellation fees. The plaintiff claimed that he was not advised of these penalties and fees. The plaintiff also learned that not only did the value of his annuity decrease but the insurance agent earned a large commission as a result of the switch in annuities. The plaintiff claimed that he was unaware of the insurance agent’s compensation at the time the switch in annuities occurred. Further, after the switch in annuities, the plaintiff alleged that he learned that his original annuity had sufficient liquidity for his financial needs and therefore, it was not necessary to switch the annuities.
The plaintiff alleged that the insurance agent recommended the switch in annuities solely for the insurance agent’s own self-interest and at the expense of the plaintiff. The plaintiff claimed that there was no need for him to switch the annuities and that the only reason he made the switch was because his insurance agent advised him to do so. In relying on the insurance agent’s advice, the plaintiff made the switch and suffered a loss in the value of his annuity. Moreover, the plaintiff claimed that the insurance agent’s commission demonstrated that the insurance agent was acting with his own interests in mind and not in the best interest of the plaintiff.
During an aggressive deposition of the plaintiff, Mr. DeMichele obtained valuable admissions from the plaintiff. These admissions weakened plaintiff’s case against the insurance agent and forced the plaintiff to reevaluate his case. A few days after the plaintiff’s deposition, plaintiff decided not to pursue his case against the insurance agent and filed a voluntary dismissal with the Court, dismissing the case against the insurance agent.
by Mark Bauman | Aug 20, 2012 | ADR, Commercial Liability / Litigation, Successes
Marshall L. Schwartz obtained an arbitration award in favor of a general contractor in a Montgomery County construction litigation matter. The defendant, and owner of the property at issue, failed to make payment under the contract. The matter proceeded to arbitration under the theories of breach of contract and unjust enrichment. The general contractor was awarded contract damages plus interest.
by Mark Bauman | Aug 20, 2012 | Medical Malpractice, New Jersey, Successes
Daniel F. Ryan, III obtained a defense verdict for an orthopedic spine surgeon in Camden County, New Jersey. Plaintiff presented to the orthopedic spine surgeon with symptoms and physical findings of cervical myelopathy. Cervical myelopathy is a dangerous and progressive disease of the spinal cord which if left untreated can result in catastrophic consequences for the patient. Plaintiff also presented with known problems of his lower back which were causing him pain. MRIs of the cervical and lumbar spine were obtained and the MRI of the cervical spine did show cord compression indicative of a diagnosis of cervical myelopathy. After confirmation from a neurologist that plaintiff’s symptoms were not being caused by some underlying neurologic condition (MS, Lou Gehrig’s Disease, Brain Tumor, etc.), the spine surgeon confirmed his diagnosis of cervical myelopathy and with the plaintiff’s informed consent performed an anterior cervical decompression and fusion on the plaintiff.
Plaintiff alleged that the orthopedic spine surgeon misdiagnosed him with cervical myelopathy. This alleged misdiagnosis resulted in plaintiff undergoing an unindicated anterior cervical fusion where plaintiff’s real complaints were centered around the pain emanating from his lower back.
The defense maintained that the surgeon appropriately elicited plaintiff’s symptoms of cervical myelopathy. The plaintiff had hyperreflexia, a positive Hoffmann’s sign, clumsiness with his hands and gait abnormalities, all of which offered further evidence in support of the diagnosis of cervical myelopathy. Plaintiff also had cord compression on the MRI of his cervical spine. Taking plaintiff’s symptoms and physical findings into account, the surgeon acted appropriately and saved the plaintiff from potential catastrophic future consequences related to his cervical myelopathy. After a one week trial, the jury rendered a verdict for the surgeon after deliberating for two and a half hours.
by Mark Bauman | Aug 20, 2012 | Medical Malpractice, Montgomery County, Successes
Michael O. Pitt obtained a defense verdict for an anesthesia pain management group in Montgomery County, Pennsylvania. The plaintiff had a series of stellate ganglion blocks for arm pain, which were performed by several anesthesia pain management physicians. After the last block, the plaintiff developed an infection and eventually osteomyelitis, which were diagnosed approximately seven weeks after the performance of the block. Ten days after the block was performed, the plaintiff presented to one of the anesthesia pain management physicians with pain complaints and a white blood cell count and ESR were ordered to rule out infection. The studies were negative. Two weeks later, the plaintiff presented to his family physician with continued complaints and was referred back to the anesthesia pain management group. He returned to the family physician three weeks later with continued complaints after failing to follow up with the anesthesia pain management physicians. The family physician eventually ordered an MRI and the infection and osteomyelitis were diagnosed. The plaintiff underwent a bone biopsy and was placed on IV antibiotics until the infection and osteomyelitis resolved.
Plaintiff alleged that the anesthesia pain management group and the family physicians delayed the diagnosis and failed to appropriately respond to plaintiff’s complaints. It was alleged that the plaintiff had ongoing neck pain as a result of the delayed diagnosis.
The defendants argued that they reacted appropriately to the plaintiff’s complaints and that any alleged delay did not cause any additional injury. After a one week trial, the jury rendered a verdict for all of the defendants after a very brief deliberation.
by Mark Bauman | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes
Heather Hansen obtained a defense verdict for an orthopedic surgeon in Philadelphia County, Pennsylvania. In 2003, Plaintiff underwent a right total knee arthroplasty procedure. After the procedure, Plaintiff allegedly suffered from pain, stiffness and decreased range of motion. A manipulation procedure was performed, but Plaintiff continued to complain of pain, stiffness and decreased range of motion. The following year, Plaintiff underwent a revision of the total knee arthroplasty procedure with a different orthopedic surgeon. A smaller sized tibial insert was used by the second surgeon. Plaintiff alleged an improvement in his range of motion after the revision procedure.
Plaintiff alleged that the initial orthopedic surgeon used an incorrectly sized tibial insert which caused a restricted range of motion, pain, stiffness, and altered gait. Plaintiff further alleged he could no longer perform his usual activities. The defense maintained that the component was the correct size, but Plaintiff unfortunately suffered from stiffness which is a known complication of the procedure. Plaintiff also did not follow post-operative instructions that were provided, and used weights against the specific, written orders of the orthopedic surgeon. The medical records also demonstrated that Plaintiff’s range of motion did not improve after the smaller component was used in the revision procedure.
After a three day trial, the jury returned with a defense verdict.
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.
