UPDATE: Summary Judgment Upheld for Attorney & Firm in Legal Malpractice Action

by | 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.

Defense Verdict on Behalf of Neurologists and Nurse Practitioner in Philadelphia County

by | 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.

Defense Verdict in Favor of Internist in Failure to Diagnose and Treat Lung Cancer Case

by | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes

Dan Ryan received a defense verdict in a case in the Court of Common Pleas of Philadelphia County in which the Plaintiff, the estate of a deceased patient, alleged that an Internist failed to diagnose and treat the patient’s lung cancer. The patient ultimately died from stage three lung cancer. The Plaintiff asserted that the Internist should have ordered follow-up studies as a result of abnormalities suggested on a July 1999 chest x-ray. According to Plaintiff’s expert, if the physician would have performed timely follow-up studies, the patient’s lymph node involvement would not have been as extensive and he would have had a better chance of prolonged survival.

On June 14, 1999, the patient, a 53-year-old male, presented to his Internist’s office after an illness and complained that he was light-headed, had cramping and diarrhea and had a temperature of 102 degrees, The patient denied any dyspnea on exertion or hemoptysis. The patient’s history was significant for cigarette smoking and interstitial lung infiltrates but indicated to the Internist that he had stopped smoking in 1995. The Internist had the impression that the patient had an upper respiratory infection that was probably viral in nature. He ordered a chest x-ray and blood work. The blood work was normal. The chest x-ray, performed on July 8, 1999, revealed a patchy infiltrate in the right lower lobe, which the Internist felt was consistent with the patient’s symptoms.

On July 20, 1999, the patient returned for a follow-up visit. He did not have any shortness of breath, sputum or cough. His weight was stable and his lungs were clear. At the next office visit on November 16, 1999, the patient complained of hemoptysis. A chest x-ray was immediately ordered, which revealed a right hilar mass with post-obstructive atelectasis and infiltrate, most suspicious for carcinoma. The Internist promptly referred his patient to a pulmonary specialist. A non-small cell carcinoma of the lungs was eventually diagnosed with positive lymph nodes. Despite treatment and due to the virulent nature of the tumor and the significant node involvement, the patient died less than one year later, in October of 2000.

After a six-day trial and 2 ½ days of jury deliberation, the jury returned a unanimous verdict finding that the Internist was not negligent in their treatment of his patient.

Defense Verdict for Orthopedic Surgeon in Philadelphia County

by | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes

Heather Hansen obtained a defense verdict for an orthopedic surgeon in Philadelphia County. The plaintiff alleged that the orthopedic surgeon negligently opted to perform a bilateral total knee replacement despite alleged vascular compromise in the patient; and negligently ordered the use of a continuous passive motion (CPM) machine during the patient’s post-operative rehabilitation. The defense contended that the orthopedic surgeon appropriately performed the surgery as the patient was given pre-operative clearance and as the surgeon himself palpated pedal pulses pre-operatively and, therefore, detected no vascular compromise. The defense also contended that the post-operative rehabilitation order to utilize the CPM machine was appropriate and within the standard of care.

Following a five day trial, and after deliberating for a mere fifteen minutes, the jury returned a verdict in favor of the defense.

Defense Verdict for Urologist in Philadelphia County

by | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes

Heather Hansen obtained a defense verdict for a urologist in Philadelphia County. The plaintiff alleged that the urologist was negligent in the performance of a vesicovaginal repair suffered by the plaintiff after a hysterectomy. They contended that the urologist negligently positioned the plaintiff for the surgery and thus caused femoral and obturator neuropathies. The defense contended that the positioning was proper and within the standard of care, and that this type of injury cannot occur absent negligence.

Following a ten day trial, the jury returned a verdict in favor of the urologist as well as the co-defendant hospital and obstetrician-gynecologist.

Defense Verdict for Internist in Philadelphia County

by | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes

Dan Ryan obtained a defense verdict for internist in Philadelphia County. Plaintiff’s husband died at the age of forty two as a result of his coronary artery disease (CAD). In her Complaint, Plaintiff alleged Mr. Ryan’s client (an Internist) failed to appreciate the significance of cardiac studies taken in the months and years leading up to the death and that he should have done more to decrease or eliminate some of the risk factors Plaintiff’s husband had for developing CAD, including smoking and poor diet. The defense maintained Plaintiff’s husband’s death was both unpredictable and unpreventable over the four day trial, and the jury agreed. After deliberating just over two hours, they found Mr. Ryan’s client was not negligent.