by Mark Bauman | Feb 18, 2023 | SUCCESSES
Daniel F. Ryan, III obtained a defense verdict for a cardiothoracic surgeon in Philadelphia County. In this case, the decedent underwent a ventral septal defect repair procedure on November 15, 2000. The decedent subsequently underwent a second emergency heart surgery, during which a surgical sponge was left in her. A third surgery was performed on November 17, 2000 to remove the retained sponge.
In September of 2001, decedent was admitted to the hospital after what was believed to be a transient ischemic attack. On echocardiogram, it was discovered that she had a mass on her left atrium. She underwent surgical resection of this mass, which was cultured and found to be negative for infection. During the same procedure, the decedent underwent mitral valve repair and removal of part of the prior pericardial patch repair. The final culture of the removed portion of the pericardial patch repair was also negative.
On October 2, 2001, decedent developed severe mitral regurgitation and was taken emergently back to the operating room. In the operating room, she became hypotensive and physicians attempted access to the right femoral vessels to establish cardiopulmonary bypass, which was unsuccessful. Physicians were able to establish cardiopulmonary bypass by right thoracotomy. The decedent underwent mitral valve replacement, but she could not be separated from cardiopulmonary bypass and was pronounced dead in the operating room.
Plaintiff alleged a breach of the standard of care for the retained sponge and failure to perform a post-operative chest x-ray to determine whether a sponge had been left in her following the emergency surgery. Plaintiff also contended that the delay in diagnosing the presence of the sponge resulted in a delay in removal, increased risk of harm and post-operative complications.
Following an eight day trial, the jury entered a defense verdict.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Paul Peel received a favorable ruling for a nursing home from the Superior Court of Pennsylvania. In Wister v. Liberty Nursing & Rehabilitation Ctr., 200 EDA 2005 (Pa. Super. October 17, 2005), the Superior Court of Pennsylvania reversed a trial court’s decision and dismissed plaintiff’s action for failure to timely file a Certificate of Merit as required by Pa.R.C.P. 1042.3. In the underlying action, plaintiff alleged that a nursing home failed to properly transfer her to another nursing home. As result of this improper transfer, the plaintiff did not receive certain medications which caused her serious and permanent injuries.
After plaintiff failed to timely file a Certificate of Merit, both nursing homes filed a Praecipe for Entry of Judgment of Non Pros which was granted by the trial court. Plaintiff then filed a Motion to Open the Judgments arguing that she did not assert a professional liability claim, as the defendants were not medical professionals and Certificates of Merit were not required. Further, plaintiff alleged that her claims against the defendants were administrative and clerical, not professional. The trial court agreed with plaintiff’s argument and ruled that the Judgments of Non Pros were improperly entered. The trial judge relied upon Judge Wettick’s opinion in Herrmann v. Pristine Pines of Franklin Park, Inc., 64 D.&C. 4th 14 (C.P. Allegheny County, 2003), stating that the defendants waived their right to file Praecipes for Judgment of Non Pros because they did not file preliminary objections to plaintiff’s complaint. In accordance with the opinion in Hermann, the trial judge stated that if plaintiff’s complaint did not expressly assert a professional liability claim, the defendants were to file preliminary objections. As neither defendant filed preliminary objections raising this issue, the defendants waived their claim that plaintiff violated Pa.R.C.P. 1042.3 and were not entitled to Non Pros judgments.
On appeal to the Superior Court, Mr. Peel argued that a nursing home clearly falls under the definition of a healthcare provider as defined by 40 P.S. § 5101.1(c). Further, Mr. Peel contended that the plaintiff’s complaint clearly sounded in professional negligence and therefore she was required to file a Certificate of Merit. The Superior Court agreed with Mr. Peel’s arguments and stated that plaintiff’s allegations of a nursing home’s failure to send a patient’s records to another nursing home and the second nursing home’s failure to realize that insufficient information was sent falls under the “furnishing of health care services.” Pa. C.S.A. § 5101.1(c). Accordingly, plaintiff’s action was sounded in professional negligence which required a Certificate of Merit. The entry of Non Pros was proper and the trial court’s opening of the judgment was reversed.
by Mark Bauman | Feb 18, 2023 | 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 | Feb 18, 2023 | 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 | Feb 18, 2023 | SUCCESSES
Daniel F. Ryan, III obtained a defense verdict for an orthopedic spine surgeon in Camden County, New Jersey. In 2002, 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.
