by Mark Bauman | Feb 18, 2023 | SUCCESSES
Dorothy Duffy and Jeffrey P. Brien obtained a defense verdict in the Philadelphia Court of Common Pleas on behalf of a surgeon in a medical malpractice action. The plaintiff’s decedent came to the surgeon complaining of hemorrhoids. The surgeon recommended that she proceed with a colonoscopy before undergoing hemorrhoid removal. A colonoscopy was performed and two small polyps were removed. Otherwise, no abnormalities were seen.
Nine months later, the patient presented to the emergency room with abdominal pain. A CT scan revealed a large right-sided colon tumor, abnormal ovaries, numerous liver masses, and masses throughout her abdomen. A repeat colonoscopy showed an ascending colon mass which appeared to be an “extrinsic process.” A biopsy confirmed that this was the primary site of her cancer. Palliative treatment was initiated and the patient eventually passed away.
The plaintiff contended that the surgeon failed to perform the colonoscopy to the cecum (the beginning of the colon), thereby missing the ascending colon mass which would have been visible nine months earlier. The defendant testified that he observed the landmarks of the cecum, indicating that he performed a complete colonoscopy. The defense presented extensive expert testimony to the jury that the patient’s cancer actually began in her appendix. Primary appendeceal cancer cannot be diagnosed on colonoscopy. The appendeceal cancer spread to the outside of the patient’s ascending colon and pushed in, leading to the finding seen during the second colonoscopy. The diagnosis of primary appendeceal cancer was supported by subsequent radiology studies.
The jury found that the surgeon was not negligent, that is, that he complied with the standard of care. Therefore, the jury did not reach the question of causation. However, the defense also argued that the patient had metastatic cancer at the time of the colonoscopy. The plaintiff’s oncology expert agreed with this conclusion during his cross-examination. Therefore, the defense also argued that any delay in diagnosis did not change the patient’s prognosis or ultimate outcome.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Michael O. Pitt and Brett M. Littman obtained a defense verdict in the Philadelphia Court of Common Pleas on behalf of a family practice physician in a medical malpractice action. The plaintiff presented to the defendant-physician on several occasions between May 2008 and February 2009 with complaints, which included sore throat and reflux symptoms, for which she was treated with medications to reduce acid reflux.
In February 2009, the plaintiff again presented to the defendant-physician with now-constant throat pain, and the defendant-physician referred her to an ENT specialist. Upon visiting this specialist, the plaintiff was diagnosed with cancer of the supraglottic larynx in February of 2009, for which she was successfully treated.
The plaintiff contended that the physician failed to send her for a consult with an ENT physician sooner. The defense presented extensive expert testimony to the jury that the physician appropriately treated the patient’s complaints at each appointment and ordered a consult when appropriate. Additionally, the defense presented expert testimony to the jury that the patient has been cancer-free for nearly three years, and that her prognosis for the future is excellent.
After a short deliberation, the jury found that the physician complied with the standard of care and was not negligent.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Paul E. Peel and Brett M. Littman obtained a defense verdict in a bench trial at the Chester County Court of Common Pleas in a corporate liability action, which included allegations of fraud and breach of fiduciary duty. Mr. Peel and Mr. Littman represented the president of an emergency medicine practice who was being sued by a former officer of the group.
In 2003, several emergency physicians at a local hospital made the decision to form an independent group who would share equally in profits obtained from their practice and have autonomy over the day-to-day operations of their practice. During the same time period, this group was approached by an existing group who operated at another hospital with a plan to combine the two practices, which would afford them certain benefits, including a discount from vendors and an increase in reimbursements from insurance companies for medical services rendered.
After initial discussions, the groups sought legal counsel and determined that the only way to obtain these benefits would be for the existing group to have a 100% ownership interest in the new group. All involved in the fledgling group agreed that the benefits of being owned greatly outweighed the need for complete autonomy, particularly when they would still control the day-to-day functioning of the practice. The members of the group voted, by a four-to-one count, to go forward with the plan. The dissenting voter nonetheless acquiesced to the plan, and the new group signed a contract to provide emergency services.
This dissenting voter became increasingly dissatisfied with the operation of the business and was demoted from his position as a corporate officer and co-owner of the new practice. He was ultimately terminated, and he brought a lawsuit against the president of the new group, the group itself, the group that held the ownership interest, and the group’s attorney. Plaintiff’s claims included allegations that the president of his group defrauded him and breached a fiduciary duty by concealing the fact that the new group would be owned by the existing practice, to his detriment.
By introducing corporate minutes, corporate start-up documentation, and the testimony of all involved, the defense presented extensive evidence that all parties were aware of the ownership structure before it went into effect, and that all members of the new group knew that they were to be owned by another group. After hearing the evidence and argument of the parties, the Honorable Edward Griffith rendered a defense verdict.
In the same action, Mr. Peel and Mr. Littman also represented the group’s healthcare attorney, as the plaintiff alleged that the attorney placed the interests of the group ahead of his personal interests, which represented a legal conflict and constituted legal malpractice. This action was dismissed pursuant to successful preliminary objections prior to trial.
Mr. Peel and Mr. Littman also represented the fledgling group and the group that held the ownership interest. Claims against these parties were also dismissed pursuant to successful preliminary objections prior to trial.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Heather Hansen secured a defense verdict in favor of an emergency medicine physician following an eight day jury trial in Philadelphia County, Pennsylvania.
The patient was 18 years of age and the lawsuit was brought by his father. The patient had a history of passing out with exertion which was previously worked up by pediatric cardiologists and no further treatment was recommended. In 2007, the patient was playing football when he experienced chest pain and shortness of breath. He was taken to a local emergency room, and the emergency medicine physician consulted trauma and cardiology within minutes of his arrival. EKG’s were obtained and were abnormal. He was seen by cardiology and was in the process of being admitted to the CCU when he passed away from a rare cardiac defect. Specifically, the cause of death was an anomalous origin of the left coronary artery.
The plaintiff’s expert witnesses alleged that the emergency medicine physician was responsible for all of the care since he was still in the emergency room, despite being in the process of being admitted to the CCU. Plaintiff’s experts also alleged that other medications should have been given, the attending cardiologist should have been called, and the patient should have been taken to the catheterization lab. The documentation and medical care provided by the cardiology staff was also criticized. Plaintiff had claims for wrongful death and survival, including a claim for lost earnings.
The defense was that the emergency medicine physician obtained the appropriate consultations in an extremely timely and appropriate manner, and provided treatment that was appropriate. It was not the standard of care for an emergency medicine physician to take such patients to the catheterization lab, and evidence was presented that his death could not have been prevented due to his rare cardiac defect. The jury determined that the emergency medicine physician was not negligent.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Daniel F. Ryan, III and Brett M. Littman obtained a defense verdict in the Bucks County Court of Common Pleas on behalf of an emergency department physician in a medical malpractice action.
In November 2002, the plaintiff presented to the emergency department with neurological complaints, including right-sided weakness and difficulty with speech. The defendant-physician ordered diagnostic tests and lab studies to determine the cause of the symptoms and, with the help of consulting neurologists, formulated a treatment plan.
The plaintiff contended that the physician failed to administer tPA, a “clot-busting” medication. According to the plaintiffs, this medication would have prevented the development of a stroke, which he ultimately suffered and which left him with significant disabilities.
The defense presented extensive expert testimony to the jury that the plaintiff was absolutely not a candidate to receive tPA, given his presentation, which included rapidly improving symptoms. These symptoms occurred, resolved, and then re-occurred. The defense also explained that emergency physicians often rely on consultations with specialists, such as neurologists, and that the defendant was justified in relying on the expertise of consultants in order to establish a treatment plan.
After a short deliberation, the jury found that the physician complied with the standard of care and was not negligent.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
UPDATE: Third Circuit Upholds Dismissal on Appeal (See below)
O’Brien & Ryan attorneys Dan Ryan, Anthony P. DeMichele, and Jeffrey P. Brien 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.
