by Mark Bauman | Feb 18, 2023 | SUCCESSES
Marshall L. Schwartz and Brett M. Littman recently obtained a verdict on behalf of a surgeon and hospital in a four day jury trial involving allegations of negligence in the performance of a laparoscopic hernia repair.
This case involved a patient who first underwent surgery to remove a mass on her appendix, which was suspicious for malignancy. Several months after this surgery, the patient developed a hernia, which the defendant-surgeon planned to repair laparoscopically.
Plaintiff alleged that when the surgeon repaired the hernia, he negligently perforated her bowel with a harmonic scalpel, which is a device that uses high-frequency vibrations to generate heat and cut through tissue. Plaintiff further alleged that the surgeon failed to properly inspect the bowel for any signs of injury. This perforation caused an infection and required a prolonged recuperation.
The defense successfully argued that even though the surgeon perforated the bowel, any such injury was a recognized risk of the procedure and did not constitute negligence. In support of this argument, the defendants called an expert in laparoscopic surgery who corroborated this defense.
The jury ultimately found that the defendant was not negligent.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Heather Hansen, Melissa L. Mazur, and Paul E. Peel recently obtained a defense verdict in favor of an orthopedic surgeon in a medical malpractice action in Delaware County.
Plaintiffs’ allegations of negligence related to the care rendered following the performance of a total knee arthroplasty performed by the defendant physician. Plaintiffs claimed that the defendant failed to utilize appropriate infection prophylaxis and failed to administer post-operative antibiotics, which ultimately led to the development of infection. Plaintiffs alleged that the defendant physician deviated from the standard of care by failing to timely recognize and treat the infection.
The defense maintained that the plaintiff did not exhibit any signs or symptoms indicative of infection following the surgery, through the time that the plaintiff was treating with the defendant physician.
After a five day trial and a brief deliberation, the jury returned a verdict in favor of the orthopedic surgeon.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Michael O. Pitt and Jared M. Teich recently obtained a defense verdict on behalf of an emergency room physician in a nine day jury trial involving allegations of a failure to diagnose an epidural abscess.
This case involved a patient who presented to the emergency department with complaints of back pain, anxiety, fever, nausea, and vomiting. The plaintiff had a longstanding history of drug and alcohol abuse, and admitted to treating his chronic back pain with heroin. Shortly after his initial presentation to the emergency department his symptoms improved and he was diagnosed with acute back pain and narcotic withdrawal.
The next day, blood cultures that were ordered in the emergency department revealed the plaintiff had methicillin resistant staph aureus bacteremia. Although this is a treatable condition, it can be life threatening if not treated timely. Unfortunately for the plaintiff, the hospital staff was unable to reach him on the telephone number he provided the previous day. Further, despite increased symptoms that included weakness and tingling in the legs, the plaintiff failed to return to the emergency room as instructed. Instead, the plaintiff continued to use heroin to treat his symptoms. The plaintiff finally returned to the emergency department the following day, and is now paralyzed from the chest down.
The defense successfully argued that even though the emergency room physician discharged the plaintiff with a diagnosis of acute back pain and narcotic withdrawal, plaintiff’s presenting symptoms were consistent with this diagnosis. In support of this argument, experts in emergency medicine and infectious disease were called to testify and supported this defense.
After deliberation, the jury returned a unanimous 12 – 0 verdict, finding that the defendant physician’s treatment of the plaintiff was not negligent.
by Mark Bauman | Feb 18, 2023 | 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 | Feb 18, 2023 | SUCCESSES
Heather Hansen and Melissa L. Mazur recently obtained a defense verdict on behalf of an obstetrician in Philadelphia. In this case, Plaintiffs alleged negligence in relation to labor and delivery at a Philadelphia hospital. Plaintiffs claimed that the defendant failed to recognize and interpret the signs and symptoms of placental abruption, failed to diagnose and treat placental abruption, failed to timely respond to signs of fetal distress, and delayed in the performance of a cesarean section. Plaintiff produced an obstetrics and gynecology expert that criticized the time the cesarean section was called, and opined that the delivery should have been called 16 to 18 minutes earlier. The defense maintained that the obstetrical team recognized and responded to the fetal bradycardia immediately, and performed all necessary resuscitative measures in an attempt to regulate the fetal heart rate, before calling an emergent cesarean section. The baby was delivered within ten minutes from the time the attending obstetrician called the emergency cesarean section.
After a three day trial and brief deliberation, the jury returned a verdict in favor of the attending obstetrician.
