by Mark Bauman | Mar 13, 2023 | Legal News, Other News
In Hohns v. Gain, M.D., ___ A.2d. ___ (Pa. Super. 2002), the plaintiff sued a surgeon for failure to obtain informed consent prior to the performance of a repeat breast biopsy. The plaintiff had previously undergone breast biopsies in the late 1980s due to a positive family history of breast cancer. One of her prior biopsies was positive for carcinoma in situ after which an additional biopsy was performed to assure that there was no additional cancerous tissue. The biopsy at issue was performed in 1997 after the plaintiff developed breast firmness. The biopsy was recommended to rule out the recurrence of cancer. The plaintiff alleged that she suffered an inferior cosmetic result requiring reconstructive surgery. She alleged that she was not told that substantial disfigurement could result and had she been told, she would have obtained more information and would not have come to any quick decisions about having the biopsy.
A trial, the jury determined that while the doctor failed to obtain informed consent, the failure was not a substantial factor in bringing about the harm. On appeal, the Superior Court agreed. It found that the plaintiff’s overriding reason for having the biopsy was because she wanted to be sure that she was 100% cancer free. According to the Court, “if other factors completely dominate the patient’s decision to proceed with a procedure, [the] lack of information cannot be deemed substantial.”
This case illustrates that claims for failure to obtain informed consent cannot be looked at in a vacuum and that it is helpful to consider other factors which contribute to a patient’s consent and the effect that the other factors bear on producing that consent.
by Mark Bauman | Mar 12, 2023 | Commercial Litigation & Corporate Law, Legal News
O’Brien & Ryan, LLP prepares and reviews employment contracts for health care practitioners, as well as for employers and employees outside of the health care industry. Typically, these contracts include a restrictive covenant, which is commonly referred to as a non-competition provision. The restrictive covenant aims to protect an employer from an employee who leaves the employment relationship and then seeks employment that is in direct competition with the former employer. The restrictive covenant places limitations on where the former employee is permitted to work and also provides a time period in which the limitation applies. The effectiveness and reasonableness of the restrictive covenant has been frequently challenged and therefore, it is imperative to fully understand the intricacies of the restrictive covenant before entering into the employment contract.
In addition to restrictive covenants, employment contracts will discuss benefits and compensation. Employers and employees need to carefully scrutinize the benefits and compensation that will be offered and accepted in order to ensure that a fair and reasonable package is being offered. Without ample consideration of the benefits and compensation, the employer or employee could be faced with a long-term commitment that does not provide what is rightfully deserved.
For more information on employment contracts, please contact Anthony P. DeMichele.
by Mark Bauman | Mar 11, 2023 | Commercial Litigation & Corporate Law, Legal News
O’Brien & Ryan, LLP handles a substantial number of commercial litigation claims. Of interest, O’Brien & Ryan, LLP is currently representing a dental practice that was recently sold to a purchasing dental group. This transaction involved an asset purchase agreement, restrictive covenants, leases, a commercial note and other related documents that are involved with this type of business transaction. Shortly after the transaction was finalized, the purchasing group claimed that there were several breaches of the asset purchase agreement and related documents. The existence of an arbitration agreement in the asset purchase agreement prompted the purchasing group to file a demand for arbitration with the American Arbitration Association.
In addition to handling the typical construction litigation claims involving disputes between owners, general contractors, subcontractors, design professionals and sureties, O’Brien & Ryan, LLP is currently embroiled in a construction litigation claim involving successor in interest liability. This type of a claim adds a twist to the typical construction litigation claim and involves a theory of recovery against an acquiring corporation that purchases the assets and liabilities of a corporation that was involved in the underlying construction dispute.
These are just a small sampling of the commercial litigation matters that O’Brien & Ryan, LLP is currently handling. For more information on the commercial litigation department at O’Brien & Ryan, LLP, please contact Anthony P. DeMichele.
by Mark Bauman | Jul 18, 2022 | Community
Each year, on a state-by-state basis, Super Lawyers selects attorneys using peer nominations and evaluations along with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement, and those selected represent the top five percent of the total lawyers in each state.
In 2022, five OBR partners were selected to PA Super Lawyers & four associates were selected to the Rising Stars list.
PA Super Lawyers:
* Top 100 PA & Philadelphia
by Mark Bauman | Jul 17, 2022 | Community
In Memoriam – John F. O’Brien, III
We remember and honor our cherished partner and friend, John F. O’Brien, III, who recently passed away after a long illness.
John will remain forever in our hearts.
