Defense Verdict on Behalf of Family Physicians in Discrimination Case in District Court

by | Oct 4, 2013 | Other Venues, Professional Liability, Successes

Marshall L. Schwartz and Paul E. Peel recently obtained a defense verdict in favor of two family physicians and their medical group in the United States District Court for the Eastern District of Pennsylvania.  The plaintiff, who is deaf, alleged that the defendants violated the federal Rehabilitation Act, 29 U.S.C.§ 794, et. seq., while she was their patient by failing to provide reasonable accommodations for her disability.  Specifically, the plaintiff claimed that she requested a sign language interpreter for each of her appointments but was not provided one.  As a result, plaintiff maintained that she was unable to effectively communicate her problems and concerns to the defendants.  She contended that she felt humiliated and disrespected by the way the defendants treated her while she was their patient.  The plaintiff also alleged that the defendants ended their physician-patient relationship with her solely because of her disability.

Defendants argued that the plaintiff had advised them that she did not need an interpreter at her appointments because she was able to communicate through reading lips and passing written notes.  The defendants explained that, if there was any potential misunderstanding or if they needed to clarify something for the plaintiff, then they would write notes for her to read.  The defendants asserted that, during the entire time that she was their patient, the plaintiff never asked for an interpreter or indicated that she could not understand the defendants and that the defendants never had any difficulty communicating with her.  Defendants also established that their office policy required that an interpreter be provided if a patient requested one. Finally, the defendants testified that they ended their physician-patient relationship with the plaintiff, not because she was deaf, but rather, because she compromised the relationship by verbally abusing a member of their staff.

After deliberating for less than an hour, the jury returned a unanimous verdict in the defendants’ favor, finding that the defendants did not violate the Rehabilitation Act.

Superior Court Affirms Judgment of Non Pros on Behalf of Attorney

by | Oct 4, 2013 | Legal Malpractice, Other Venues, Successes

Marshall L. Schwartz recently prevailed in the Superior Court after the plaintiff failed to file a certificate of merit and a judgment of non pros was entered in the Court of Common Pleas of Philadelphia County.

The attorney represented by Mr. Schwartz and Mr. Brien represented the plaintiff in four separate matters: the filing of a writ of habeas corpus, representation in an extradition proceeding, an appeal of the denial of an expungement petition, and an appeal of the denial of an assessment of costs and modification of sentence.  The plaintiff alleged that his representation in each of these matters was deficient and filed a complaint with causes of action for malpractice, breach of contract, unjust enrichment, and negligence.  However, he did not file a certificate of merit.

Accordingly, the defendant filed a Notice of Intention to Enter Judgment of Non Pros of Professional Liability Claim.  The plaintiff responded by filing a Motion to Determine Necessity of Certificate of Merit.  The Honorable William J. Manfredi denied the motion and ordered the plaintiff to file a certificate of merit.

Prior to the deadline to file a certificate of merit, the plaintiff filed a “Motion to Place This Matter In Deferred Status.”  When the deadline elapsed, the defendant entered a judgment of non pros.  The plaintiff filed a Petition to Strike And/Or Open Judgment of Non Pros.  The Honorable Marlene F. Lachman issued an Order denying the petition.  The plaintiff appealed.

The Superior Court affirmed the Order of Judge Lachman.  In a Memorandum authored by the Honorable Jacqueline O. Shogan, the Superior Court found that a certificate of merit was required for each cause of action in the plaintiff’s complaint because each implicated the attorney’s overall exercise of care and professional judgment in carrying out his work for the plaintiff.  Additionally, even if no expert testimony was required at trial, the plaintiff was still required to file a certificate of merit stating as such as set forth by the Pennsylvania Rules of Civil Procedure.

The Superior Court further held that the plaintiff’s Motion to Determine Necessity of Certificate did not constitute a motion for an extension of time to file a certificate of merit, which would have prevented the defendants from entering a judgment of non pros while the motion was pending.  Finally, the Superior Court held that the plaintiff’s complaint did not set forth a meritorious cause of action, a requirement to open a judgment of non pros. 

Successful Defense of Attorney and Firm at Arbitration

by | Oct 4, 2013 | ADR, Legal Malpractice, Successes

Anthony P. DeMichele successfully defended an attorney and his firm at arbitration in a matter involving claims of professional negligence.  The plaintiff was a musician and music producer who claimed that he entered into a contract with a legendary music artist to produce for distribution original songs written and performed by the legendary music artist.  Plaintiff claimed that the legendary music artist breached the contract, and as a result, Plaintiff filed a lawsuit seeking damages for the alleged breach of contract.  Plaintiff retained the services of several attorneys to pursue his breach of contract claim.  After a default judgment was obtained in the breach of contract claim, Plaintiff presented his case for damages at an assessment of damages hearing in Philadelphia County Court of Common Pleas.  However, after hearing testimony from expert witnesses for both Plaintiff and the legendary music artist, the judge determined that no monetary damages were suffered and awarded no damages to the plaintiff.  As a result of that decision, the plaintiff filed suit against all of the attorneys who represented him in his breach of contract claim.  Plaintiff alleged that, due to a poorly drafted complaint and failure to present sufficient evidence at the assessment of damages hearing, he suffered the loss of the monetary damages he was entitled to under the terms of the contract he entered into with the legendary music artist.  Mr. DeMichele and Mr. Brien represented the attorney and his firm who handled the assessment of damages hearing.

With regard to the allegedly deficient complaint, Plaintiff argued that the default judgment should have been opened and the complaint amended in order to correct the alleged deficiencies.  Defendants countered that it was an appropriate strategy to preserve the default judgment and not open the default judgment in order to amend the allegedly deficient complaint.  Further, Defendants argued that sufficient expert testimony and exhibits were presented at the assessment of damages hearing, which were entered into evidence without objection from opposing counsel.  Defendants also presented evidence that any potential judgment in the underlying breach of contract claim was uncollectible because the estate for the legendary music artist had no assets.  The inability to collect a judgment is an affirmative defense to a legal malpractice claim.  The arbitration panel agreed with Defendants arguments and entered an award in favor of Defendants on all claims.

Successful Defense of MRI Facility & Technologist at Arbitration

by | Sep 13, 2013 | ADR, Professional Liability, Successes

Anthony P. DeMichele successfully defended an MRI facility and one of its technologists at arbitration in a matter involving claims of professional negligence. Plaintiffs were husband and wife and claimed that the husband was injured when he fell from a MRI table after his MRI was completed. The wife brought a claim for loss of consortium. Plaintiffs argued that the MRI facility and its technologist were liable because the technologist failed to safely remove the husband from the table after the MRI machine malfunctioned. Mr. DeMichele argued that the MRI facility had appropriate policies and procedures in place for the safe removal of its patients in the event of a table malfunction and that the technologist followed these policies and procedures. Further, Mr. DeMichele argued that it was the husband’s own actions and failure to follow the instructions that were provided to him, which caused him to sustain his alleged injuries. Mr. DeMichele also argued that the husband’s alleged injuries were inconsistent with the medical records from his treating physicians. The arbitration panel agreed with Mr. DeMichele and entered an award in favor of the MRI facility and its technologist on all claims.

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.