Defense Verdict for Orthopedic Surgeon in Philadelphia County

by | Aug 20, 2012 | Medical Malpractice, Philadelphia, Successes

Heather Hansen obtained a defense verdict for an orthopedic surgeon in Philadelphia County, Pennsylvania. In 2003, Plaintiff underwent a right total knee arthroplasty procedure. After the procedure, Plaintiff allegedly suffered from pain, stiffness and decreased range of motion. A manipulation procedure was performed, but Plaintiff continued to complain of pain, stiffness and decreased range of motion. The following year, Plaintiff underwent a revision of the total knee arthroplasty procedure with a different orthopedic surgeon. A smaller sized tibial insert was used by the second surgeon. Plaintiff alleged an improvement in his range of motion after the revision procedure.

Plaintiff alleged that the initial orthopedic surgeon used an incorrectly sized tibial insert which caused a restricted range of motion, pain, stiffness, and altered gait. Plaintiff further alleged he could no longer perform his usual activities. The defense maintained that the component was the correct size, but Plaintiff unfortunately suffered from stiffness which is a known complication of the procedure. Plaintiff also did not follow post-operative instructions that were provided, and used weights against the specific, written orders of the orthopedic surgeon. The medical records also demonstrated that Plaintiff’s range of motion did not improve after the smaller component was used in the revision procedure.

After a three day trial, the jury returned with a defense verdict.

Superior Court of Pennsylvania Affirms Trial Court’s Entry Of Judgment On Verdict In Favor Of Two Physicians And A Hospital

by | Aug 20, 2012 | Hospital Liability, Other Venues, Successes

The Superior Court of Pennsylvania recently affirmed the trial court’s entry of judgment on the verdict in favor of two physicians and a hospital in McNulty v. Thomas Jefferson University Hospitals, Inc. In McNulty, the plaintiffs commenced a wrongful death/survival action against the defendants alleging that the defendants breached the standard of care by: (1) leaving a surgical sponge behind the decedent’s heart during an emergent operation, (2) failing to properly check for retained sponges during and after the operation, and (3) failing to surgically remove the retained sponge for two days. The plaintiffs asserted that the defendants’ combined negligence was a substantial factor in causing the decedent to develop an infection, which remained dormant in her body for more than ten months, but ultimately led to her untimely death. However, during trial, the defendants presented evidence that the decedent did not suffer from an infection related to the retained sponge. This evidence included testimony from an infectious disease specialist who treated the decedent only days before she died. Finding this evidence persuasive, the jury returned a verdict in the defendants’ favor, concluding that the two physicians were negligent, but that their negligence was not a substantial factor in causing the decedent any harm.

Following the entry of judgment in the defendants’ favor, the plaintiffs filed an appeal to the Superior Court, arguing that the trial court erred by admitting the testimony of the infectious disease specialist on the grounds that he was not identified as a possible witness before trial. The plaintiffs further asserted that the jury’s verdict in the defendants’ favor was contrary to the weight of the evidence presented. Therefore, the plaintiffs maintained that the Superior Court should vacate the trial court’s judgment in the defendants’ favor and remand the matter to the lower court for a new trial.

However, the Superior Court rejected the plaintiffs’ arguments and affirmed the trial court’s entry of judgment in the defendants’ favor. With respect to the plaintiffs’ first allegation of error, the Superior Court held that the trial court did not abuse its discretion by permitting the defendants to call the treating infectious disease specialist to the stand even though he was not specifically identified in the defendants’ witness lists. In reaching this holding, the Superior Court observed that the plaintiffs were well aware of the treating physician’s pending testimony before trial as they attempted to preclude it by filing a motion in limine. The Superior Court further noted that, because the infectious disease specialist had treated the decedent, he was well known to the plaintiffs and their attorney and could have been interviewed by the plaintiffs at any time before trial without the need to engage in formal discovery. Therefore, the Superior Court concluded that the infectious disease specialist’s testimony was not surprising and did not unfairly prejudice the plaintiffs’ case. Accordingly, the Superior Court held that the plaintiffs’ first allegation of error was clearly without merit.

The Superior Court also rejected the plaintiffs’ second allegation of error. In support of this issue, the plaintiffs asserted that the verdict was clearly against the weight of the evidence in light of the uncontroverted testimony that the decedent was compelled to undergo an additional operation due to the defendants’ negligence in leaving a surgical sponge inside her chest. However, after noting that its scope of review was limited to determining whether the trial court’s determination was manifestly erroneous, arbitrary and capricious, or flagrantly against the evidence, the Superior Court rejected the plaintiffs’ argument on this issue. In reaching this conclusion, the Superior Court adopted the trial court’s determination that, if the only negligence attributable to defendants was that they either failed to timely discover the retained sponge or failed to perform the sponge removal operation sooner, then the jury could reasonably have concluded that defendants were not responsible for the sponge removal surgery since that operation would have been required even in the absence of negligence. Therefore, since the Superior Court found the plaintiffs’ allegations of error to be completely without merit, the Court affirmed the trial court’s entry of judgment in the defendants’ favor.

Arbitration Award for Employee against Former Employers

by | Aug 20, 2012 | ADR, Commercial Liability / Litigation, Successes

Anthony P. DeMichele obtained an arbitration award in favor of a former employee in a Bucks County employment litigation matter. The defendants, the former employers of the plaintiff, failed to pay the plaintiff his earned wages, bonuses and commissions. The matter proceeded to arbitration under the theories of breach of contract and unjust enrichment. The former employee was awarded the full amount claimed in his complaint, as well as attorneys’ fees.

Defense Verdict for Family Doctor and Practice in Montgomery County

by | Aug 20, 2012 | Medical Malpractice, Montgomery County, Successes

Tracie A. Vizza obtained a defense verdict for a family doctor and his practice, in Montgomery County, Pennsylvania. The case involved a 32 year old man who died from massive, bilateral pulmonary emboli during a visit to a local hospital. A week prior to his trip to the hospital, the decedent called his family doctor’s office, with complaints. A nurse at the practice acted as an intermediary between the patient and the doctor. The doctor prescribed antibiotics for the patient, as well as cough medication and Tylenol, which was noted in the chart. None of the patients complaints were documented in the chart, nor was a diagnosis. Further, the nurse passed away in the interim. The doctor had no recollection of what complaints were relayed to him via his nurse. The decedent’s wife testified that the complaints included significant, recurrent shortness of breath and recurrent chest pain, Seven days later, the patient presented to the emergency department of a local hospital with complaints of shortness of breath and passed away 7 hours later. An autopsy revealed bilateral, massive pulmonary emboli.

Plaintiff’s theory was that the decedent had been suffering from showers of pulmonary emboli as long as a month prior to his death. Plaintiff based this theory on the fact that the decedent had called his family doctor’s office two weeks prior to the telephone call at issue, with complaints of shortness of breath and rib cage pain, and was told to come into the office. The decedent did go to the doctor’s office and get examined by an associate of the defendant, family doctor, in the same practice, who after performing an exam and ordering tests, including a chest x-ray, diagnosed the decedent with pneumonia and treated him with antibiotics. Although plaintiff did not allege negligence in that treatment, plaintiff’s experts testified that the decedent was not suffering from pneumonia at that time, but was instead experiencing pulmonary emboli for the first time. Accordingly, plaintiff alleged that the defendant, family doctor, upon getting the phone call, should have been aware, upon reviewing the decedent’s chart and hearing the complaints, that the earlier diagnosis of pneumonia may have been erroneous and the decedent needed to get worked up for pulmonary emboli. The defense maintained that the pulmonary emboli were a sudden, catastrophic event.

In addition to the family doctor, the emergency room doctor, the pulmonologist, who consulted the patient in the emergency room, and the hospital were all named in the suit. After a two week trial, the jury found in favor of each of the named medical providers, after deliberating for one hour and 45 minutes.

Successful Defense of Real Estate Holding Company and One of its Members in Successor-In-Interest Liability, Fraudulent Conveyance, and Piercing the Corporate Veil Matter

by | Aug 20, 2012 | Commercial Liability / Litigation, Other Venues, Successes

Anthony P. DeMichele successfully defended a real estate holding company and one of its members in the Court of Common Pleas of Northampton County. The case was an offshoot of an underlying lawsuit wherein the plaintiff school district filed a lawsuit against several defendants due to alleged defects in the construction of a local high school. One of the defendants in that case was a subcontractor for the project. That subcontractor joined several additional defendants, including a real estate holding company and its members, claiming that the additional defendants were liable under theories of successor liability and fraudulent conveyance. Additionally, the subcontractor attempted to hold the individual members liable under a theory of piercing the corporate veil because it claimed the corporate successor entities were merely sham corporations and the alter egos of the individual members.

Following a seven day bench trial, the Judge entered an opinion and decision in favor of all defendants and against the subcontractor that joined the additional defendants to the underlying construction dispute. The Judge concluded that the subcontractor failed to prove any basis for successor liability, that the subcontractor failed to prove that a fraudulent conveyance occurred, and that the subcontractor failed to prove that any of the corporate entities were sham corporations thus prohibiting the piercing of the corporate veils and denying liability against the individual members.

Favorable Ruling from Superior Court of Pennsylvania in Certificate of Merit Matter

by | Aug 20, 2012 | Medical Malpractice, Other Venues, Successes

Paul Peel received a favorable ruling from the Superior Court of Pennsylvania. In Harris v. Neuberger, the Superior Court of Pennsylvania reversed a trial court’s order that granted a plaintiff’s Petition to Open Judgments of Non Pros and remanded the matter to the trial court with instructions to enter judgment in favor of the defendants.

Defendants’ appeals concerned the trial court’s refusal to apply the Supreme Court’s recent decision in Womer v. Hilliker. 589 Pa. 256, 908 A.2d 269 (2006), and concomitant refusal to reinstate the entry of judgments of non pros in defendants’ favor due to plaintiff’s failure to timely file any Certificates of Merit. Although the trial court acknowledged that the Supreme Court expressly stated in Womer that it disapproved of an earlier decision by the Superior Court in Harris, the trial court nevertheless refused to reinstate the judgments of non pros in defendants’ favor because it believed that the Superior Court’s initial decision on this issue remained the law of the case. The trial court also held that the defendants waived their right to have the court apply the Supreme Court’s holding in Womer to this matter by failing to request allocatur after the Superior Court decided the initial appeal in this case.

On appeal to the Superior Court, Mr. Peel argued that the “law of the case” doctrine did not bar the trial court from applying Womer’s holding to this matter since the case clearly fell within two exceptions to that doctrine. Specifically, he asserted that the case fell within the exception to the doctrine that permits courts to reconsider questions previously decided by the same, or a higher, court when the prior court’s holding was clearly erroneous and would create a manifest injustice if followed. Mr. Peel also maintained that, to the extent that Womer represented a change in the controlling law, as plaintiff and the trial court suggested, the trial court would be permitted to depart from the “law of the case” doctrine on this basis as well.

Moreover, Mr. Peel contended that there is no authority in the Commonwealth of Pennsylvania that holds that a party is required to immediately seek allocatur from a ruling on an interlocutory appeal by an intermediate appellate court to preserve the right to have the order reviewed on an appeal at a later stage of the litigation. To the contrary, Mr. Peel argued that, since the Supreme Court always retains the authority to review the merits of an interlocutory order until an appeal is taken from a final judgment, defendants could not have waived their right to have the trial court’s interlocutory order reviewed in light of Womer’s holding simply because they chose not to seek allocatur during an earlier appeal to the Superior Court.

Finally, Mr. Peel disputed plaintiff’s argument that Womer’s holding should not be applied to this case because it would constitute an unfair retroactive application of a new rule of law. Mr. Peel specifically asserted that Womer did not actually announce a new rule of law, but rather, merely clarified what the existing law on Certificates of Merit was. Mr. Peel also contended that, even if Womer’s holding could be considered a new rule of law, the Supreme Court clearly intended for that holding to be applied retroactively to all pending cases since the Court did not expressly declare that its ruling was to be prospective only. In addition, Mr. Peel noted that, to the extent plaintiff was prejudiced by the amount of resources he invested in this case thus far, that prejudice certainly paled in comparison to other cases where changes in the law were retroactively applied and resulted from plaintiff’s own failure to comply with the Supreme Court’s rules.

The Superior Court agreed with Mr. Peel’s arguments and reversed the trial court’s order which granted plaintiff’s Petition to Open Judgments of Non Pros. In reaching these rulings, the Superior Court specifically found that Womer did not effect a change in the prevailing law, but merely provided guidance on the proper interpretation of a rule promulgated by the Supreme Court. Therefore, the Superior Court concluded that the “law of the case” doctrine did not preclude it from reconsidering its own earlier decision, especially since there was no final judgment entered in this matter. Accordingly, the Superior Court remanded this matter to the trial court with instructions to enter judgment in favor of defendants.