2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Barrick, at *34-35.Furthermore, the written communication between counsel andan expert witness retained by counsel is not discoverable underthe Pennsylvania Rules of Civil Procedure to the extent thatsuch communication is protected by the work-productdoctrine, unless the proponent of the discovery request showspursuant to Pa.R.C.P. 4003.5(a)(2) specifically why thecommunication itself is relevant. As such, we also hold thatPa.R.C.P. 4003.3 immunizes from discovery any work productcontained within the correspondence between Appellants'counsel and Dr. Green.B. Release1. Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478 (Pa. 2009)This important case held that a release of a principal, who was only liable under vicariousliability, does not release the agent. In Mamalis v. Atlas Van Lines, 560 A.2d 1380 (Pa. 1989),the Supreme Court held that release of the agent operated to release the principal who was liablefor vicarious liability. The release of the active tortfeasor released the passive tortfeasor. Laterin Pallante v. Harcourt Brace Jovanovich, 629 A.2d 146 (Pa. 1993), the court held that theopposite was also true.In Maloney, the plaintiff settled with the vicariously liable principal, and the releaseattempted to carve out the agent. The agent moved for summary judgment citing Pallante, andthe trial court granted the motion. The Superior Court affirmed, reasoning that there was a singleact that caused the damage. The Supreme Court reversed, essentially reversing Pallante, andholding that where the plaintiff releases a principal for vicarious liability only, and preserves itsclaim against the agent, the claims against the agent are not released.2. Tindall v. Friedman, 970 A.2d 1159 (Pa. Super. 2009)The court addressed the issue of whether a release including language that explicitlyreserves the right of the plaintiff to pursue excess insurance policy coverage applies to theMCARE fund. It is well settled Pennsylvania law that the court will scrutinize releaseagreements to a contract law analysis. Here, the plaintiff brought a medical malpractice claimagainst multiple parties including Dr. Schweitzer, the physician responsible for the reading of theMRI. Specifically, the plaintiff alleged that Dr. Schweitzer failed to follow the primary carephysician’s orders to analyze the plaintiff’s MRI results for a calcified hematoma or a neoplasm,the latter being cancerous. Due to this failed procedure, the cancer diagnosis was delayed andthe plaintiff endured an increased injury, additional medical costs, and a number of avoidableinjuries. Before the trial commenced, the plaintiff agreed to a partial release of Dr. Schweitzerthat provided in exchange for $400,000, the primary medical insurance coverage limit, hispersonal assets would not be pursued. Further, the release agreement expressly stated that theplaintiff reserved the right to pursue Dr. Schweitzer and all other defendants to collect primaryand excess insurance policies regarding this matter.142