2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

(b) the utility of the defendant’s conduct, (c) the nature and forseeability of the given risk,(d) the consequences of imposing the duty, and (e) the overall public interest in imposing agiven duty – the factors weighed against the creation of duty. Notably, the Court indicated,in varying with the Superior Court’s decision in Elias v. Lancaster Gen. Hosp., 710 A.2d 65(Pa. Super. 1998), that not even a special relationship can serve to give rise to a cause ofaction for negligent spoliation. Pyeritz at *18.3. Zaleppa v. Seiwell, 2010 Pa. Super. 208 (Pa. Super. Ct. 2010)In Zaleppa v. Seiwell, the court held that the Medicare Secondary Payer Act (“MSPA”)allows only the United States government to recover outstanding conditional Medicarepayments, and that private entities may not file lawsuits on behalf of the government. InZaleppa, the trial court returned a verdict against the defendant to a car accident suit. Thedefendant filed a post-trial motion, which the trial court denied, to include not only Zaleppa, butalso Medicare, as payees when satisfying her verdict, because, she claimed, the MSPA requiresparties to litigation to protect Medicare’s interests.The Superior Court, in reviewing the defendant’s appeal of the trial court’s denial of thepost-trial motion, answered the question of “whether the MSPA either requires or allows aprivate entity to assert the rights of the United States government regarding a potential claim forreimbursement of a Medicare lien.” The court found that the express language of the MSPAimposes a duty on the primary insurance plan to reimburse Medicare for payments Medicaremade that the primary insurer was actually responsible for. The primary insurance plan’s dutyonly arises after Medicare issues a recovery demand letter. The court found that only afterissuing this demand letter may the United States government, and only the United Statesgovernment, bring an action for the reimbursement. A primary plan cannot assert Medicare’sright to reimbursement to guard itself against future liability to Medicare.VIII. LEGAL MALPRACTICEA. Elements of a Cause of Action for Legal Malpractice – NegligenceIn Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998), the Supreme Court reiterated theelements for a cause of action for legal malpractice based on negligence in Pennsylvania. Theyare as follows: (1) employment of the attorney or other basis for a duty; (2) the failure of theattorney to exercise ordinary skill and knowledge; and (3) that such negligence was theproximate cause of the damage to Plaintiff. The court went on to state that Plaintiffs must provethat they had a viable cause of action against the party they wished to sue in the underlyingaction and that the attorney they hired was negligent in prosecuting or defending that underlyingcase. Thus, the court noted, Plaintiffs must prove “a case-within-a-case” in that they mustinitially establish by a preponderance of the evidence that they would have recovered a judgmentin the underlying action. Consequently,[i]t is only after the Plaintiff proves he would have recovereda judgment in the underlying action that the Plaintiff can thenproceed with proof that the attorney he engaged to prosecute ordefend the underlying action was negligent in the handling of the144