2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

the Pennsylvania Supreme Court’s discussion of the discovery rule in medical malpracticecases.The court noted that “[o]f critical importance in this case is the distinction betweenthe act constituting the alleged breach—the Connelly Defendants’ failure to call witnesses,which would start the statute under the occurrence rule—and the injury that flowed fromthis failure, constructive knowledge of which would trigger the statute of limitations underthe discovery rule.” Id. at 615. The court found, although it is undisputed the plaintiffknew the witnesses were not called, “it remains in dispute, and a question . . . a jury shoulddecide, when [the plaintiff] knew that he was injured as a result of the witnesses not beingcalled.” The court concluded “reasonable minds could disagree in determining whetherKnopick knew or should have known, through the exercise of reasonable diligence, of hisalleged injury as early as August 2, 2004, the date of the hearing.” Id. at 616.K. Contributory Negligence DefenseIn KBF Associates L.P. v. Saul Ewing Remick & Saul, 35 Pa. D. & C. 4th 1 (Phila. Cty.Ct. Com. Pl. 1998), the court, per Judge Bernstein, held that contributory negligence is not aviable defense in a legal malpractice action. In KBF, Plaintiff-client alleged that Defendant lawfirm was negligent in failing to advise them of a late fee incurred by the postponement of a bondredemption, which was part of a larger and complex bond reoffering transaction. Defendant lawfirm asked the court “to rule that a client may be barred from suing his attorney for malpracticewith respect to errors within the scope of the attorney’s engagement where it can bedemonstrated that the client had the capability and expertise to have independently determinedthe error.” Id. at 3. The court found no support in Pennsylvania law for such a proposition andsoundly rejected it. Citing cases from other jurisdictions, the court reasoned as follows:Id. at 5, 7-8.[T]he [instant] legal malpractice action cannot be defended on thebasis of contributory negligence upon the allegation that the clientitself was sophisticated enough to do its own legal work andcorrect the error.* * *The Plaintiff had a right to rely on the advice of experienced bondcounsel without the risk that the consequences of Defendants’negligence would be shifted to the partnership because of thesophistication or experience of its general partner. . . Counsel maynot shift to the client the legal responsibility it was specificallyhired to undertake because of its superior knowledge.However, in Gorski v. Smith, et al., 812 A.2d 683 (Pa. Super. Ct. 2002), appeal denied,856 A.2d 834 (Pa. 2004), the Pennsylvania Superior Court adopted the rule that the negligence ofa client may be raised as an affirmative defense by an attorney in a legal malpractice action thatis based on a theory of negligence. The client’s negligence, once proven, will serve as a163