2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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complete bar to recovery. Since a legal malpractice action is based on monetary loss, rather thanbodily injury or damage to property, it is outside the scope of the Comparative Negligence Actand the doctrine of Contributory Negligence applies. The Comparative Negligence statute is notapplicable to claims brought to recover pecuniary loss.L. SubrogationIn a case of first impression, the Pennsylvania Supreme Court in Poole v. Workers’Compensation Appeal Board (Warehouse Club, Inc.), 810 A.2d 1182 (Pa. 2002), held thatproceeds from a legal malpractice action are subject to subrogation pursuant to 77 Pa. Cons. Stat.§ 671. Plaintiff Poole was injured when he slipped on a patch of ice in front of his employer’sbuilding. Poole received worker’s compensation benefits from his employer. Poole attempted tofile a complaint against the owner of the property on which he fell, but his attorney filed thecomplaint against the wrong persons. The complaint was dismissed and Poole’s cause of actionagainst the owner was barred by the statute of limitations.Poole filed a legal malpractice action against his former counsel. The malpractice actionsettled and Poole’s employer sought subrogation from the proceeds of the settlement for theamounts it had paid. The Supreme Court held that the employer was entitled to subrogationunder 77 Pa. Cons. Stat. § 671, which provides for subrogation where the compensable injury iscaused in whole or in part by the act or omission of a third party. Because a plaintiff mustdemonstrate not merely an injury as a result of the negligence of his former attorney, but also thenegligence of the third party which resulted in the underlying injury, an employer may rely onthe employee’s legal malpractice action to demonstrate that the compensable injury was causedby a third party. Id.M. VenueIn Zampana-Barry v. Donaghue, 921 A.2d 500 (Pa. Super. Ct. 2007), appeal denied, 596Pa. 709, 940 A.2d 366 (Pa. 2007), the Superior Court affirmed the trial court’s order refusing totransfer venue in a legal malpractice case from Philadelphia to Delaware County. Plaintiff in thiscase brought claims in the Philadelphia Court of Common Please against a lawyer who hadrepresented her in personal injury against K-Mart and who she claimed had negligently failed topreserve her right to proceed against K-Mart after it filed for bankruptcy. Defendants, the lawyerand his firm, filed preliminary objections arguing that venue was improper pursuant to Rules1006(b) and 2179(a)(2) of the Pennsylvania Rules of Civil Procedure, which pertain to venueover a corporation or similar entity. After conducting a hearing, the trial court determined thatDefendants regularly conducted business in Philadelphia and overruled the objections.On appeal the Superior Court first noted that it was unable to ascertain if Defendant lawfirm was a corporation or a partnership and further noted that Rule 2130 contains the provisionsrelating to venue over partnerships and Rule 2179 the provisions relating to venue overcorporations. Both rules, however, allow for venue in a county where the entity “regularlyconducts business” and so the court’s ignorance on this point did not impact the appeal.The court next noted that although Defendants voiced many arguments relating to arequest to transfer venue based on forum non conveniens, i.e. under Rule 1006(d), their motion164
actually was based only on improper venue, i.e. Rule 1006(b). Consequently, the court wouldconsider only whether the trial court abused its discretion under Rule 1006(b).In addressing this question the court applied the required qualitative/quantitative analysis.It noted that Defendant lawyer testified that he and the firm were in the business of providinglegal representation, that he appeared and would continue to appear in federal courts inPhiladelphia as a solicitor for several townships, and that he appeared and would continue toappear in state courts in Philadelphia as a litigator. The firm also submitted an affidavit statingthat for the past two years no more than three to five percent of the firm’s gross revenue wasgenerated by Philadelphia cases. Based on this information, the Superior Court ruled that thetrial court had not abused its discretion in determining that the firm’s acts were of sufficientquality and quantity to qualify as regularly conducting business, and so to sustain venue, inPhiladelphia.N. Certificate of MeritPennsylvania Rule of Civil Procedure 1042.3 provides in pertinent part:(a)In any action based upon an allegation that a licenseprofessional deviated from an acceptable professionalstandard, the attorney for the plaintiff, …, shall file with thecomplaint or within sixty days after the filing of thecomplaint, a certificate of merit signed by the attorney …that either(1) an appropriate licensed professional has supplied awritten statement that there exists a reasonableprobability that the care, skill or knowledgeexercised or exhibited in the treatment, practice orwork that is the subject of the complaint, felloutside acceptable professional standards and thatsuch conduct was a cause in bringing about theharm ….Pa. R. Civ. P. 1042.3.In Parkway Corp. v. Margolis Edelstein, 861 A.2d 264 (Pa. Super. Ct. 2004), appealdenied, 912 A.2d 1293 (Pa. 2006), the Superior Court addressed whether a judgment of non prosis properly entered upon Plaintiff when the Complaint was unaccompanied by a Certificate ofMerit, and Plaintiffs failed to request an extension of the filing period.Plaintiffs instituted a claim for legal malpractice after a verdict in a wrongful death actionwas rendered against them for approximately $7 million. The complaint was unaccompanied bya certificate of merit, and appellants never requested an extension of time in which to file one.Defendants successfully moved for judgment of non pros. Thereafter, Plaintiffs filed a Petitionto Open and/or Strike, which was denied by the trial court.165
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EMTALA CASES ......................
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Filing an Affidavit of Non-Involvem
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II.PROFESSIONAL LIABILITY - AN OVER
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The Superior Court reversed the tri
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to a third party pursuant to the st
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After approximately five months, De
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learned the day after the surgery t
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conduct to the delay in colon cance
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court admitted the expert’s testi
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(b)(c)other reasonable causes, incl
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corroborated his testimony. The cou
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husband’s estate. Plaintiff alleg
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Other notable federal cases arising
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The Superior Court found that in re
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§ 1303.512(b). The court, however,
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In Neidig v. United States, No. 07-
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Additionally, the Supreme Court not
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were not indicated for her conditio
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surgeon is the same as it would be
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It should be noted that the Superio
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Finally, the court held that the tr
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The Supreme Court of Pennsylvania r
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nurses deviating from applicable st
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certainty, the court reviews expert
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Under Pennsylvania law, the Court n
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testimony, Defendant presented his
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Following Cooper v. Roberts, 286 A.
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Plaintiff developed chronic diarrhe
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where payment is made by Medicaid w
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accomplished. In Valles v. Albert E
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In 1980, the Pennsylvania Superior
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Plaintiff had a routine monitoring
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Plaintiff’s Contract ClaimsThe Co
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is a failure to report changes in a
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unit to assure post-surgical patien
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sliced his wrist and arm with a raz
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licensed professionals for whom the
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(c)Limitations of Corporate Neglige
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Even more recently, our Superior Co
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(a)HMO IssuesIn McClellan v. Health
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affidavit submitted by Defendants o
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treatments while at VA’s faciliti
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[s]ubstantively, we believe that a
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The party claiming the benefit of t
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deprive (him) of civil rights guara
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found that the District Court was w
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With respect to fraudulent concealm
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would be applied in situations wher
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they had not raised them in the cou
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(a)Informed ConsentUnder MCARE, a p
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civil enforcement provisions and ma
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MCARE also changes the manner in wh
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whose death, in 2005, was allegedly
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vicariously liable if the plaintiff
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health center or its equivalent or
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In Pennsylvania Medical Society, th
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to any professional who is alleged
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Since the 2005 amendments, there ha
Page 120 and 121: ule, but who intentionally ignores
Page 122 and 123: the original Complaint was delivere
Page 124 and 125: foreclose all challenges against th
Page 126 and 127: number of boxes), which was support
Page 128 and 129: questions of professional judgment
Page 130 and 131: deviated from any professional stan
Page 132 and 133: The Third Circuit affirmed the Dist
Page 134 and 135: claims and cross-claims remain agai
Page 136 and 137: By an Amendatory Order dated March
Page 138 and 139: The court acknowledged that there i
Page 140 and 141: apply and that the trial court misa
Page 142 and 143: Barbados had enough litigation-spec
Page 144 and 145: E. Preemption of Vaccine Design Def
Page 146 and 147: 2. Pa. R. Civ. Pro. 1036.1 - Reinst
Page 148 and 149: Barrick, at *34-35.Furthermore, the
Page 150 and 151: (b) the utility of the defendant’
Page 152 and 153: 2006). In this case, Plaintiffs bro
Page 154 and 155: B. Elements of a Cause of Action fo
Page 156 and 157: decision in Muhammad precluded Mr.
Page 158 and 159: considered speculative “only if t
Page 160 and 161: underlying cause of action involved
Page 162 and 163: In Capital Care Corp., the Superior
Page 164 and 165: The court found, however, to state
Page 166 and 167: of reasonable diligence. The standa
Page 168 and 169: not be set aside. On July 7, 2005,
Page 172 and 173: On appeal, Plaintiffs claimed that
Page 174 and 175: In Liggon-Redding, 659 F.3d at 265,
Page 176 and 177: elieved of those minimum standards
Page 178 and 179: elevant to the proceedings, the com
Page 180 and 181: establish professional misconduct b
Page 182 and 183: Upholding the Superior Court’s Or
Page 184 and 185: Id.Rejecting revocation and suspens
Page 186 and 187: order as a sanction under Rule 4019
Page 188: {1009912]182
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2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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