ALL RISE - Notable Litigation Achievements*

Justin F. Johnson, David G. Tomeo, Victoria L. Pepe (all of Roseland, NJ) and Walter F. Kawalec, III (Mount Laurel, NJ) obtained summary judgment on behalf of an obstetrician in a medical malpractice action. The plaintiff alleged that our client did not obtain the requisite informed consent from our client to undergo a trial of labor after having two prior cesarean section deliveries (TOLAC x2). The court found that the plaintiff’s lack of informed consent claim was without foundation as she had an awareness of the risks of TOLAC x2. Rather, the court found that her claim was premised on the assertion that the physician performing the TOLAC x2 failed to convert the TOLAC to a C-section quickly enough when complications arose. The court held that, as matter of law, our client had no obligation to discuss the risk that the doctor in the delivery room may wait too long to pivot to a C-section, which was the actual cause of the plaintiff’s alleged harm.

Brett C. Shear (Pittsburgh, PA) obtained a defense verdict on behalf of his client, a cardiologist. The patient came to the hospital with chest pain radiating to his arm and shortness of breath. The attending physician ordered a stress test performed by the defendant cardiologist, which was interpreted as normal. The patient was then discharged from the hospital. Less than two weeks later, he died from a heart issue. An autopsy found significant narrowing of all of the arteries of the heart, including a 90% narrowing in the LAD (i.e. the “widowmaker”). The pathologist and coroner opined that the decedent had a cardiac event caused by the significant narrowing of the arteries, which caused his death. The ensuing claim was that the stress test was misinterpreted by the defendant cardiologist. The plaintiff’s cardiology expert criticized the defendant doctor, who graduated from Yale University. Our expert, a local cardiologist, testified that our client properly interpreted the stress test and that 10% of patients with coronary artery disease will still have a normal stress test. The jury returned a verdict, finding no negligence by the defendant cardiologist.

Carolyn B. DiGiovanni (King of Prussia, PA) obtained a defense verdict on behalf of her client, a surgical oncologist, in a binding high/low arbitration. The plaintiff alleged that the surgeon performed unnecessary surgery on a mass in her left arm, causing permanent scarring, continuous throbbing pain, and severe depression and anxiety. The plaintiff had two imaging studies, which were highly suspicious for malignancy. However, the pathologic examination ultimately determined the mass to be benign and an allergic reaction to Lupron injections given by the co-defendant gynecologist.

Matthew P. Keris (Scranton, PA) secured a defense verdict in a long-term care case with a unique spoliation issue, allegations of cover-up and a “no show” plaintiff. A longtime nursing home resident died nine days after suffering head trauma following a fall. The cause of death was “end-stage dementia.” The plaintiff—the resident’s son—was not the decedent’s guardian. In fact, the staff said he never visited his mother in three years and that the responsible party was a local agency. Without providing notice to the nursing home administration, the plaintiff’s lawyer delivered the body across the state to a Pittsburgh-based forensic pathologist for a private autopsy. The corpse was cremated shortly after the autopsy, without an opportunity for the defense to examine the body. The forensic pathologist alluded that the cause of death was not end-stage dementia, but blunt force trauma. The defense did not learn about the private autopsy until years later, when the report was provided in discovery. The defense filed a motion for sanctions for spoliation, which was followed by depositions of the funeral home staff and a hearing involving the forensic pathologist and attending physician. The forensic pathologist admitted that autopsy specimens were lost and that photos the plaintiff’s counsel claimed did not exist were on her computer and were never asked for. Although the spoliation motion was denied, the court held that the defense could question the forensic pathologist on the cremation, destroyed specimens and failure to produce the autopsy photographs at trial. On the eve of trial, the judge proctored an agreement between the parties to arbitrate the case “on expert reports only.” At arbitration, plaintiff’s counsel continued to pursue a conspiracy theory about “the true cause of death,” along with standard negligence criticisms about fall prevention. The plaintiff was cross-examined on a prior crimen falsi conviction and an Orphans’ Court petition initiated by the local Area Agency on Aging, wherein the deceased resident complained that she was afraid of her son, which was relevant to his “loss of society and companionship” claim. Robert J. Aldrich and Nicole E. Tanana (both in Scranton, PA) provided excellent motion and trial support, and Patricia A. Lafferty (Scranton, PA) represented Matt and Rob during the spoliation hearing after plaintiff’s counsel named them as his potential witnesses.

E. Chandler Hosmer (King of Prussia, PA) obtained a defense verdict in a case in which the plaintiff alleged that the physician was not qualified to perform gynecomastia surgery and should have referred the patient to a plastic surgeon. The plaintiff also alleged that the physician failed to properly obtain the patient's informed consent to perform the surgeries. The physician allegedly failed to perform the procedures properly, which caused the patient to require additional surgery and resulted in permanent disfigurement.

*Prior Results Do Not Guarantee a Similar Outcome 

_{The Quarterly Dose – August 2024, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved.}