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Summary Judgment in Pennsylvania Legal Malpractice Action Reversed

/ 12.Jun, 2014

In the case of Sokolsky v. Eidelman, 2014 PA Super 117, Janice Sokolsky asserted attorney Edward Eidelman did not pursue a medical malpractice action on her behalf prior to the expiration of the applicable statute of limitations. Sokolsky consulted with Eidelman after she suffered an amputation to her right leg following a necrotic blister on her right heel. Sokolsky, who had a history of a host of medical ailments including diabetes, coronary artery disease, peripheral arterial disease, and chronic renal insufficiency, had previously had an amputation of two gangrenous toes on her left foot. Eidelman acknowledged no medical malpractice action was timely commenced, but did not concede negligence. Sokolsky commenced a legal malpractice action against Eidelman asserting she lost her ability to pursue a viable medical malpractice action.

Eidelman filed a motion for summary judgment which was granted by the trial court. The trial court granted the motion for summary judgment on the basis that Sokolsky did not identify any medical provider who acted negligently. The Superior Court disagreed. Relying on Hall v. Episcopal Long Term Care, 54 A.3d 381, 402 (Pa. Super. 2012), appeal denied, 69 A.3d 243 (Pa. 2013), the court held it was sufficient for a plaintiff to identify specific acts of negligence by a unit or “the staff” which led to the alleged harm without specifically identifying the caregiver responsible for committing the negligent act. However, the court acknowledged Sokolsky will need to establish at trial the staff breached a duty owed her, and the breach caused her to suffer damages.

The Superior Court’s understanding of vicarious liability in medical malpractice cases in Sokolsky appears to stretch the limits of agency in medical malpractice cases. See e.g., Rachlin v. Edmison, 2002 PA Super 387, 813 A.2d 862, 870 (Pa. Super. 2002) (“Although it is unnecessary to plead all the various details of an alleged agency relationship, a complainant must allege, as a minimum, facts which: (1) identify the agent by name or appropriate description; and (2) set forth the agent’s authority, and how the tortious acts of the agent either fall within the scope of that authority, or if unauthorized, were ratified by the principal.”); Mansour v. Gnaden Huetten Mem. Hosp., 3 Pa. D. & C.5th 149, 154 (C.P. 2007)(“[W]e believe that it is necessary for the Plaintiffs to set forth specifically which Defendants fail to treat and/or admit [plaintiff to the hospital. . .”); Spagnola v. Mehta, 2009 Pa. D. & C. Dec. LEXIS 442, 5 (C.P. 2009) (“Nowhere in the Complaint are there any allegations which identify an agent by name or appropriate description or describes the nature of the agency with regard to the other physicians, nurses, technicians and others that cared for Plaintiff.”); Rex v. Wellspan Health, 8 Pa. D. & C.5th 573, 575 (C.P. 2009). The identification of the agent(s) as “the staff” in Sokolsky is contrary to well established law. In making its finding in Sokolsky, the Superior Court did note plaintiff identified by name “a number of individual health care providers whom she believes breached their duties of care to her.” The Superior Court also found Sokolsky established a prima facie case of medical malpractice.

The Superior Court also reversed and remanded the grant of summary judgment on Sokolsky’s corporate negligence claim. The trial court dismissed the claim relying on the “Thompson factors” applicable to hospitals: “(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.” Thompson v. Nason Hosp., 591 A.2d 703, 707-708 (Pa. 1991). The Superior Court remanded to the trial court to address what duty the nursing facility owed the pursuant to the “Althaus factors” as adopted by Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 586 (Pa. 2012): (1) [T]he relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.

The Superior Court’s wide ranging opinion will likely resonate more in medical malpractice actions than in legal malpractice actions. However, the very existence of the action in the first place is a reminder that cases attorneys do not pursue are just as likely to form the basis of a legal malpractice action as the cases attorneys do pursue. Without respect for the legal or factual merits of Sokolsky’s medical malpractice claim, the attorney would not be facing a legal malpractice action if he timely informed Sokolsky he would not pursue the action on her behalf. Professional liability avoidance best practices include the use of non-retention/non-engagement (Swartz Campbell does not specifically endorse the use of the linked-to sample letters by the American Bar Association) and disengagement letters when an attorney decides not to accept or pursue a matter.

Josh J.T. Byrne, Esquire