On the Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories

Audrey Copeland (King of Prussia, PA) procured the Pennsylvania Superior Court's affirmance of the dismissal by judgment on the pleadings of an action based upon the statute of limitations. The Superior Court reasoned that the trial court properly relied upon the factual averments in the complaint in the underlying action, which had been attached by the defendants to their answer and new matter. The critical date relevant to the timeliness of the subject action was the filing date of the underlying complaint, and the averments in the latter showed that the defendant was fully aware that its right to file suit had accrued. Arguments of fraud and concealment were rejected. Muschlitz Excavating, Inc. v. The Arm Group, 3433 EDA 2008 (Pa. Super. March 16, 2010.

Chuck Craven (Philadelphia, PA) succeeded in obtaining an affirmance of a defense medical malpractice judgment from a unanimous three-judge panel of the Pennsylvania Superior Court (Judges Musmanno and Kelly and President Judge Emeritus McEwen) in a case tried to a defense verdict by Candy Barr Heimbach (Bethlehem, PA). Smith v. Isaac, No. 3554 EDA 2008 (12/21/09). Our client was the emergency room physician who successfully stopped the bleeding of and cleansed a contaminated leg wound of a patient. While in the ER, the patient was seen by her family physician, who happened to be making his rounds in the hospital at the time of treatment. Both our client and the family doctor agreed that the family doctor would prescribe an antibiotic for the patient after reviewing her extensive chart, given her complicated medical conditions and her prior adverse reactions to certain antibiotics. The plaintiff contended, however, that both doctors were negligent for not administering an antibiotic before the patient was discharged from the ER and for not conducting certain tests and consulting an infectious disease specialist. On the following day, the patient developed an infection from which she eventually died. The jury found that the doctors had not been negligent, and the plaintiff asserted on appeal that the trial court erred in charging the jury on the "two schools of thought" doctrine and in not permitting cross-examination of a defense expert on the absence of an entry in a pharmacy's records confirming that the family doctor's office had called in a prescription for an antibiotic. The Superior Court panel rejected the plaintiff's contentions and accepted the defense arguments that the jury instruction was proper and that there was no abuse of discretion in limiting cross-examination. The "two schools of thought" instruction was supported by the testimony of medical experts on both sides and, as explained to the jury, the doctrine applied only to the plaintiff's claim that a prophylactic antibiotic should have been administered and not to any other claim. The cross-examination was limited because the plaintiff never established that the pharmacy records actually showed prescription call-ins.

Chuck Craven (Philadelphia, PA) succeeded in persuading the Pennsylvania Superior Court to affirm the dismissal of a tax dissenter's lawsuit against a bank in McGeady v. QNB, No. 1616 EDA 2009 (3/29/09). In response to a levy imposed by the federal Internal Revenue Service on the plaintiff's bank accounts for unpaid income taxes, the bank paid the tax lien from the accounts, and the plaintiff sued the bank to recover the payment, additional damages, attorneys fees, and costs. In a long and convoluted argument, the plaintiff contended that the bank had no authority under the state banking law to honor and pay the levy. However, following the lead of several courts in other states, the trial court held that the bank was obliged to make the payment and was immune from discharging that obligation under the federal Internal Revenue Code, 26 U.S.C. § 6332(e). The Superior Court agreed and affirmed the trial court's dismissal of the plaintiff's lawsuit.

Defense Digest, Vol. 16, No. 2, June 2010