Behavioral Health Risk & Liability

Gary Samms (Philadelphia and King of Prussia) obtained a defense verdict on behalf of a Philadelphia hospital and two Emergency Department physicians after a six-day jury trial in a complex and extremely emotional case involving the death of 7-year-old child. Allegations of negligence surrounded the failure to admit and perform a urine drug screen on an 18-year-old who presented high on synthetic marijuana or K2. Gary argued that the doctors appropriately performed numerous exams, tested and monitored the patient until he achieved clinical sobriety. The patient was discharged, then 22 hours later smoked more K2 and within two hours strangled his 7-year-old sister to death. Paralegal Nancy Farnen (Philadelphia) was instrumental in the result.

In another matter, Gary obtained a dismissal in the middle of trial after cross-examining the plaintiff’s witnesses in a case involving a former NFL player and opera singer who contended they had permanent injuries after knee surgery and the failure to diagnose a pseudoaneurysm. Plaintiff’s counsel agreed to dismiss Gary and his client prior to the end of their case to prevent him from participating in the trial further and decided to limit their recovery to the other defendants due to Gary’s successful cross-examination.

Gary also obtained a defense verdict after an 11-day trial on behalf of four physicians and a major teaching hospital in Philadelphia. The medical malpractice action involved the labor and delivery of a baby later alleged to have a hypoxic birth injury that caused developmental delays and permanent brain damage, among other issues. The plaintiffs’ experts boarded $21 million in future medical costs to take care of the child and the demand in the pretrial was commensurate with those numbers.

In another matter, Gary obtained a non-suit in a wrongful death case in Delaware County. The court found upon motion that there was no link to causation after an extensive, nuanced argument.

With tremendous support from Adam Fulginiti and paralegal Nancy Farnen (both of Philadelphia), Gary also secured a unanimous defense verdict in Philadelphia on behalf of a prominent orthopedic surgeon accused of inappropriate touching of a patient. The plaintiff alleged that the physician inappropriately touched her during a preoperative examination for bilateral hip surgery. Through meticulous cross-examination and persuasive argument, the defense team achieved a complete victory.

Adam, working closely with Bobbi Lewis, Ryan Harvie and paralegal Dorien Belle (all of Philadelphia) also obtained summary judgment on behalf of their nursing home client. The case involved allegations that the facility failed to prevent various conditions and injuries during the resident’s admission, such as UTI/sepsis, acute kidney injury/metabolic encephalopathy, dehydration and failure to thrive/weight loss, and skin breakdown. The plaintiff alleged these developments resulted in numerous damages including, but not limited to, death. Our motion for summary judgment sought dismissal under the grounds that the facility held immunity pursuant to the Pennsylvania Tort Claims Act and included numerous supporting documents, ranging from public entity reimbursement agreements, personnel information, corporate bylaws and other materials.

Melissa Dziak and Robert Aldrich (both in Scranton) received a defense verdict after a two-day arbitration hearing in a traumatic brain injury case. With an initial $5.25 million demand, the plaintiff alleged overmedication led to cardiac arrest and a traumatic brain injury, resulting in permanent neurocognitive impairment. Through testimony from our providers and experts across internal medicine, pulmonology, toxicology and neuropsychology, Missy and Rob demonstrated that the care met the standard, did not cause the arrest and any deficits could have been pre-existing.

Kevin Hexstall (Philadelphia) and Michael Mongiello (Harrisburg) were successful on appeal of a child abuse determination levied against a home health nurse. The three-day hearing was litigated before the PA Department of Human Services. As a result of the court’s order, the nurse’s record of child abuse is being expunged. The matter arose out of the alleged attack of a child-patient by a family pit bull dog during home nursing care. It was asserted that the nurse failed to properly supervise and protect the child and failed to properly respond to the incident when it occurred. Kevin and Mike established a lack of definitive proof that the nurse negligently left the child unsupervised. They also called into question the circumstances surrounding the alleged attack, including whether the dog had a known history of aggression, which led to credibility issues on the part of the family member witnesses. Medical experts also testified on the appellant’s behalf to address possible alternate explanations for the child’s injuries. Ultimately, Kevin and Mike established that the prosecution failed to meet its burden of proof, highlighting multiple errors and inconsistencies relating to the investigation and the reporting processes. This is a significant outcome in a difficult jurisdiction with many problematic underlying facts (which led to the decision to not call the nurse to testify in her defense). Kevin and Mike’s efforts in this regard were also instrumental in allowing for achievement of a very favorable resolution of the civil claim.

Michael also obtained partial summary judgment for an obstetrician in a medical professional liability action, significantly curtailing his client’s exposure. The case arose out of the alleged negligent delivery of a baby, resulting in a shoulder dystocia, right brachial plexus injury and Erb’s palsy. Michael argued that there was a lack of evidence that his client improperly applied traction during the delivery. The judge agreed and granted partial summary judgment on the plaintiff’s gravamen claim of direct negligence. The court also granted summary judgment on claims for res ipsa loquitur and failure to obtain informed consent and also as to the plaintiff’s claim for past medical expenses, due to a lack of proper evidence in support of these claims.

Jeffrey Bates and Travis Talbot, with the help of paralegal Jennifer Cicchetti (all in Philadelphia), received a defense verdict in a dental malpractice action before the Luzerne County Court of Common Pleas. The plaintiff had a history of issues with his third molars (wisdom teeth) beginning in 2012. In 2013 he was referred to have one of them extracted by a prior dentist. In October 2015, the plaintiff presented to our client for a broken tooth. During the exam, our client advised him that he needed to have all four of his third molars removed. He even suggested it needed to be done at the next visit. However, the plaintiff did not schedule any further appointments. On January 10, 2017, the plaintiff presented with an infected third molar on the lower right, and our client suggested extracting both third molars on the right, as all of his third molars were broken down and sources of infection. However, the plaintiff would only allow extraction of the lower tooth. Our client extracted the tooth, gave a prescription of amoxicillin and administered two loading doses to get the antibiotic to therapeutic levels more quickly. He also told the plaintiff to call if the swelling in his face did not improve or if it got worse. Over the next four days, as the plaintiff testified, his swelling got worse every day, but he did not call the doctor. Finally, on January 14, 2017, his swelling had progressed into his neck, and he called our client, who saw him and immediately sent him to the emergency department. He was admitted to the hospital for 40 days, was intubated, underwent 11 procedures, including multiple incision and drainage procedures, placement of a PEG tube and a tracheostomy. The plaintiff’s experts agreed that a patient has responsibility for his own care, and failing to have his teeth extracted, or calling the doctor when the situation got worse, contributed to his injury. Although contributory negligence was on the verdict slip, the jury never got to the question as they found our client was not negligent.

Justin Johnson and Nataliana Guida, with assistance from paralegal Elina Sheldon (all in Roseland), secured a wrongful birth verdict well below the pre-trial settlement offer, which the plaintiffs rejected. Despite being brought into the case just seven months prior to the trial, Justin and Talia delivered compelling arguments that led to a total verdict that was less than the original offer made before the trial, with our client responsible for only 65%.

Megan Nelson (Orlando) was successful in having her Florida Rule 5.900 Petition for Expedited Judicial Intervention Concerning Medical Treatment Procedure granted. The alleged incapacitated person had been medically cleared for discharge to a skilled nursing facility. However, his brother, who had been appointed as the health care surrogate and power of attorney, had refused to consent to his brother’s transfer to any skilled nursing facility. After numerous unsuccessful attempts by the hospital case management team to transfer the patient, Megan was retained to file a Florida Rule 5.900 Petition for Expedited Judicial Intervention Concerning Medical Treatment Procedures. After the emergency evidentiary hearing, the court granted the petition and ordered the brother to consent to the transfer of the patient to a skilled nursing facility.

Michael Roberts and David Williamson (both of Cincinnati) successfully secured a dismissal on behalf of our client, a leading provider of complex specialty pharmacy services, via a Motion to Dismiss. At oral argument, Michael successfully argued that the plaintiff’s claim was a medical claim under R.C. 2305.113 and, thus, subject to the affidavit of merit requirement in Civil Rule 10(D)(2). In addition, he argued that the plaintiff’s cause of action should be dismissed since she could not establish the adequacy of her complaint without a proper affidavit of merit. The court agreed and dismissed the plaintiff’s Complaint in its entirety. 

*Results do not guarantee a similar result.

---

_{The Quarterly Dose – November 2025, 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. © 2025 Marshall Dennehey. All Rights Reserved.}