On Friday, August 9, 2013, Naulty, Scaricamazza & McDevitt partner Robert E. Dillon obtained a defense verdict on behalf of a podiatric physician in York County, Pennsylvania. The case was tried before Judge Limebaugh from August 5, 2013 through August 9, 2013.
The plaintiff alleged that the defendant podiatrist was negligent in the diabetic foot care of the patient over the course of three years of treatment. It was alleged that this negligence caused the plaintiff to undergo amputations of the toe, the foot and, finally, the lower leg, after the appearance of a non-healing ulcer which progressed to gangrene on the great toe of the left foot.
The plaintiff's expert podiatrist opined that the defendant podiatrist violated the standard of care by failing to chart the absence of pedal pulses for each visit and for failing to perform an earlier ankle-brachial index (ABI) test as a preventative measure, before symptoms appeared. The plaintiff sought damages for past and future medical expenses, home health care, medical device expenses, home and vehicle modifications and loss of consortium.
On behalf of the defense, Mr. Dillon argued that the defendant's treatment of the plaintiff was proper and that the defendant had successfully healed many other ulcers over the course of the patient's treatment and care. Mr. Dillon also noted that the defendant doctor referred the plaintiff to a vascular surgeon at the earliest sign of the plaintiff's inability to heal an ulcer. During a review of the medical records, Mr. Dillon revealed that the plaintiff had a Q8 qualifier in the chart, indicating the permanent absence of pedal pulses; thus, making the charting of the absence of pedal pulses at each subsequent visit, suggested by the plaintiff's expert, superfluous and unnecessary.
Mr. Dillon also presented an expert podiatrist who noted that an ABI test which was performed at the defendant's urging after the appearance of a non-healing ulcer indicated that the plaintiff still had adequate flow to the ankle. The expert podiatrist then explained that the inability of the plaintiff to heal the ulcer in the toe was caused by small vessel disease in the arteries of the foot, itself. Furthermore, the expert noted that it is not possible to bypass these small vessels and that the defendant doctor's accelerated visit schedule, careful treatment of ulcers, and immediate referral to a vascular surgeon at the first sign of danger was the proper means of treating the patient.
The jury found in favor of the defendant podiatrist represented by Robert E. Dillon. The case was tried before the Honorable Judge Stephen P. Limebaugh in the York County Court of Common Pleas in York, Pennsylvania.
On Thursday, February 7, 2013, Naulty, Scaricamazza & McDevitt attorney, Sean P. Buggy obtained a defense verdict on behalf of a restaurant-bar in the Philadelphia County Court of Common Pleas. The case was tried before Judge Shelly Robbins-New from February 4, 2013, through February 6, 2013.
The plaintiff alleged that he was attacked and assaulted by the co-defendant at the entrance to the bar. The plaintiff claimed that the co-defendant was standing next to the doorman while he threatened the plaintiff for ten to fifteen minutes before the fight began. The plaintiff contended that the bar was liable under a theory of negligent supervision. The plaintiff also argued that the doorman had not been trained and that the bar did not have any policies or guidelines regarding the security of its patrons. The plaintiff’s liability expert opined that there was a deviation from the standard of care on the part of the bar which was the direct cause of the altercation.
On behalf of the defense, Mr. Buggy argued that the altercation was sudden and unexpected and that the bar did not have any notice, neither actual nor constructive, of what was about to occur. The former doorman testified that he did not hear, observe or have any knowledge that a fight was about to erupt. Additionally, Mr. Buggy’s liability expert testified that there was no evidence of any pre-indicators that would have alerted the bar that a fight was likely to transpire. He further opined that the doorperson acted properly and that there was no negligence whatsoever on the part of the bar. The medical experts of the parties to the dispute agreed that the plaintiff sustained a severe injury to the tibia which would require three future right knee surgeries.
The jury found in favor of the defendant restaurant-bar represented by Sean P. Buggy, Esquire. The jury did, however, find against the co-defendant in the amount of $240,611.00. This matter was tried under the “One Percent Rule” of the old Pennsylvania Joint and Several Liability law, wherein: Mr. Buggy’s client would have been responsible for payment of the entire verdict had the jury found the bar liable for as little as one percent of the damages.
On Monday, January 7, 2013, the Honorable Vicki Anne Citrino, J.W.C. rendered a reserved decision in the matter of Cruz v. Alonzo, which may affect future workers' compensation cases. A summary of the decision is available at the NJ Department of Labor's Website and is reproduced below:
"Petitioner filed a motion for payment of medical bills while respondent filed a cross motion to dismiss for lack of employment relationship. After reviewing the evidence, the Judge of Compensation found that the petitioner was not an employee of the respondent/homeowner under N.J.S.A. 34:15-36 because he had a permanent full-time job elsewhere, had no expectation of regular or steady employment with respondent, and performed only odd jobs on isolated and irregular occasions as a need arose. The petitioner's claim was dismissed."
You can download the PDF of the full transcript of Judge Citrino's ruling by clicking here or by clicking on the thumbnail image to the left.
On Friday, November 9, 2012, Naulty, Scaricamazza & McDevitt partner Robert E. Dillon, obtained a defense verdict on behalf of a podiatric physician in the Delaware County Court of Common Pleas. The case was tried before Judge G. Michael Green from November 7, 2012 through November 9, 2012.
The plaintiff alleged that the doctor was negligent in performing four surgeries involving the removal of bone in the proximal phalanx of second toe of the right foot to treat a hammertoe deformity. The plaintiff argued that even though the first of the four surgeries was appropriate, the final three attempts to repair the bone were not reasonable and that the doctor removed too much bone. The plaintiff’s expert podiatrist opined that the defendant podiatrist should have performed a fusion of the joint after the first surgery. It was also alleged that the plaintiff suffered from extreme pain as a result of the surgeries as well as a shortened toe.
On behalf of the defense, Mr. Dillon argued that the decisions of the podiatrist to perform the four surgeries were all reasonable and the attempt to avoid the fusion was also reasonable. Mr. Dillon noted that the doctor had performed the same surgery on two of the patient’s other toes on the same foot - both of which were successful. Mr. Dillon also presented an expert podiatrist who, through careful analysis of the radiographic images, noted that alleged shortening of the toe was exaggerated, that the amount of missing bone from the phalanx was not demonstrably as great as the plaintiff’s expert suggested, and that the expected parabolic shape of the toes remained, even after the fourth and final surgery.
The jury found in favor of the defendant podiatrist represented by Robert E. Dillon. The case was tried before the Honorable Judge G. Michael Green in the Delaware County Court of Common Pleas in Media, Pennsylvania.
On Sunday, November 4, 2012, Naulty, Scaricamazza & McDevitt’s American Heart Association team participated in the 2012 Philadelphia Heart Walk. Thanks to the organizational skills of Naulty attorney Alexis Aloi, Lorie Zagacki and Katie Dillon, we were able to recruit some forty-three members to walk in support of raising awareness for heart disease and stroke.
In addition to taking part in the walk event itself, the Naulty team was also able to exceed the original monetary goal of $3,000.00 in donations and raise an impressive $4,291.00. We thank everyone who contributed to the effort for their generous donations to the cause of aiding in research and education for the fight against the nation’s deadliest disease. Click for Larger Photo»
On Friday, October 26, 2012, Robert E. Dillon, a partner with our medical malpractice defense department, obtained a defense verdict on behalf of a podiatrist in Bucks County, Pennsylvania. The case was tried before Judge Robert J. Mellon from October 22, 2012 through October 26, 2012.
The plaintiff alleged that the defendant podiatric physician's removal of the first metatarsal's tibial sesamoid bone was not indicated and that alternate means of repair should have been employed. It was alleged that the removal of the sesamoid bone caused the plaintiff to develop complex regional pain syndrome (CRPS) - formerly known as RSD. Furthermore, the plaintiff alleged that the subsequent changes to the foot after the removal of the sesamoid caused the CRPS to spread to other limbs of the body. It was also alleged that the defendant doctor failed to obtain proper consent to perform surgery.
On behalf of the defense, Mr. Dillon argued that the doctor had obtained informed consent to perform the surgery and that the removal of the sesamoid bone was appropriate. To this end, Mr. Dillon presented an expert podiatrist who noted that the combination of the plaintiff's arthritic changes in the bone plus its fractured condition made the alternate means of repair suggested by the plaintiff's expert witnesses unworkable, which left the removal of the bone as the only appropriate response. Mr. Dillon also presented an expert neurologist who testified that the plaintiff's pain could partly be explained by a pre-existing neuropathic condition in the lumbar spine and that some of the findings in his examination were not consistent with CRPS.
The jury found in favor of the defendant podiatrist represented by Robert E. Dillon, Esq. After polling the jury, this decision was revealed to be unanimous. The case was tried before the Honorable Judge Robert. J. Mellon in the Bucks County Court of Common Pleas in Doylestown, PA.
In September 2012, Francis T. McDevitt, the managing partner of our New Jersey office, won an appeal upholding the trial court's granting of summary judgment in favor of his client in a declaratory judgment. The case was filed in Gloucester County, NJ.
The case involved the death of a woman who was driving home after working a shift as a waitress for her employer. Unknown to her employer or co-workers, she was under the influence of prescription medication and had also consumed a significant amount of alcohol before coming to work. She did not, however, consume any alcohol while at the workplace. The issue for the declaratory judgment was whether the general liability carrier or the workers' compensation carrier should defend the employer in the lawsuit brought by the estate.
On behalf of the workers' compensation carrier, Frank argued that the complaint did not allege that the claim arose out of the course and scope of the deceased's employment; thus, the workers' compensation carrier had no duty to defend or indemnify the employer/insured for any claim brought against the employer. Frank contended that the language of the complaint required the general liability carrier for the employer to defend and indemnify the employer in the lawsuit by the estate. Judge Hoffman, the trial court here, agreed with Frank and issued a declaratory judgment in favor of the workers' compensation carrier and ordered that the general liability carrier defend and indemnify the employer. The general liability carrier appealed, and the Appellate Division, in a 3-0 decision, upheld the trial court.
This fall, the attorneys and staff of Naulty, Scaricamazza & McDevitt, LLC will be participating in the American Heart Association's 2012 Philadelphia Heart Walk. The event will take place at Citizen's Bank Park on Sunday, November 4, 2012 from 8:00 a.m. until 12:00 noon.
The purpose of the Heart Walk is to promote heart-healthy physical activity while raising awareness concerning both cardiovascular disease (CVD), which is the #1 killer of Americans throughout the country and in each individual state, as well as stroke which is the fourth most common cause of death in the United States.
The Naulty Heart Walk group is jointly organized by Alexis Aloi and Katie Dillon; Alexis is also the co-chair for the American Heart Association's Philadelphia Young at Heart volunteer organization. We are hoping for a good turnout for the three mile walk, so please visit our group page at the AHA website to track our progress and learn more about the Heart Walk event.
Recently, the Honorable Judge Peter Calderone, Director and Chief Judge of the New Jersey Department of Labor and Workforce Development posted two memoranda that could impact workers' compensation matters. The first memorandum of June 5, 2012 stipulates that workers' compensation judges will no longer make referrals to the Division of Vocational Rehabilitation (DVRS). The Chief Judge notes that the current referral process has not been effective in expediting claim resolution.
The second memorandum of June 7, 2012 provides a response to questions from the New Jersey Advisory Council on Safety and Health regarding Medicare and the Center for Medical Services (CMS) conditional payment issues. You can download complete PDF copies of the first June 5, 2012 DVRS memorandum by clicking here and the second June 7, 2012 CMS memorandum by clicking here.
On Wednesday, August 29, 2012 from 8:30 a.m. until 4:30 p.m., Melissa A. Schwartz, a partner at our Philadelphia office, will be among the three speakers at Lorman Education Services’s Workers’ Compensation Update in New Jersey. The presentation as a whole will provide an overview of the Workers' Compensation Act, the latest updates on workers' compensation law, employer obligations and the challenges facing employers, as well.
During Melissa's portion of the seminar - which runs from 1:15 p.m. until 2:15 p.m., she will focus on the role that an insurance claims adjuster plays in workers' compensation matters. Topics she will cover include: claims investigations, advisable versus imprudent actions, denying or accepting a claim, authorization and payment of medical treatment, and voluntary payment of compensation.
The seminar will take place at the Holiday Inn in Somerset, New Jersey (located at 195 Davidson Avenue, off Exit 10 of I-287). The presentation will count for 7.2 New Jersey continuing legal education credits (CLEs), 7.0 New York CLEs and 6.0 Pennsylvania CLEs. For a 20% discount off the standard registration fee, please use this link and enter Discount Code: F2716129 and Priority Code: 15999 in the Shopping Cart to take advantage of the Faculty-Client Benefit opportunity.