The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) held in its opinion filed on January 4, 2018 that the trial court manifestly abused its discretion in denying the plaintiffs’ continuance motion in their legal malpractice case against their former medical malpractice lawyer.
The legal malpractice plaintiffs had engaged the defendant medical malpractice lawyer to pursue a medical malpractice action on their behalf. On September 19, 2006, the trial court entered a non pros and dismissed the medical malpractice action after the plaintiffs failed to file a certificate of merit, a prerequisite for a professional liability action brought pursuant to the Medical Care Availability and Reduction of Error Act (“MCARE Act”), 40 P.S. §§ 1303.101-1303.910.
On December 5, 2007, the plaintiffs filed their legal malpractice action against their former medical malpractice lawyer, alleging negligence, fraudulent misrepresentation, negligent misrepresentation, breach of fiduciary duty, and breach of contract. They alleged that the defendant lawyer’s performance fell below the standard of care for failing to file the required certificate of merit, resulting in the termination of their medical malpractice action.
The plaintiffs subsequently filed a medical expert report dated February 28, 2008, in order to establish the defendant medical providers’ negligence in the underlying medical malpractice case. The plaintiffs subsequently filed an expert report to support their legal malpractice action: the expert opined that where an attorney contacts only one expert to support a certificate of merit and receives a negative response, the legal standard of care is breached.
On May 16, 2016, the plaintiffs filed a motion for continuance of trial after discovering, just six days prior, that their medical expert had signed a consent judgment, in an unrelated case, in which he had agreed not to testify against UPMC or any of its physicians in any pending or future case. The trial court denied the continuance request.
The trial court subsequently precluded the plaintiffs’ medical malpractice expert from testifying, finding that he did not possess adequate qualifications under MCARE, and dismissed, with prejudice, the plaintiffs’ legal malpractice action, finding that the plaintiffs “do not have a medical witness who can opine as the requisite standard of care and breach thereof in support of their underlying medical malpractice claim and . . . [therefore, they] cannot prove either their underlying medical malpractice claim as a matter of law or their legal malpractice claim as a matter of law.” The plaintiffs appealed.
The Pennsylvania Appellate Court stated with regard to the specific facts leading to the plaintiffs’ requested continuance, they alleged that once they were notified that their medical expert had signed the consent agreement, they contacted several, potential replacement physicians who deem themselves experts in the field, but that none of those doctors could review the relevant records and be ready to testify by the scheduled June trial date. Thus, the plaintiffs’ justification for moving for the continuance was not based on a cause previously existing and known. Furthermore, the plaintiffs expeditiously filed for a continuance within days of becoming aware of the consent agreement and learning that replacement experts would not be ready to testify by the originally scheduled trial date.
By requesting a continuance, the plaintiffs were not asking for extra time to secure an unavailable witness; rather, they needed additional time to secure another expert witness as their expert was not permitted to testify at trial due to the consent judgment he entered into with UPMC. Without a standard of care expert who was prepared to testify, to a reasonable degree of medical certainty, that the medical malpractice defendants deviated from the acceptable standard during surgery and post-operatively, the plaintiffs’ chance of a jury verdict in their favor was essentially extinguished.
The Pennsylvania Appellate Court stated that at the time that the plaintiffs filed their continuance motion, their medical expert was not just unavailable, he was no longer able to testify in the matter due to a contractual agreement he had made with the defendant hospital: whether he was qualified to testify in the present case is not at issue – there was no question as to whether their medical expert would ever be able to testify – he was contractually precluded under his consent agreement with UPMC.
The Pennsylvania Appellate Court held “under a totality of the circumstances, the trial court manifestly abused its discretion in denying the [plaintiffs’] continuance motion where, through no fault of their own, their expert was precluded from testifying. The simple fact is that the [plaintiffs] found out that their expert was unable to testify in the case less than three weeks before trial and they were unable to secure a competent expert who would have sufficient time to acquaint himself with this ‘case within a case’ and prepare his testimony for trial. Moreover, due to the complexity of the matter and the vital nature of an expert’s testimony to prove a breach in the standard of care, the court’s decision is manifestly unreasonable. By denying the continuance, the trial court technically sealed the [plaintiffs’] fate, where they were unable to secure a new expert and where [their medical expert] was not permitted to testify in any proceeding involving UPMC and, thus, would not be able to offer his expert opinion or expert report at trial.”
Source Rutyna v. Schweers, Jr., 2018 PA Super 2
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