Superior Court Revives Bifurcated Med Mal, Legal Mal Case

January 8, 2018

Originally published in the New Daily Report, an ALM Media publication, on January 8, 2018.

By: P.J. Dannuzio

The Pennsylvania Superior Court has ruled that a previously dismissed legal malpractice lawsuit against an attorney accused by his clients of botching a medical malpractice case can proceed to trial, along with the underlying medical malpractice claims.

A nine-judge panel consisting of Judges Anne E. Lazarus, Susan Peikes Gantman, John T. Bender, Mary Jane Bowes, Jacqueline O. Shogan, Judith Ference Olson, Paula Francisco Ott, Victor P. Stabile and Alice Beck Dubow overturned an Allegheny County judge’s grant of nonsuit in the case filed by plaintiffs Aldis Rutyna and Mary Jane Rutyna against attorney William S. Schweers Jr.

 The Rutynas retained Schweers to handle their medical malpractice case against the University of Pittsburgh Medical Center over complications from Aldis Rutyna’s spinal surgery. According to Lazarus’ opinion, the case was dismissed because Schweers failed to file a certificate of merit. For that, the Rutynas sued him for negligence, fraudulent misrepresentation, negligent misrepresentation, breach of fiduciary duty, and breach of contract.

The medical malpractice and legal malpractice portions of the trial were bifurcated, according to Lazarus’ opinion.

Issues related to the legal malpractice portion of the case made their way to the Superior Court two previous times: First, the court heard the Rutynas’ appeal after the trial court granted summary judgment in Schweers’ favor because the Rutynas failed file a timely expert liability report on the legal malpractice claim. Then, the court heard the Rutynas’ appeal after the trial court agreed with Schweers that the expert report they did submit on the legal malpractice claim failed to satisfy their burden. Both times, the Superior Court sided with the Rutynas and remanded the case.

This time, the Rutnyas appealed on multiple grounds, but the Superior Court focused mainly on one issue: the lower court’s decision denying the Rutnyas a continuance to find a new expert witness after the previous one was deemed unqualified. That decision resulted in the medical malpractice case and, by extension, the legal malpractice case, being dismissed.

Lazarus said the lower court’s ruling was an abuse of discretion.

“Under a totality of the circumstances, we conclude that the trial court manifestly abused its discretion in denying the Rutynas’ continuance motion where, through no fault of their own, their expert was precluded from testifying,” Lazarus said. “The simple fact is that the Rutynas 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.”

She added further down in the opinion, “Swift resolution of cases is, no doubt, the linchpin of judicial economy. However, it is not an end in itself. The overall effect that an additional seven months would have added onto this already protracted case is negligible, not to mention the fact that in dismissing the case, we now have ‘a case, within a case, within a case.’”

James R. Cooney represents the plaintiffs.

“This guy was severely injured by his doctor and he deserved a trial,” Cooney said of Aldis Rutyna. “We’re happy we now have our day in court.”

James Schadel of Burns White represents Schweers and did not respond to a request for comment.

Filed under: Expert Witnesses,Law.com,News

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