Law360 (August 7, 2020, 4:55 PM EDT) -- A Pennsylvania law firm has filed suit against Admiral Insurance Co. and Sherman Wells Sylvester & Stamelman LLP in state court alleging they failed to defend it in a legal malpractice suit, while accusing Sherman Wells of negligence and malpractice for "abandoning" it as a client.
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Brent Wieand is based in Philadelphia and represents plaintiffs in serious personal injury and wrongful death cases throughout Pennsylvania and New Jersey. He is known as a tenacious fighter for the rights of injury victims.
Another way to sue an attorney for malpractice is to sue them for breach of contract. When you hire your attorney, you may sign an agreement for services. It may have been called a retainer agreement.
If your lawyer made a big mistake, you might have a legal malpractice case. Are you unhappy with your lawyer’s services or how your lawyer has handled your case? If so, you might be considering filing a lawsuit for legal malpractice.
Lawyers often take legal malpractice cases on a contingency fee basis—which means they take a percentage of your award or settlement rather than charge you by the hour. Because they don’t get paid if you lose, lawyers will carefully evaluate your case and consider whether it’s worth risking the time and emergency to take the matter to trial.
Health care providers like doctors, physical therapists and nurses are often the ones who are held liable for medical malpractice.
two yearsThe Pennsylvania Medical Malpractice Statute of Limitations The Pennsylvania law says that an injured patient must file their claim within two years of the date on which the defendant health care provider committed the alleged medical malpractice.
1: $216.8 Million for Justice A jury awarded Allan Navarro $216.7 million following his medical malpractice case against the Tampa University Community Hospital. They pursued the case after doctors misdiagnosed stroke symptoms for a headache.
Definition of Medical Malpractice Medical malpractice in Pennsylvania is generally defined as negligent or unskilled treatment by a healthcare professional that deviates from accepted medical care standards and results in injury to the patient.
two yearsThe limitations deadline for filing a lawsuit for medical malpractice in Pennsylvania is two years from when the malpractice was first discovered or should have been discovered. This law can be found in Title 42 (Judicial Procedure), Chapter 55 (Limitations of Time) of the Pennsylvania Consolidated Statutes.
Pennsylvania also places a limit on the amount of compensation recoverable in medical malpractice lawsuits. This limit only applies to punitive damages, which cannot exceed 200% of the compensatory damages awarded.
Which Doctors Are Sued Most Often … And Why?Obstetricians/gynecologists — 85 percent.Surgeons — 83 percent.Orthopedists — 79 percent.Radiologists — 72 percent.Anesthesiologists — 58 percent.Internal/family medicine practitioners — 46 percent.Oncologists — 34 percent.
What Are the Most Common Medical Malpractice Claims?Misdiagnosis or delayed diagnosis.Failure to treat.Prescription drug errors.Surgical or procedural errors.Childbirth injuries.
For 2021, the standard cap for noneconomic damages in most malpractice cases is $476,600, while the higher cap for cases involving the permanent injuries described above is $851,000.
Malpractice can have devastating consequences for victims and their families, such as causing serious injury or death for the patient. To protect yourself from medical malpractice and seek justice whenever needed, it is vital to be aware of the four D's: duty, direct cause, damages, and dereliction of duty.
three yearsWhat is the time limit for medical negligence claims? For adults who have capacity, the time limit for medical negligence claims is three years from date the negligence occurred, or the date you became aware of it. That is because symptoms or related illnesses can sometimes take time to present themselves.
What States Are Highest Risk for Doctors?Top Ten Most Litigious States – Percentage of Physicians Sued.Arizona 63%Indiana 70%New York 66%New Mexico 70%Tennessee 67%Illinois 71%Pennsylvania 68%More items...•
Attorney Wilson's practice is primarily devoted to personal injury and malpractice litigation, social security disability, civil litigation, commercial litigation, business law, insurance coverage, D.U.I. defense, eminent domain, real estate, divorce, family law, estate planning and elder care matters. Attorney Wilson is admitted to practice law in the courts of the Commonwealth of Pennsylvania, United States District Court of the Eastern District of Pennsylvania and the United States District Court of the Middle District of Pennsylvania. He has argued before the Pennsylvania Superior Court and the Commonwealth Court of Pennsylvania. He is a member of the Pennsylvania Bar...
Brent Wieand is based in Philadelphia and represents plaintiffs in serious personal injury and wrongful death cases throughout Pennsylvania and New Jersey. He is known as a tenacious fighter for the rights of injury victims. Mr. Wieand has been named as a Super Lawyers "Rising Star" in 2013, 2014 and 2015. If you have questions about a case or your rights following an accident, call him today for a free consultation.
Matt Logue is the founder of Logue Law Firm LLC , with offices in Pennsylvania and West Virginia. Focusing his practice on litigation, he represents clients in civil matters, including business disputes, medical malpractice, wrongful death, motor vehicle accidents and other personal injury litigation. Mr. Logue also provides criminal defense counsel to those who have been charged with felonies or misdemeanors, including driving under the influence and white collar crimes. In addition to his civil and criminal trial practice, he has represented clients in hearings before state and federal agencies, including the United States Merit Systems Protection Board, the United States...
Ben Folkman, licensed to practice law in New Jersey, Pennsylvania, New York, and Washington, D.C., started Folkman Law Offices, P.C. in 1998. Ben is extremely client-focused and works diligently to ensure all client's needs are met. A highly experienced litigator, Ben is certified as a Civil Trial Attorney by the Supreme Court of New Jersey as well as a Board Certified Trial Advocate by the National Board of Trial Advocacy. Ben has been named a New Jersey Super Lawyer for the last ten years and a Top Lawyer in SJ Magazine for the last eight years.
Thomas Wilkinson is an experienced commercial litigator and bar leader. He also has extensive experience in lawyer professional responsibility, legal malpractice, and risk management matters. He has been accepted as an expert witness in federal and state courts.
Attorney Gabriel Levin is known as a tenacious fighter who protects his client's interests as though they were his own; he has tried hundreds of cases and handled all types of personal injury matters and prides himself on helping victims. Every case is meticulously prepared for trial.
Dallas Hartman of Dallas W. Hartman P.C., Attorneys at Law serves clients from six office locations throughout Northwestern Pennsylvania and Ohio in injury matters. He has been named one of the Top Lawyers in Pennsylvania by Super Lawyers for the five years in a row.
Brenco Oil holds that if a legal malpractice complaint alleges that an attorney was careless in performing a contract, not that the attorney failed to perform a contract, the gist of the action sounds in tort, not breach of contract.
v. Blaney, 2017 U.S. Dist. LEXIS 204775 (E.D. Pa. Dec. 13, 2017), the court held that a legal malpractice claim alleging an attorney was careless in performing a contract, but not that the attorney failed to perform a contract, sounded in tort, not breach of contract.
This is significant to a statute of limitations defense to a legal malpractice claim because the statute of limitations in Pennsylvania for a negligence claim is two years, while the statute of limitations for a breach of contract claim is four years.
When a plaintiff brings tort and breach of contract claims arising from the same conduct, the court must decide whether the complaint sounds in tort or breach of contract. Bruno v. Erie Ins. Co., 106 A.3d 48, 68 (Pa. 2014). Even if a contract exists and the claim arises from actions taken while performing the contract, the claim is not “automatically” for breach of contract. Rather, the contract could simply be “the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed.” “Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.
Thus, although nearly all legal malpractice claims arise from a contract between the attorney and the client, not all legal malpractice claims sound in breach of contract. “ [W]hen a plaintiff’s cause of action is based on the attorney’s failure to exercise due care, it will sound in contract only if the attorney fails to follow the client’s specific instructions or, by her negligence, breaches a specific provision of the contract.” Edwards v. Thorpe, 876 F. Supp. 693, 694 (E.D. Pa. 1995). In Brenco Oil, the court found that the gist of the action was in tort because the plaintiff alleged a “careless performance” in drafting the title opinions, rather than a “flat-out failure to perform.”
This is a departure from the line of cases that had suggested a legal malpractice claim may sound in breach of contract where the claim is merely that the attorney breached an obligation to provide representation in accordance with the appropriate standard of care.
If your attorney fails to follow this agreement, you may have a claim for breach of contract just like you could sue anyone else for violating the terms of a deal. Some examples of an attorney breach of contract case may include:
If your attorney makes decisions that aren’t in your best interests, their actions may amount to a breach of fiduciary duty that allows you to sue your attorney for malpractice. Some examples of breach of fiduciary duty include: You ask your attorney to prepare a will that leaves your assets to your children.
One way to sue an attorney for malpractice is to bring a claim for negligence. A negligence claim says that the attorney didn’t do a competent job in your case. An attorney is presumed to be qualified to handle your case. If they don’t have the skills or experience to do a competent job, they shouldn’t take the case. In addition to having the right skills, they must also avoid making careless errors that can unravel your claim. Here are a few examples of when attorney negligence can amount to malpractice:
Here are a few examples of when attorney negligence can amount to malpractice: An attorney with no experience in personal injury law takes a personal injury case. The attorney fails to assert a claim that likely would have been successful for the client. The client misses the opportunity to bring the claim. A breach of contract claim proceeds ...
A breach of contract case depends on the terms of your contract or retainer agreement. An experienced attorney for lawyer malpractice claims can help you review what happened in your case to see if a breach of contract claim applies.
A breach of contract claim proceeds to trial. The other party wants to admit testimony that’s barred by the Florida Evidence Code as hearsay . The attorney who represents you doesn’t know the evidence rules well enough to assert the appropriate objection. The testimony damages your case, and you ultimately lose.
Based on the Florida statute of limitations for your case, you only have until a specific deadline to bring your claim. Your attorney either doesn’t bother to determine the deadline, or they know of the deadline and they miss it. Either way, you’re unable to bring your case, or it quickly gets dismissed.
This requires juries to allocate fault between plaintiffs and defendants, e.g., plaintiff was 10% at fault and the defendant was 90% at fault. Under Pennsylvania law, if a plaintiff is more than 50% at fault they are not entitled to recover any damages.
The increased risk of harm theory is frequently applied in cases based on delayed diagnosis. For instance, in Renna v. Schadt, 64 A.3d 658 (Pa. Super. 2013) the plaintiff proved causation by showing that an 11-month delay in diagnosing her breast cancer increased her risk of harm by negatively impacting her treatment and prognosis.
Under Pennsylvania law, if a plaintiff is more than 50% at fault they are not entitled to recover any damages. So if a jury determines that a plaintiff was 60% responsible and the defendant was 40% responsible for an injury the plaintiff loses the case. When the plaintiff's share of fault is less than 50% they are entitled to damages but the amount of damages will be reduced in based on the plaintiff's percentage of fault.
Establishing the second element of a medical malpractice claim is really a 2-part process. The plaintiff must: (i) define the applicable standard of medical care; and (ii) demonstrate that the defendant's treatment or actions breached that medical care standard.
This essentially means that all lawsuits for medical malpractice must be filed within 7 years of the injury regardless of when it was discovered.
Medical malpractice in Pennsylvania is generally defined as negligent or unskilled treatment by a healthcare professional that deviates from accepted medical care standards and results in injury to the patient . Ditch v.
In Pennsylvania, the "standard of medical care" is defined objectively as the skill, knowledge, and procedures normally used and accepted in the medical community. Plaintiffs in malpractice cases define the applicable standard of care by presenting an expert witness.
The Brenco decision which bucked that trend was made in part based upon the Pennsylvania Supreme Court case, Bruno v. Erie Ins. Co., 630 Pa. 79, 106 A.3d 48, 68 (Pa. 2014). In Bruno, plaintiffs purchased homeowners insurance from defendants, who agreed to pay monies to plaintiffs if there was any direct physical loss to the property caused by mold. Mold was discovered, but defendants refused to pay, so plaintiffs filed a complaint which had a count for professional negligence. Defendants argued that the negligence claim was barred by the “gist of the action” doctrine, which states that an alleged tort claim against a party to a contract is barred when the gist of the cause of action that sounds in negligence is actually a claim against the party for breach of its contractual obligations. The appellate court disagreed and held that the claim was not due to failure to perform per a contract, but was instead for a negligent failure to exercise reasonable care resulting in injury. In Brenco, the district court applied the Bruno court’s rationale, and expressly rejected Bailey and Gorski.
New York’s statute of limitations for Legal Malpractice is three years and six for a breach of contract claim 1. In Pennsylvania, it’s two for a negligence action 2, and four for breach of contract 3.
Attorneys have a duty to exercise reasonable care and to make sure that clients receive zealous representation. Increasingly though, client are unsatisfied with services received, or results obtained. Legal malpractice claims stem from being retained by a client, who is SO unhappy with the results, or believes something went so wrong sufficient to file suit. Getting sued is not something any attorney wants, but unfortunately it is well reported that legal malpractice claims are on the rise. A recent decision from the United States District Court for the Eastern District of Pennsylvania offers some limited support at least: finding that a shorter statute of limitations for claims against attorneys should apply.
Brenco Oil is an oil and gas company that retained the Brann law firm to identify owners of land in order to buy oil, gas, and mineral rights to the land, and sell them for a profit. On December 13, 2017, the United States District Court for the Eastern District of Pennsylvania dismissed plaintiffs’ legal malpractice claim that was brought under a Breach of Contract theory. The court held that plaintiffs’ allegations sounded in tort due to the facts supporting a count for professional negligence, rather than breach of contract.
A plaintiff may avoid asserting a legal malpractice claim in an effort to take advantage of the longer statute of limitations associated with breach of contract and/or breach of fiduciary duty claims; however, the Courts generally treat the “disguised” cause of action as a claim for legal malpractice and apply the applicable legal malpractice law. See Walter v. Castrataro, 94 A.D.3d 872, 942 N.Y.S.2d 151 (2d Dept. 2012) (the complaint is “nothing more than a rephrasing of the claim of malpractice in the language of breach of contract”).
Lawyers without insurance still can be sued for malpractice. If the lawyer doesn't carry malpractice insurance, it may be harder or even impossible to collect. For this reason, it may be difficult to find a lawyer who will accept such a case on contingency...
Your assumption is incorrect. If a lawyer is professionally negligent, i.e., the representation falls below the standard of care and you have suffered damage, you can sue for malpractice (negligence or breach of duty) whether or not the attorney carries E&O insurance...
Breach of fiduciary duty. Lawyers owe certain fiduciary duties to their clients, such as the duty of loyalty and duty of confidentiality. Your lawyer must act in your best interests and must keep your communications confidential.
Lawsuits against lawyers usually fall under three categories: negligence, breach of contract, and breach of fiduciary duty . Negligence. Negligence is the most common grounds for a malpractice lawsuit. It happens when your attorney fails to use the skill and care normally expected of a competent attorney. For example, you might have grounds ...
Breach of contract. Breach of contract occurs when a lawyer violates a specific term of the lawyer’s agreement with a client. For example, if your contract says that your lawyer will create a corporation for you by a certain date, the lawyer must stick to that agreement. Breach of fiduciary duty. Lawyers owe certain fiduciary duties ...
It happens when your attorney fails to use the skill and care normally expected of a competent attorney. For example, you might have grounds for a negligence suit if your lawyer missed an important deadline, failed to prepare for trial, or failed to follow court orders. Breach of contract. Breach of contract occurs when a lawyer violates ...
Report the lawyer to your state’s disciplinary board. Every state has a board that disciplines lawyers for ethical violations. If your lawyer isn’t communicating with you or listening to your wishes, this might get his or her attention. In some cases, the board might order the lawyer to compensate you for a clear financial loss—for example, if your lawyer took fund from your client account. (To lean more, see our article on reporting a lawyer for an ethical violation .)
Your lawyer owed you a duty to competently represent you.
The time limit for filing a legal malpractice case can be as short as one year.
The PBA Professional Liability Committee is charged with conducting legal malpractice avoidance and loss-prevention programs. The Avoiding Legal Malpractice seminars are a benefit provided to all counties each year. With the Pennsylvania Bar Association Insurance Program, advised and administered by USI Affinity, you have the ability to gain valuable malpractice avoidance information, receive up to a 7.5% discount* on your malpractice insurance and earn up to 2 hours of ethics, professionalism, or substance abuse CLE credit. (*The 7.5% credit will be pro-rated based on the number of attorneys in the firm who attend the seminar. The discount does not apply to part-time policies.)
PBA members who have a question related to ethics, professionalism or the business side of practicing law have access to our full-time ethics counsel and law practice management coordinator, as well as online resources.#N#Ethics Hotline: 800.932.0311 ext. 2214#N#Law Practice Management: 800.932.0311 ext. 2228
Maintaining your Conflict of Interest System, PBA Law Practice Management article by Ellen Freedman
Pennsylvania’s lawyers are not immune from substance abuse , alcoholism, drug addiction, problem or compulsive gambling, depression, bipolar disorder, eating disorders, etc. Whether you are worried about your own well-being or that of a member of your family, a colleague, a judge or a law school student, LCL can help.