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By waiting too long to take action against her attorney, a client has lost her chance to sue him for legal malpractice for accepting a $100,000 settlement without her consent in a case that would have been worth an award of $1.5 million. The Pennsylvania Superior Court in Piluso v. Cohen based its decision on supreme court precedent holding that when a client doesn’t immediately contest an attorney’s actions, he or she essentially condones them. According to Superior Court Judge Patrick Tamilia’s opinion, defendant Harry S. Cohen worked out a settlement deal for his client, Rose Ann Piluso, in her underlying medical malpractice claim for $100,000 against Armstrong County Memorial Hospital in Kittanning, Pa., and two of its doctors. The settlement was reached in chambers, without Cohen’s presence. The case proceeded to trial against the only non-settling doctor, resulting in a $1.5 million verdict. The jury apportioned all liability on the hospital and two settling doctors. The trial court enforced the settlement. Piluso filed a legal malpractice action against Cohen and his firm, Cohen & Derenzo, arguing she never agreed to the settlement, authorized the attorney to make the settlement, or signed a release. The Armstrong County Common Pleas Court granted Cohen’s motion for summary judgment. Piluso appealed to the Superior Court. Judges Michael Eakin and James Cavanaugh were also on the panel. Tamilia said Piluso testified she did not hear about the settlement until the day after it was made, when she asked Cohen why the settling defendants were not in the courtroom. “[Piluso] contends that while she expressed immediate dissatisfaction with the settlement to Cohen, she refrained from mentioning her dissatisfaction to anyone else at appellees’ discretion,” Tamilia said. The Superior Court’s decision was dictated by a statement the state supreme court made in the 1952 case Yarnall v. Yorkshire Worsted Mills: “[a] client ratifies his attorney’s act if he does not repudiate it promptly upon receiving knowledge that the attorney has exceeded his authority.” Tamilia said Piluso’s lack of prompt action ratified Cohen’s actions. “It is undisputed that, upon learning that a settlement had been reached, [Piluso] took no action to repudiate counsel’s authority to enter into the settlement. To the contrary, [Piluso], at a minimum, acquiesced in her counsel’s actions and, through her silence, allowed the agreement to be carried out,” Tamilia said. “Despite her argument that she was unaware of the settlement and prevented from voicing her disapproval when she became aware of it, the evidence establishes that she was fully aware of the settlement and its effect upon her medical malpractice case.” Tamilia pointed out that Piluso learned of the settlement on Oct. 16, 1996, but didn’t voice her disapproval until after the jury verdict on Oct. 21. “Clearly, [Piluso] discovered a problem with the settlement only after an unfavorable result at trial, wherein the parties insulated by the settlement were found by a jury to be jointly and severally liable,” he wrote. Piluso also claimed the trial court was wrong to deny her motion for partial summary judgment on the issue of damages. She argued she suffered $1.4 million in damages from Cohen’s malpractice. But Tamilia said the trial court was right, since her argument was purely speculative. “While the jury returned a verdict in the amount of $1,500,000 and apportioned the liability on only the settling defendants, there is no way of determining what the result would have been had there been no settlement and had all defendants proceeded to trial,” he said. “The settling defendants, in putting on their case and in cross-examining witnesses, likely may have altered the perceptions of the jury with respect to the issues of both liability and damages.”

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