A lawyer’s appeal of a sanction prohibiting her from defending her client in a medical malpractice case has ended without success after the state Supreme Court denied her petition for a writ.
A Philadelphia judge ordered that the defense attorney, who wrote a letter to the employer of the plaintiff’s expert witness, be disqualified from representing her own client.
The defense attorney, Nancy K. Raynor of Raynor & Associates in Malvern, Pa., was also ordered to pay the plaintiff’s costs and attorney fees in litigating the motion, which the judge said in her order was $44,693.25.
The Supreme Court’s order denying the writ of prohibition sought by Raynor was entered January 14.
One plaintiffs attorney, Matthew D’Annunzio of Klehr Harrison Harvey Branzburg, said writs of prohibition are rare, and they request that the Supreme Court direct the Court of Common Pleas to change course.
“We certainly believe it’s the correct procedural ruling: that it’s not an order that can be taken up in an interlocutory fashion,” D’Annunzio said. “We’re glad the order stands and we’re seeking a payment of the sanctions award.”
While any future appeal of Raynor’s disqualification might be made moot because of how the case has unfolded, D’Annunzio said that in his and his co-counsel’s view, Philadelphia Court of Common Pleas Judge Jacqueline F. Allen has weighed it.
“Ms. Raynor, by virtue of her conduct, has to be disqualified,” D’Annunzio said.
The defendants also are appealing an order by Philadelphia Court of Common Pleas Judge Paul P. Panepinto granting a new trial in the case over an alleged delayed diagnosis of lung cancer after a defense expert testified in violation of the court’s order that the plaintiff was a smoker.
Raynor was disqualified from representing medical malpractice defendant Dr. Jeffrey Geller and Roxborough Emergency Physician Associates.
In Sutch v. Roxborough Memorial Hospital, the plaintiff’s allegation is that Geller of Roxborough Memorial Hospital failed to obtain diagnostic testing that could have resulted in the timely diagnosis of Rosalind Wilson’s ultimately fatal lung cancer.
Raynor wrote to the senior counsel in the Office of General Counsel for the Hospital of the University of Pennsylvania, Mary Ellen Nepps.
Raynor wrote, according to an exhibit attached to court papers, that Dr. Stefanie B. Porges was retained by the plaintiff.
Raynor wrote to Nepps, according to the letter, “The case involves an acknowledged failure to relay concerning X-ray findings to the patient’s physicians and the patient herself, resulting in a lengthy delay in the diagnosis of her cancer. … Nevertheless, the plaintiff has retained one of Penn’s emergency room physicians … who has offered the untenable opinion that because Dr. Geller ordered the test, it was his responsibility to follow through on obtaining the results and advising the patient of them.
“Dr. Porges has clearly overlooked the well-established concept of hand-off to an accepting inpatient team and I thought you might want to know that, if this is her position and plaintiff’s attorneys become aware of it, it could expose the Hospital of the University of Pennsylvania to significant liability.”
Porges did testify at trial, which Raynor said in an interview last year showed there was “absolutely no harm caused by the letter I wrote to Penn.”
One of Raynor’s attorneys, David Heim of Bochetto & Lentz, did not respond for a request for comment.
Allen also entered an order assessing costs against co-defendant Dr. Melanio D. Aguirre. While the plaintiff had sought more, Allen entered an order for $24,494.22 in out-of-pocket costs such as expert fees for preparing for trial and travel expenses.
The case had been on the eve of trial last winter, but it was postponed because of the sudden admission of one of the other defendants to the hospital.
After the case was tried in May, the jury entered a defense verdict in favor of Geller and Roxborough Emergency Physician Associates, but returned a plaintiff’s verdict of $190,000 against Aguirre and Roxborough Memorial Hospital, according to court papers.