medical malpractice


Malpractice cases against attorneys and two health care facilities will be reinstated after the state Superior Court said the plaintiff had provided enough evidence to proceed with the cases.

On June 6, a split three-judge panel of the Superior Court in Sokolsky v. Eidelman reversed decisions from the Lehigh County Court of Common Pleas that dismissed a plaintiff’s corporate negligence and vicarious liability claims against two health care facilities, and tossed a subsequent legal malpractice action.

Writing for the majority, Judge Sallie Updyke Mundy determined that the lower court should not have dismissed the vicarious liability action, which stemmed from alleged medical malpractice, simply because a specific medical practitioner was not named in the complaint. Mundy additionally held that the plaintiff provided enough evidence to move forward with the corporate negligence claims and the legal malpractice claims against her former counsel.

“Sufficient evidence of record exists to support Sokolsky’s vicarious liability theory, and, as such, she may have proceeded to trial but for the attorneys’ actions,” Mundy said. “Simply because employees are unnamed within a complaint or referred to as a unit, i.e., the staff, does not preclude one’s claim against their employer under vicarious liability if the employees acted negligently during the course and within the scope of their employment.”

While the majority remanded the case in full, Judge James J. Fitzgerald III, in his dissenting opinion, said he would have sent the case back to the trial court only to review the sufficiency of the evidence before making any determinations about whether the case was properly dismissed on summary judgment.

According to Mundy, plaintiff Janice L. Sokolsky sued Edward R. Eidelman and Eidelman Crossley LLC, alleging legal malpractice for their handling of a medical malpractice suit she brought against Lehigh Valley Hospital Center and Manor Care. Sokolsky, who had a history of diabetes, coronary artery disease, peripheral arterial disease and chronic renal insufficiency, had alleged that during her stay at the medical facilities she developed an ulcer on her heel that deteriorated to the point where she had to undergo a below-the-knee amputation, Mundy said.

Following the amputation, Sokolsky consulted with Eidelman and the firm. The trial court’s summary of the litigation indicated the defendants conceded they did not file a timely medical malpractice action, but instead contested whether the failure to do so was negligent.

After the close of discovery, Eidelman and the law firm made a motion for summary judgment to have the case dismissed, which was granted by the trial court.

Sokolsky argued to the Superior Court that the trial court misapplied the law by concluding that she was required to identify the specific health care facility staff member who acted negligently to support her vicarious liability action. Sokolsky additionally noted that she had provided expert testimony regarding the alleged deviations from the standard of care by the nursing staff.

The trial court had said that while the expert reports noted specific instances of negligence, the law did not recognize the reasoning and the conclusions were too broad. The court cited the Superior Court’s 2004 ruling in Sutherland v. Monongahela Valley Hospital in determining that testimony from an expert was inadmissible.

Mundy, however, said Sutherland was distinguishable from Sokolsky’s suit. Mundy cited the state Supreme Court’s 2012 decision in Scampone v. Highland Park Care Center and said that the “trial court’s interpretation of vicarious liability rebuffs both the intent and the purpose underlying this theory of recovery.”

Mundy then noted that Sokolsky had identified “a number of” health care providers that allegedly breached their duty of care, and that the plaintiff produced four experts regarding her suit against the health care facilities. Because genuine issues of material fact existed in the case, Mundy said the trial court improvidently granted summary judgment for Eidelman and the firm.

Mundy additionally determined that the trial court should have used either Section 323 of the Restatement (Second) of Torts, or an equivalent five-factor test outlined in the Supreme Court’s 2000 decision in Althus v. Cohen when it dismissed Sokolsky’s corporate negligence claim. Mundy said the trial court improperly used a four-pronged test outlined in the 1991 Supreme Court case Thompson v. Nason Hospital.

In light of the cited holdings, Mundy additionally remanded the case for reconsideration of the plaintiff’s claims for punitive damages, which had likewise been dismissed by the trial court.

Sokolsky’s attorney, Derek R. Layser of Layser & Freiwald, said he is hoping the case will move to a pretrial conference and then to a new trial.

“We always thought the court was wrong on the law as it applied to the facts of this case,” Layser said. “When you look at the experts, we have a board-certified internist, a nurse, a vascular surgeon and a pathologist. The case was worked up.”

Matthew S. Marrone of Goldberg Segalla, who represented Eidelman and Eidelman Crossley, said the attorneys did not sue the health care facilities because Sokolsky had an extensive medical history, which included prior amputations of toes. He also noted that the plaintiff will still need to establish at trial that staff at the facilities breached their duty owed to the plaintiff.

“We respect the Superior Court’s decision, but based on all of the facts present in this case, we believe [trial] Judge [Carol K.] McGinley’s dismissal was appropriate,” Marrone said.

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI.

(Copies of the 29-page opinion in Sokolsky v. Eidelman, PICS No. 14-0942, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •