HARRISBURG – An appeal in an 11-year-old legal malpractice lawsuit has gone the way of two plaintiffs who blame their attorney for the dismissal of their medical malpractice case.

The state Superior Court ruled Jan. 4 for Aldis Rutyna and Mary Jane Rutyna against attorney William S. Schweers Jr., who represented them in a medical malpractice against William F. Donaldson III, M.D. and the University of Pittsburgh Medical Center-Presbyterian (UPMC).

That case, unfortunately for the Rutynas, was dismissed because Schweers failed to file a certificate of merit, a prerequisite for a professional liability action brought pursuant to the Medical Care Availability and Reduction of Error Act.

The opinion states that after a 2004 laminectomy performed by Donaldson at UPMC, Aldis Rutyna suffered nerve damage from dural tears (a nick of the spinal cord's covering by a surgeon's instrument), and hired Schweers to file a medical malpractice lawsuit on his behalf. 

In 2006, the trial court dismissed the claim since the Rutynas' lawsuit did not include a Medical Care Availability and Reduction of Error Act (MCARE) certificate.

In 2007, the opinion states the Rutynas filed suit against Schweers for allegedly failing to file the correct MCARE documentation, arguing negligence, fraudulent and negligent misrepresentation and breach of fiduciary duty and breach of contract. 

In 2012, Schweers countered the claim, arguing the Rutynas never gave him the needed medical expert report to gain an MCARE documentation.

But the Rutynas proved they had offered a report by countering Schweers' motion with a February 2008 report of negligence by Dr. Mark Foster. In 2013, the court struck the certificate of merit provided by Foster, demanding a new certificate within 45 days, to which Schweers moved for summary judgment for the Rutynas' failure to do so on time.

After a two-year back-and-forth of dismissals and appeals, Foster signed a consent judgment stating he would not testify against UPMC or any physician in the pending or future case in an unrelated case. The Rutynas filed for a continuance in 2016 but were unable to retain a relevant medical expert in time to testify on their behalf.

“The reality is that without a standard of care expert who was prepared to testify, to a reasonable degree of medical certainty, that Dr. Donaldson’s/UPMC’s care deviated from the acceptable standard during surgery and postoperatively, the Rutynas’ chance of a jury verdict in their favor was essentially extinguished,” Judge Anne Lazarus wrote.

“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 continued her explanation, citing Commonwealth v. Brown of 1986.

“[A]n appellant must be able to show specifically in what manner he was unable to prepare his [case] or how he would have prepared differently had he been given more time,” Lazarus wrote in the appeal.

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