Mother's claims against her lawyers in medical malpractice case dismissed

By Carrie Salls | Oct 11, 2018

PHILADELPHIA – Claims filed by a minor’s mother against five attorneys who worked on the daughter’s medical malpractice case were dismissed in a Sept. 25 opinion issued by the U.S. District Court for the Eastern District of Pennsylvania.

The lawsuit was filed by Rasheena Phinisee on behalf of herself and minor daughter, “A.P.”

“For the past eight years, Phinisee has been engaged in litigation stemming from injuries sustained by her daughter, efforts to settle those claims and her apparent dissatisfaction with attorneys who have represented her,” the ruling said.

The court said the medical malpractice case was filed in 2010 by Phinisee’s attorneys, Derek Layser and Gilbert Spencer.

Attorney Derek Layser   FindLaw

According to a summary of the lawsuit provided in the Sept. 25 ruling, Phinisee claimed that her daughter was diagnosed with “biliary atresia, a disorder that causes liver failure, as a result of her ingestion through breast milk of Macrobid, a medication prescribed for Ms. Phinisee at a federally funded health care clinic.”

The opinion said Phinisee directed her attorneys to accept a $1.2 million settlement offer, but withdrew her approval of the settlement “because she had discovered that the settlement proceeds, which were to be placed in a special needs trust for the benefit of A. P., were subject to a ($703,491.25 lien) held by the Pennsylvania Department of Public Welfare (DPW) for past medical expenses paid through Medicaid.”

After she decided to decline the settlement offer, Phinisee fired Layser and Spencer, who claimed that, despite the plaintiff’s contention that she did not know about the lien when she accepted the offer, they had informed her of the lien and that she was happy with the $1.2 million offer.

A magistrate judge entered an order enforcing the settlement on Aug. 6, 2012. Following denial of Phinisee’s motion for reconsideration of the enforcement ruling, the opinion said “the Department of Health and Human Services paid the $1.2 million settlement on Sept. 10, 2014.”

“The amount owed specifically to Ms. Phinisee and A.P. after attorneys’ fees - $859,587.73 - was placed in an escrow account of the Law Firm of Layser & Freiwald, pending the creation of a special needs trust and the resolution of the DPW Medicaid lien,” the ruling said. “The funds remain in the escrow account undistributed to this day.”

The court said Phinisee hired another lawyer, Dennis Friedman, and filed a lawsuit against Layser, Spencer, Spencer & Associates and Layser & Friewald PC “for negligence, alleging that they induced her to settle for significantly less than the value of her claim.”

A request by Phinisee to reopen the settlement was denied on Jan. 10, 2018.

U.S. District Judge Cynthia Rufe said in her ruling that she would “dismiss any claims raised on behalf of A.P. without prejudice, and dismiss Phinisee’s claims for failure to state a claim, as barred and malicious, and for lack of subject matter jurisdiction.”

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