HARRISBURG — A Harrisburg personal injury attorney should not be held liable in two former clients' legal malpractice case over alleged mishandling of litigation over a second surgical sponge discovered left behind over several surgeries.
In his 15-page dissent issued March 30, Superior Court Judge Victor P. Stabile said he found "neither error of law nor abuse of discretion" in a lower court decision in favor of attorney Richard Angino and his firm, Angino and Rovner.
Angino and his firm are being sued by former clients Kent and Kelly Garman over his alleged mishandling of complicated litigation that involved two sponges left behind in Mrs. Garman over several surgeries. The case was complicated because it was not clear when the second discovered-left-behind sponge had been left behind, raising multiple questions about statute of limitations.
Stabile said he based his dissent, in part, on the hospital and physicians the Garmans initially sued following a second Cesarean-section performed on Mrs. Garman essentially being ruled out as parties in the second case.
"Here, judicial estoppel does not apply because appellees were not parties to the previous action," Stabile said in his dissent. "Because I believe the Garmans have failed to establish any error of law or abuse of discretion in the trial court’s grant of summary judgment, I would affirm the trial court's order."
Stabile's dissent followed a majority Superior Court panel opinion that reversed a lower court's ruling in favor of Angino and his firm.
In its 21-page majority opinion, the court's majority ruled that Angino's win in the couple's first lawsuit provided no liability shield in his alleged mishandling of a second case filed after a second sponge had been discovered left behind.
The Superior Court majority vacated and remanded a Dauphin County Civil Court of Common Pleas May 2018 dismissal of the legal malpractice case.
Superior Court Judge Mary Jane Bowes wrote the majority opinion, which was joined by Judge Judith Ference Olson.
The case stems from suffering Mrs. Garman endured when surgical sponges were left inside her following several surgeries. Angino and his law firm represented the Garmans in two subsequent medical malpractice cases.
The first case commenced after a sponge was discovered left inside Mrs. Garman's following her 1993 C-section at Chambersburg Hospital.
"Following the surgery, Mrs. Garman experienced abdominal pain that her doctors attributed to a uterine fibroid," the majority opinion said. "During a myomectomy on September 18, 1997, a surgical procedure to remove the fibroid, the sponge was discovered in her left lower abdomen. An abscess had formed around the sponge."
In the first case, the Garmans sued the hospital and the physician who performed the C-section and a jury awarded the couple more than a half-million dollars in damages.
The second case stemmed from another C-section Mrs. Garman underwent in June 1999, performed by two physicians at Milton S. Hershey Medical Center. After Mrs. Garman suffered abdominal pain following that surgery, a CT scan performed about seven years later turned up a second surgical sponge left behind, which was removed in May 2006.
The second lawsuit was filed in October of the following year against the Medical Center and the two physicians who performed the second C-section.
During discovery in the second case, a Garman expert witness opined that the second sponge could have been left behind during the first C-section. That prompted the couple to request permission to sue Chambersburg Hospital and the physician who performed the earlier C-Section.
The Dauphin County court granted permission for the Garmans to amend their complaint over defense objections that it was barred by statute of limitations.
In March 2010, a jury found in favor of the Garmans and against Chambersburg Hospital and the physician in the first C-section, finding no negligence against Milton S. Hershey Medical Center and the two physicians in the second C-section. That jury awarded the Garmans about $735,000 in damages.
The Superior Court subsequently overturned the verdict, finding the trial court was wrong when it granted permission for he amended complaint after the statute of limitations had expired. The superior court vacated the judgment and dismissed all claims related to the 1993 surgery, but also affirmed the lower court's ruling that there had been no negligence on the part of the second hospital and two physicians in the later surgery.
The Garmans then sued Angino and his law firm for malpractice, alleging negligency in failing to more timely seek amendment of their complaint, which they claimed resulted in their loss of damages in the second verdict.
Angino and his firm asked for summary judgment in the case, saying the statute of limitations had tolled, but the lower court denied that motion, ruling that "genuine issues of material fact exist with regard to the applicability of the equitable discovery rule."
The Garmans appealed.