High-Low Pact Upheld in Med Mal Verdict
The Legal Intelligencer
April 20, 2005

By: Melissa Nann Burke

The Superior Court has upheld a $1.15 million judgment entered after the third trial in a Philadelphia medical malpractice case, rejecting the plaintiffs' request to strike a high-low agreement among the parties and enter the jury's 9 million award. The three-judge panel also rejected the arguments of the defendants and their insurers for a judgment notwithstanding the verdict or a new trial in Miller v. Ginsberg.

Prior to the jury's announcing its verdict in Miller in February 2004, the parties placed their high-low agreement on the trial court record before Common Pleas Judge Victor J. DiNubile, Jr. According to the opinion, the defendants' primary insurer was limited to paying no less than $50,000 and no more than $150,000 toward the award (with no delay damages). The excess insurer was limited to paying $1 million.

The jury awarded the plaintiffs $9 million. In June, DiNubile granted the defendants' motion to enforce the high-low agreement and entered judgment for the final amount of $1.15 million, according to the opinion. Both sides appealed.

The plaintiffs told the Superior Court that DiNubile had erred in enforcing the high-low agreement because the deal was never "consummated," said Gayle Lewis, plaintiffs' counsel. Lewis claimed that the excess insurer, the state MCARE Fund, had agreed - off the record - not to appeal the verdict. Since the fund appealed, the high-low agreement was void, Lewis argued.

The Superior Court disagreed, in part because the MCARE Fund never waived any appellate rights on the record. "We may not ignore the clear language of this agreement," Senior Judge Peter Paul Olszewski wrote. "As we would not have overturned the clear terms of the agreement had a lower verdict been returned, we will not now upset the clear and unambiguous terms of the settlement agreement now that a higher verdict has been returned." Olszewski was joined by Judges Susan Peikes Gantman and Jack A, Panella.

Frank Gerolamo III, counsel for the defendants, said, "The MCARE Fund instructed me to appeal the [trial level] verdict." Gerolamo is with Gerolamo McNulty Divis & Lewbart. He was pleased with the court's decision to affirm the high-low agreement, but said he wasn't sure whether the fund will ask him to appeal as to the defendants' arguments on evidentiary and statute of limitations issues.

Lewis of Gayle R. Lewis & Associates in Bryn Mawr said she is considering an appeal.

The defendants, urologist Philip C. Ginsberg and his practice group, claimed that plaintiff Kimberly Miller knew shortly after a surgery in January 1996 that she had been injured. But Miller and her husband didn't file suit until nearly two-and-a-half years later, according to the opinion. By then the statute of limitations had run out, Gerolamo contended.

But the jury determined that Miller's claims weren't barred by the statute of limitations because - as she argued - she didn't know of her injuries until a different doctor treated her later that year.

The Superior Court agreed with DiNubile that the jury should have decided the statute of limitations issue because it was a question of fact when Miller should have known about her injuries.

Millers lawsuit alleged that Ginsberg's negligently cut one of her ureters during one operation and, days later, negligently failed to repair the severed ureter, resulting in reflux or urine to her right kidney that ultimately necessitated its removal, according to the opinion.

Miller suffered from a congenial defect called double ureter and had undergone several surgeries to address this problem and other maladies. Ginsberg said built-up scar tissue from previous surgeries made impossible the identification of Miller's ureter, and, thus, he was not negligent in severing it, according to the opinion.

The Superior Court panel rejected the defendants' arguments that DiNubile improperly instructed the jury on the statute of limitations issue. The panel said the instruction "accurately reflected the law and was sufficient to guide the jury in deliberations on this point."

Gerolamo also objected to several of DiNubile's evidentiary ruling - foremost the admissibility of one of Miller's experts, John Shane. Defendants were precluded from cross-examining Shane "through the use of his past testimony, and three of his prior reports from separate cases." The defendants alleged that Shane "perjured himself by inadvertently writing and testifying to conflicting reports from both parties to this action, by introducing his testimony in three previous, unrelated cases in which it was alleged the same conflict occurred," according to the opinion.

The Superior Court concluded that the evidentiary determinations did not affect the verdict and were not prejudicial to the defendants. Thus, DiNubile did not abuse his discretion.

In 2000, the jury in the first Miller trial found Ginsberg was negligent but this negligence was not a substantial factor in causing Miller's injuries. The Superior Court reversed the first verdict due to the trial judge's "prejudicial criticism" of Lewis and his "extensive interruptions" of her examination of witnesses, according to the opinion.

The trial judge then was not DiNubile but Judge Richard B. Klein, who now sits on the Superior Court.

In January 2004, the second trial ended with a hung jury. The third trial, which was at issue in this appeal, was held the following month.

(Copies of the 12 page opinion in Miller v. Ginsberg, PICS No. 05-0569, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order).