Green v. Tr. of the Univ. of Pa.
| Decision Date | 19 October 2021 |
| Docket Number | No. 2160 EDA 2020,2160 EDA 2020 |
| Citation | 265 A.3d 703 |
| Parties | Tameka GREEN v. The TRUSTEE OF the UNIVERSITY OF PENNSYLVANIA d/b/a Penn Medicine and Penn Presbyterian Medical Center, Leonard E. Rosenfeld & Associates D/b/a Rosenfeld and Maron Medical Associates, and Dr. Leonard Rosenfeld, D.O. Appeal of: Jared A. Jacobson, Esq. |
| Court | Pennsylvania Superior Court |
Christopher A. Iacono, Philadelphia, for appellant.
Alexander M. Owens, Philadelphia, for appellant.
Philip B. Hart, Pittsburgh, for appellant.
Paul E. Peel, Plymouth Meeting, for appellee.
Marie C. Plyter-Eigner, Plymouth Meeting, for appellee.
Daniel F. Ryan, Plymouth Meeting, for appellee.
Michael O. Pitt, Plymouth Meeting, for appellee.
Jared A. Jacobson, Narbeth, participating party.
Franklin J. Rooks, Jr., Marlton, NJ, participating party.
Jared A. Jacobson, Esquire appeals from the September 25, 2020 order imposing monetary and injunctive sanctions against him pursuant to Pa.R.C.P. 1042.9, for violation of the certificate of merit requirement in professional liability actions set forth in Pa.R.C.P. 1042.3(a). After careful review, we vacate the order and remand.
The following is a cautionary tale for attorneys who venture outside their area of expertise into unfamiliar specialized areas of litigation without educating themselves on the applicable rules and law. On July 14, 2017, Attorney Jacobson filed a complaint on behalf of Tameka Green sounding in both medical malpractice and intentional torts. Ms. Green alleged that Leonard Rosenfeld, D.O., an internist referred to her by employees or agents of the Trustee of the University of Pennsylvania d/b/a Penn Medicine and Penn Presbyterian Medical Center ("Penn Medicine"), hypnotized and sexually assaulted her. Ms. Green's claims against Dr. Rosenfeld and his professional corporation (collectively "Dr. Rosenfeld") sounded in medical negligence and lack of informed consent (the "medical malpractice claims"), and battery and intentional infliction of emotional distress (the "intentional tort claims"). Negligence claims against Penn Medicine were based upon theories of respondeat superior and ostensible agency.
Mr. Jacobson appended to the complaint one certificate of merit certifying that an appropriately licensed professional had supplied a written statement to him that there was "a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm." Certificate of Merit (quoting Pa.R.C.P. 1042.3(a)(1) ). Dr. Rosenfeld and Penn Medicine moved to strike the certificate of merit on the ground that Pa.R.C.P. 1042.3 requires that a separate certificate be filed as to each defendant. Consequently, the trial court granted Mr. Jacobson leave to file the required certificates of merit.
Shortly after the close of the pleadings and discovery, Dr. Rosenfeld filed a motion for summary judgment alleging that without expert standard of care testimony, Ms. Green could not make out a prima facie medical malpractice case. Penn Medicine also moved for summary judgment echoing that the lack of expert testimony was fatal. Additionally, Penn Medicine decried the lack of proof of ostensible agency and argued that there was no recognized cause of action for negligent referral and no vicarious liability for intentional torts committed by Dr. Rosenfeld as a matter of law.
On October 3, 2019, the trial court granted Penn Medicine's motion for summary judgment, dismissing all claims with prejudice, but denied Dr. Rosenfeld's motion after concluding that there were genuine issues of material fact. At that time, the trial court outlined three options available to Ms. Green and advised counsel for Ms. Green to choose whether she would proceed on the medical malpractice claims, which required an expert report, or litigate the battery claim, or pursue the intentional infliction of emotional distress claim, neither of which required an expert report.1 See Order, 10/16/19, at 1. By correspondence dated November 18, 2019, Mr. Jacobson advised the court that Ms. Green would pursue the medical malpractice claims, thus abandoning the intentional tort claims. In response, the trial court ordered Ms. Green to present a proper expert report to opposing counsel and the court by January 12, 2020, a deadline that was later extended.
Ms. Green subsequently produced the expert report of David L. Fink, a psychiatrist. Dr. Fink opined, with a reasonable degree of medical certainty, that Dr. Rosenfeld's treatment fell below the standard of care when he decided to use relaxation techniques, and further, when he failed to obtain Ms. Green's informed consent before utilizing the techniques. Nonetheless, on March 5, 2020, Dr. Rosenfeld filed a second motion for summary judgment alleging that the standard of care opinion of a psychiatrist was inadmissible against a specialist in internal medicine, and hence, Ms. Green could not, as a matter of law, meet her evidentiary burden.
Instead of filing a response styled as a response in opposition to summary judgment, Mr. Jacobson filed a motion for extraordinary relief in which he alleged that Dr. Rosenfeld's conduct was within the knowledge of a layperson and no expert testimony was required. He also sought an extension of time and the opportunity to retain an expert in internal medicine. The trial court denied the motion and granted Dr. Rosenfeld's motion for summary judgment as "unopposed" on June 8, 2020. Ms. Green filed a motion for reconsideration, which the trial court denied. No appeal was taken from the order granting summary judgment. Hence, the underlying litigation was concluded.
On June 15, 2020, attorneys for Dr. Rosenfeld sent a request pursuant to Pa.R.C.P. 1042.9 to Attorney Jacobson for the written statement from a licensed professional upon which he relied in filing the certificate of merit against Dr. Rosenfeld.2 Mr. Jacobson did not respond. Consequently, Dr. Rosenfeld filed a motion for sanctions. See Pa.R.C.P. 1042.9(b) (). Attorney Jacobson did not file a response to the motion for sanctions. Hence, the trial court treated the motion as "unopposed," granted it, and imposed all the sanctions requested by Dr. Rosenfeld, inter alia, $84,459.29 in attorney fees and costs associated with defending the lawsuit and injunctive relief. See Order, 9/25/20.
On October 19, 2020, Attorney Jacobson filed a motion for reconsideration asking the trial court to vacate and reconsider its order imposing sanctions. In that filing, Mr. Jacobson offered the following explanation for his failure to file a timely response in opposition to the sanctions motion. He averred that he was unaware that the motion for sanctions had been filed until after it had been granted. He explained that his former administrative assistant had devised a system that automatically directed electronic notices of court filings to individual email folders for each case. When his administrative assistant worked for him, she monitored all emails and brought them to his attention. However, his assistant had left his employ and Mr. Jacobson acknowledged that he had difficulty navigating the system in the pandemic, along with a busy law practice and three children. Consequently, he did not consistently review every email folder. As more than thirty days had elapsed since the conclusion of Ms. Green's case when the motion for sanctions was filed, Mr. Jacobson did not review the email folder for this case and, hence, was unaware of the motion for sanctions.
Attorney Jacobson also appended to the motion his proposed response in opposition to the motion for sanctions. See Motion for Reconsideration, 10/19/20, at Exhibit F. He averred therein that any alleged violation of the certificate of merit requirement was not willful on his part. Furthermore, while he could not locate a written statement from the medical professional he consulted, he offered an affidavit from that physician attesting that she had orally advised him that Dr. Rosenfeld's conduct fell outside the standard of care for an internist. Moreover, since Mr. Jacobson also pled intentional tort claims on Ms. Green's behalf for which no certificate of merit was required, he maintained that not all attorney fees and costs incurred by counsel for Dr. Rosenfeld were causally related to the certificate of merit. Mr. Jacobson argued that the trial court should not have imposed fees incurred before the intentional tort claims were abandoned. In addition, Mr. Jacobson argued that Dr. Rosenfeld failed to establish that any increase in his insurance premiums was due solely to the filing of the malpractice claims, not to the filing of the lawsuit itself, which included viable intentional tort claims. Absent such proof, Mr. Jacobson maintained that the increased premium had no causal nexus to the certificate of merit. Finally, Mr. Jacobson contended that the sanction ordering him to contact various media outlets, advise them that his client's lawsuit lacked merit, and request that they remove articles about the lawsuit from their websites was violative of his First Amendment right to free speech and his duty of loyalty to his client.
Dr. Rosenfeld filed a response to the motion for reconsideration. He maintained, inter alia , that since the medical malpractice claims were pursued from the inception of the case, he was entitled to sanctions in the form of attorney fees, costs, and expenses from the commencement of the litigation. He also argued that the injunctive relief directing Mr. Jacobson and Ms. Green "to notify all publications of...
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