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Legal Malpractice for a Lawyer’s Late Filing of a Minor’s Medical Malpractice Case

CATEGORIES: Misdiagnosis Emergency Room CASE LOCATION: Federal Court Western District CLASSIFICATION: Substantial Recoveries

The Skinner Case

Ryan Skinner, age 11, lived with his family in a suburb of Richmond Virginia. Ryan hurt his elbow in an organized youth football game and he was taken to Spotsylvania Hospital in Fredericksburg, Virginia. An x-ray of the elbow was misread by the hospital radiologist. Ryan was diagnosed with a sprained elbow when, in fact, the radial head of the elbow was dislocated and a bone was fractured. The Hospital ER physician fitted Ryan for a sling and instructed him to follow up with an orthopedic surgeon in 2 weeks. When Ryan was seen by the doctor in two weeks, he was in severe pain. The x-ray from the hospital was reviewed and the misreading was recognized. Elbow dislocations like Ryan had incurred are easily reduced with an internal fixation (bone manipulation without the need for an incision); however, because of the two week delay, scar tissue and dried blood formed, making a repair very difficult. Ryan underwent six surgeries when his orthopedic surgeon ultimately concluded that Ryan had reached maximum medical improvement. Ryan was left with no supination or pronation of his wrist.

Ryan’s parents were naturally upset over their son’s permanent and very unnecessary injury, so they sought out a medical malpractice lawyer to pursue Ryan’s case against the Hospital radiologist. Ryan’s father located a medical malpractice lawyer in Pittsburgh, Pennsylvania who told him that he could pursue a medical malpractice case in the Virginia state courts from his office in Pittsburgh. That lawyer contact Ryan’s treating orthopedic physicians and obtained reports from them which concluded that the Hospital radiologist committed medical malpractice in misreading Ryan’s original elbow x-ray and that the negligence caused Ryan to undergo 6 otherwise unnecessary surgeries and incur a permanent injury to his wrist.

The rules of venue would have required this medical malpractice lawsuit to be filed in the Virginia state courts. Unbeknownst to the Pittsburgh lawyer, however, the statute of limitations for minors filing a medical malpractice lawsuit in Virginia is two years. The Pittsburgh lawyer believed that Virginia’s statute of limitation for minors was the same as Pennsylvania’s - two years from whenever the minor reaches age 18. As a result of this mistaken belief, the Pittsburgh lawyer failed to file Ryan’s medical malpractice case against the Virginia hospital within two years from the negligence. A Virginia Court dismissed the late filing.

Ryan’s parents believed that Ryan had now become a victim of legal malpractice, and so they retained Harry S. Cohen & Associates to pursue the legal malpractice case against the Pittsburgh lawyer who had previously represented Ryan.

In a legal malpractice case, plaintiff has the burden of proving not only the defendant lawyer’s negligence, but also the underlying third party’s negligence. So in this case, we had to prove that the defendant who failed to meet the statute of limitations was negligent and we also had to prove that the hospital radiologist was negligent. This is called proving a “case within the case.”

On behalf of Ryan, we filed suit against the Pittsburgh lawyer. That lawyer admitted his negligence; however, his lawyers fought the issue of the hospital radiologist’s negligence and also asserted that Ryan would have needed the six surgeries due to the severity of the initial elbow dislocations. We traveled to Virginia and took the depositions of the orthopedic surgeons who had treated Ryan and who had provided the negligence and causation opinions originally for Ryan’s lawyer. As is a defendant’s right, the defendant had Ryan examined by a Pittsburgh orthopedic surgeon and that Dr. became the defense expert. He authored an opinion that said Ryan would have been injured even if his original elbow dislocations was immediately diagnosed.

The legal malpractice case was filed in the Western District of the federal court. Typically, medical malpractice cases are filed in state court; however, because the parties in this case were residents of different states, the legal concept of “diversity” required this case to be filed in federal court.

Throughout the two-year pendency of this case, including a court ordered mediation, the defendant lawyer’s insurance company offered only a small settlement amount. Two days before jury selection, the defendant lawyer’s insurance company offered close to a seven-figure settlement in the parties therefore settled without the necessity of a trial.

The proceeds of Ryan’s settlement, according to the Rules of Court, were placed into a restricted bank account so that there could be no withdrawals until Ryan reached the age of majority.