Philadelphia Personal Injury Attorney Blog | Pomerantz Perlberger & Lewis LLP

In 2003, a Wisconsin man filed a medical malpractice claim against his doctors and the clinic that employed them for failing to diagnose a cancer that ended up killing him. When he died, his wife filed an amended complaint on behalf of his estate, changing the complaint to include wrongful death, and in that complaint, her lawyer explicitly named the insurance company, Physicians Insurance Company (PIC), and delivered the complaint in person to the vice president of claims for the company, demanding a response in writing within 45 days.

The trial proceeded, but the defense lawyer for the doctors and the clinic did not include any mention of the insurance company as a codefendant on responses. The doctors won their case.

PIC, however, did not respond to the complaint until 8 months after it was presented. When it did respond, the wife and her lawyer moved for summary judgment against PIC because it had not made a timely response to the complaint, and a circuit court judge awarded them the full amount of their complaint, $801,760. PIC appealed the judgment, saying it should be not found in default because its absence from any and all documents was the result of a clerical error. Instead, the appeals court found that the reason for the personal delivery of the complaint to PIC was due to the defense lawyer's reluctance to accept the complaint on behalf of PIC, which meant that the omission of PIC's name from defense documents was not simply a clerical error. The appeals court affirmed the circuit court's judgment.

In appealing to the Wisconsin Supreme Court, PIC admitted it was in default, but said that its liability was limited to that of its insureds, and since they won their case, its liability should be limited. However, the Supreme Court said that under Wisconsin law (as in many states) the insurance company is directly liable, meaning that the insureds are not necessary parties to any action against the company. PIC also claimed that it should be able to use its insureds' denial of negligence as a shield, but the Supreme Court decided that PIC's failure to respond in a timely fashion exposed it to a judgment by default irrespective of its insureds' denial of negligence. PIC also argued that it should be granted a minor penalty rather than default judgment in the interest of justice, but the Supreme Court said that justice was only served by granting extensions for filing to defendants who had "reasonable grounds for noncompliance with the statutory time period," but PIC had no such reasons. Other arguments which attempted to draw on case law in other states were similarly dismissed by the Supreme Court as being irrelevant because PIC had direct liability instead of vicarious liability.

This case reveals the importance of choosing the right lawyer. Whether a defendant or plaintiff, the right lawyer can find and exploit the law to your best advantage.

If you have suffered as a result of the negligence of a doctor, clinic, or hospital, contact the experienced medical malpractice lawyers at Pomerantz, Perlberger, and Lewis, LLP today for a free initial consultation and case evaluation.