Atty. Gabor Ovari

• Gabor focuses his practice on the defense of hospitals, health care systems and medical providers in medical malpractice and health care liability matters
• He has second chaired multiple jury trials, and has experience in all aspects of litigation
• Gabor is involved in cases from inception until resolution, conducting discovery, preparing witnesses, taking and defending depositions, evaluating and selecting experts, and preparing for trial
• He has also first and second chaired several binding arbitrations, resulting in favorable outcomes for his clients
• With a focus on collaboration, Gabor works closely with each client to develop a defense strategy tailored to the individual case and desired result
• He draws from his background in defending workers' compensation matters, having conducted hundreds of medical depositions and evaluated claims based on the opinions of medical experts and the analysis of medical/treatment records
• Gabor received his juris doctor from Widener University Commonwealth Law School, where he was elected as a member of the Law Review's Administrative Board and completed an intensive trial advocacy program
• Upon graduation, Gabor received the James S. Bowman American Inn of Courts Award, which is awarded to a student excelling in administrative law
• During undergrad at Temple University, Gabor was the recipient of the Professor Edward R. and Essie Baron Memorial Award, which is given to an outstanding student majoring in history, theater, music or art
• Classes/Seminars Taught •Calculated Change in Strategy: Hospital as the Solo Defendant, Marshall Dennehey Trends in Health Care and Health Law Seminar, May 9, 2024 •Commonwealth of Pennsylvania Workers' Compensation Seminar, Commonwealth of Pennsylvania, 2016 and 2017 Published Works •'Pennsylvania Imaging Center v

Commonwealth

• The Supreme Court of Pennsylvania 'Trips' Over the Fine Line between Sales and Use Tax in Cases of Property Affixed to Real Estate,' 2013 Annual Survey of Pennsylvania Administrative Law - 22 Widener L.J. 321 (2013) Results Defense Verdict Secured in Chester County Medical Malpractice Case We obtained a defense verdict after a week-long jury trial in the Chester County Court of Common Pleas in a medical malpractice case
• The plaintiff alleged she sustained a bowel perforation injury in the course of a robotic-laparoscopic hysterectomy
• During the course of the procedure, a general surgeon was called in to evaluate the bowels for injuries
• There were no injuries found, so the procedure was completed, and the patient was discharged the following day
• Two days later, the patient returned in critically ill condition, and a bowel perforation in the sigmoid colon was identified
• The plaintiff alleged the health care providers negligently failed to detect the injury during the hysterectomy
• After the trial, the jury returned a verdict in favor of all defendants
• Plaintiff’s Claims Barred by Statute of Limitations and Immunity Provisions of the Pennsylvania Mental Health Procedures Act The defense prevailed on preliminary objections in Philadelphia County as the court found that the case involved a medical malpractice action involving the plaintiff’s allegations of an alleged assault by three patients while the plaintiff was a patient at a behavioral health hospital
• In the complaint, the plaintiff pleaded ordinary negligence
• Preliminary objections in the nature of a demurrer were filed by the defendant, raising immunity under the Pennsylvania Mental Health Procedures Act since there was no claim of gross negligence
• After the preliminary objections were filed, the plaintiff attempted to cure the defect in the original pleading by filing an amended complaint, which added allegations of gross negligence and additional facts, in an attempt to support the claim of gross negligence
• We again filed preliminary objections, arguing that the allegation of gross negligence was a new cause of action that was now barred by the statute of limitations
• Since the amended complaint was filed more than two years after the event at issue and raised a new claim, the applicable two-year statute of limitations barred the claim
• We also argued that the amended complaint failed to provide any factual support for gross negligence or willful misconduct and, therefore, the hospital was immune from suit
• Plaintiff’s counsel did not file a response in opposition
• The Philadelphia Court of Common Pleas agreed that the new claim was barred by the statute of limitations and the immunity provisions of the Mental Health Procedures Act, and dismissed the case with prejudice
• Thought Leadership Defense Digest Multiple Entities, But One Claim - The Issue of Corporate Negligence September 1, 2024 Key Points: Courts have wrestled with the issue of what types of entities may be liable under theory of corporate liability pursuant to Thompson v
• Nason Hosp., 591 A.2d 703 (Pa. 1991).In Newlin v
• Vita Healthcare Group, et al., the Delaware County Court of Common Pleas decided whether multiple entities may all be liable under a theory of corporate negligence, and whether the liability of multiple entities may be a basis to reduce a corporate liability award.Corporate liability is a frequently pursued claim in the medical malpractice arena in Pennsylvania
• It is used by plaintiffs because it gives them another mechanism to get a “deep pocket” involved in their case
• Under this theory, plaintiffs can claim that a hospital itself was directly negligent
• Pennsylvania courts have adopted this doctrine as a theory of hospital liability
• Corporate negligence provides that the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety at the hospital
• Thompson v
• Nason Hosp., 591 A.2d 703, 707 (Pa. 1991).The Thompson case was the first to outline this theory, which creates a non-delegable duty that the hospital owes directly to a patient
• It was a major departure from previous jurisprudence because a patient could directly pursue the hospital itself, rather than trying to tie the hospital to liability through the traditional theory of respondeat superior and vicarious liability
• The Superior Court of Pennsylvania established that a hospital has a duty to (1) use reasonable care in the maintenance of safe and adequate facilities and equipment
• (2) select and retain only competent physicians
• (3) oversee all persons who practice medicine within its walls as to patient care
• and (4) formulate, adopt, and enforce adequate rules and policies to ensure quality care for the patients
• For a hospital to be found liable under this theory of liability, the plaintiff must show that the hospital had actual or constructive knowledge of the issue that created the harm
• Further, the hospital’s negligence must have been a substantial factor in bringing about the harm to the injured party
• However, there are limits to liability
• Importantly, courts have wrestled with the issue of what types of entities may be liable under this theory of liability
• Of course, since Thompson, a hospital can certainly be liable under this theory
• Beyond that, the picture is not so clear
• The answer to the question boils down to the similarity of the care provided by that entity compared to care in a hospital setting
• Courts will examine whether an entity is responsible for a patient’s total health care
• For example, nursing homes were found to owe a direct duty because the degree of involvement in the care of patients in skilled nursing home facilities is markedly similar to that of a hospital and, thus, subject to corporate liability
• See Scampone v
• Highland Park Care Ctr., LLC, 57 A.3d 582, 584 (Pa. 2012).But what happens when there are multiple entities named as defendants?
• Can they all be liable under a theory of corporate negligence?
• Can this be a basis for an argument to reduce an award?
• These issues were addressed by the Delaware County Court of Common Pleas in a recent case
• In Newlin v
• Vita Healthcare Group, et al., the Court of Common Pleas entered an order on December 20, 2023, that reduced a $19 million verdict against four defendant entities
• Two entities were operators of a skilled nursing facility and two other entities were providers of management services
• The plaintiffs in Newlin alleged that a nursing home resident fell at the facility and sustained a hip fracture and subsequently developed pressure ulcers, leading to her death
• The case involved multiple theories of recovery and also included a claim for punitive damages
• At the conclusion of the trial, the jury returned a verdict for the plaintiff
• The jury awarded $4 million in compensatory damages and $15 million in punitive damages, including $7 million against the operators and $8 million against the management entities
• Post-trial motions were filed following the verdict
• As it relates to the concept of corporate negligence, the court analyzed the Supreme Court of Pennsylvania’s decision in Scampone
• There, the Supreme Court stated that a plaintiff could not recover against both a management company and the operator of the facility because only the owner/operator could be liable for corporate negligence
• The owner of the entity could not delegate the legal responsibility under this theory of liability to another corporate entity
• The duty under corporate liability is a non-delegable duty, and the owner of the facility cannot pass this responsibility to someone else
• This is different from vicarious liability, under which both entities could be found liable
• Accordingly, the court held that, because the non-delegable duty of care under corporate liability lies with the licensed operator only, a plaintiff cannot recover against both the licensed operator of a skilled nursing facility and a management company as well
• Because the court found that only the owner/operator of the facility could be liable under corporate negligence, it vacated the punitive damages awards against the management entity
• Scampone is significant because it illustrates how corporate negligence has evolved in the Commonwealth
• It also illustrates that just because plaintiffs name multiple corporate entity defendants in a case does not mean that, suddenly, the value of the case has increased
• Corporate liability involves a non-delegable duty, and courts will not find multiple entities liable under it
• This issue should be addressed early on in each case where corporate negligence has been pled
• Preliminary objections should be used to highlight the issue at an early stage of the litigation, and if those are not successful, it is a good idea to revisit this with a motion for summary judgement or even with motions in limine
• The Newlin case demonstrates that it is absolutely vital to outline the nature of various entities during the course of litigation in order to ensure that the court can distinguish between the roles of various defendant entities in order to preclude excessive recovery
• Gabor is an associate in our King of Prussia, Pennsylvania, office
• Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers
• This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship
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• Case Law Alerts Where there is much uncertainty about the facts, the issue of discovering the injury could not be determined as a matter of law by the court
• October 1, 2022 This is a medical malpractice matter that involved the issue of whether the statute of limitations was tolled by the discovery rule.The plaintiff alleged that she was misdiagnosed with sarcoidosis and the misdiagnosis delayed her cancer diagnosis and limited her treatment options
• The defendants filed a motion for summary judgment on the basis that the claims were barred by the statute of limitations
• The motion was initially denied but was subsequently granted upon motion for reconsideration
• The plaintiff appealed
• Upon appeal, the Superior Court of Pennsylvania disagreed with the trial court
• The court explained that the medical records, and the patient’s own history, were unclear as to what diagnoses she was given and exactly what was communicated to her
• Therefore, the court noted that where there is much uncertainty about what the facts were, the issue of discovering the injury could not be determined as a matter of law by the court
• A genuine issue of material fact existed as to when the patient, through the exercise of due diligence, knew or should have known that she had been diagnosed with sarcoidosis
• Case Law Alerts, 4th Quarter, October 2022 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers
• This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship
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