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Philadelphia Jury Awards $7 Million in Young Dad's Death


Posted on Nov 14, 2005

$7 Million Awarded in Young Dad's Death Asher Hawkins The Legal Intelligencer 11-14-2005 A Philadelphia jury has returned a $7 million verdict in a medical malpractice case stemming from the 2001 heart attack death of a 39-year-old who was married with a daughter. However, due to the bankruptcy of the key doctor defendants' insurer, the plaintiffs attorney in Fletcher v. Kominsky & Kubacki Medical Associates expects to recover a maximum of roughly $2.4 million, plus delay damages, as a result of the verdict. Daniel Thistle of the Law Offices of Daniel L. Thistle said that after PHICO Insurance Co. went bankrupt, the Pennsylvania Property and Casualty Insurance Guaranty Association declined to provide coverage on the Kominsky & Kubacki claim, saying it had been filed after a deadline PPCIGA set up for the filing PHICO-related claims. The MCARE/CAT Fund also declined excess coverage on the policy Kominsky & Kubacki had originally purchased, Thistle said. The jury's verdict in Fletcher is one of relatively few multi-million-dollar awards returned by a Philadelphia panel this year. As of the end of August, Philadelphia juries had arrived at nine verdicts involving awards for more than $1 million and three for more than $4 million, according to The Legal Intelligencer's analysis of Philadelphia Common Pleas data. In comparison, 2003 saw 12 $4 million-plus jury awards, while there were 16 in 2004. According to court papers, Timothy Fletcher first sought treatment at the practice of Solomon Kominsky and Thomas Kubacki in 1991. The primary focus of that treatment was problems stemming from his morbid obesity. Fletcher's widow asserted in court papers that during the 10 years he was treated by doctors employed by the practice group, a number of warnings that he had diabetes and cardiovascular disease were ignored. Johanna Fletcher ultimately filed suit against the estates of Kominsky and Kubacki (who were dead by that time). Also named as defendants were Frankford Hospital, where Fletcher had been treated shortly before his death, and William Simon, a doctor with a temporary contract with Kominsky & Kubacki, who, according to Thistle, treated Fletcher several times toward the end of his decade-long relationship with the practice group. From 1991 until 2001, Thistle said, Fletcher was treated primarily by Kominsky or Kubacki. Early into the litigation, Frankford Hospital was let out of the case by stipulation, Thistle said. Earlier this year, and prior to trial, Simon settled with Johanna Fletcher. Thistle and Simon's attorney -- J. Scott Kramer of Duane Morris -- refused to comment on the settlement amount. However, court records show that the settlement with Simon was for $300,000. The matter proceeded to trial against the Kominsky & Kubacki practice group and the estates of those two deceased physicians. The defendants were unrepresented at trial, Thistle said. The trial took place over the course of one day on Nov. 4 before Judge Patricia A. McInerney, Thistle said. The plaintiffs' case consisted of testimony from Johanna Fletcher, her and Timothy's daughter Victoria, and an economic damages expert. After roughly 45 minutes of deliberations, he said, the eight-person jury returned with its unanimous verdict, which included $3 million for wrongful death and $4 million for survival. Thistle said he expects to file for delay damages totaling roughly $728,000. Thistle said the first step to recovering money for his clients as a result of the verdict will be to file a new action against PPCIGA and the MCARE/CAT Fund. Kominsky and Kubacki both had "tail coverage" policies with PHICO under which, in the event of death, the insureds' estates would be covered for prior acts of negligence, according to Thistle. He said that based on the policies' limits and the rules concerning claims made on policies of bankrupt insurers, he expects to be able to recover $1 million from PPCIGA and $1.4 million from the MCARE/CAT Fund, plus delay damages. He said he believes he has a particularly strong case against PPCIGA, as the Superior Court ruled in its September decision in Universal Health Systems Inc. v. PPCIGA that PPCIGA was obligated to cover a PHICO-related claim filed after the PPCIGA deadline. "It should be open-and-shut as far as I'm concerned," Thistle said. In the meantime, the $300,000 settlement with original defendant Simon was recently approved by Administrative Judge Joseph D. O'Keefe of the Philadelphia Orphans' Court, court records show. That settlement includes $150,000 for the wrongful death claim and $150,000 for the survival claim. Roughly $109,000 of that money was allocated to Thistle for costs and fees; about $111,000 went directly to Johanna Fletcher; and Victoria Fletcher will receive just under $22,500 for four years beginning on her 18th birthday in September 2008. Simon's attorney Kramer, who worked on the case with associate Dana Ash, stressed that his client was not found by a jury to have committed any negligence in his treatment of Fletcher.

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