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Garman v. Angino, 2020 Pa. Super. LEXIS 256 (March 30, 2020) (Bowes, J.)  Kent and Kelly Garman appealed from the May 30, 2018 order granting summary judgment in favor of Appellees Richard Angino, Esquire, (“Angino”) and the law firm of Angino and Rovner (the “Law Firm“), and dismissing their complaint in this legal malpractice action. We conclude that the trial court erred in holding that res judicata, collateral estoppel, and the one recovery rule would have foreclosed the Garmans from recovering their verdict in the underlying medical malpractice action. Hence, we vacate the judgment and remand for further proceedings.

The following facts are pertinent to our review. Angino and the Law Firm represented the Garmans in two medical malpractice actions. The first action (“Garman I”) involved a claim for injuries sustained by Mrs. Garman when a sponge was left behind during her 1993 cesarean section (“C-section”) performed by Sohael Raschid, M.D. at Chambersburg Hospital. Following the surgery, Mrs. Garman experienced abdominal pain that her doctors attributed to a uterine fibroid. During a myomectomy on September 18, 1997, a surgical procedure to remove the fibroid, the sponge was discovered in her left lower abdomen. An abscess had formed around the sponge.

The Garmans, represented by Angino and the Law Firm, filed a medical malpractice action against Raschid and Chambersburg Hospital for their negligence in  leaving behind the surgical sponge. A jury found in favor of the Garmans and awarded $521,588.68 in damages.

Mrs. Garman underwent another C-section on June 27, 1999. Again, she experienced abdominal pain after the surgery. A CT scan in 2006 revealed a retained foreign body in her abdomen. Mrs. Garman underwent surgery on May 23, 2006, to remove that foreign body, which was determined to be a second surgical sponge. The sponge was located in her right upper abdomen and it had adhered to her bowel. In order to remove it, surgeons had to perform a bowel resection.

On October 10, 2007, Angino and the Law Firm filed a complaint on behalf of the Garmans (“Garman II“) against the physicians and hospital involved in the 1997 myometomy when the first sponge was removed, namely Dr. Heine, Raschid, and Chambersburg Hospital, and the parties involved in the 1999 C-section, Ellen Tourtelot, M.D. and the Milton S. Hershey Medical Center. They alleged that either the defendants negligently left the second sponge during the 1997 or 1999 surgeries, or they were negligent in failing to timely discover and remove it. During the course of discovery, an expert retained by the Garmans opined that the source of the second retained sponge was the first surgery performed by Raschid in 1993. The Garmans sought permission to amend their complaint more than three years after the discovery of the second sponge to add allegations that the Garman I defendants Raschid and Chambersburg Hospital were negligent in leaving behind this second sponge. Despite an objection by these defendants that the amendment was barred by the statute of limitations, the trial court granted leave to amend.

Garman II proceeded to a jury trial on March 9, 2010. The jury returned a verdict in favor of the Garmans, and against Chambersburg Hospital and Raschid, allocating sixty-five percent of the negligence to the Hospital and thirty-five percent to Raschid. The jury found no negligence on the part of the other defendants. In addition, the jury determined that the Garmans “did not know [and] could not have known by the exercise of reasonable diligence prior to December 28, 2007, that the sponge removed from Mrs. Garman’s body on May 23, 2006 was placed there during the 1993, 1997 or 1999 surgery.” The jury awarded damages of $735,000.

The trial court denied Raschid and Chambersburg Hospital’s motion for judgment notwithstanding the verdict, and added delay damages to the award. Raschid and Chambersburg Hospital timely appealed to this Court arguing, inter alia, that claims related to the 1993 surgery were barred by the statute of limitations. We agreed, finding that the trial court erred in permitting the amended complaint, which added a new cause of action for negligence arising from the 1993 surgery, after the expiration of the statute of limitations. Thus, we vacated the judgment and dismissed all claims related to the 1993 surgery, but affirmed the judgment with respect to the jury’s findings of no negligence on the part of the other defendants with regard to the 1997 and 1999 surgeries. Garman v. Heine, 32 A.3d 825 (Pa.Super. 2011) (unpublished memorandum at 13), appeal granted616 Pa. 591, 52 A.3d 223 (Pa. 2012)dismissed as improvidently granted 620 Pa. 48, 65 A.3d 912 (Pa. 2013).

The Garmans initiated the instant legal malpractice action against Angino and the Law Firm. They maintained that the negligence of Angino and the Law Firm in failing to timely seek amendment of the Garman II complaint to assert negligence claims against Raschid and Chambersburg Hospital for their negligence during the 1993 C-section resulted in the loss of their $700,000 verdict. Following the close of the pleadings, Angino and the Law Firm moved for summary judgment based on the statute of limitations, res judicata, collateral estoppel, and the one satisfaction rule. The trial court denied the motion with regard to the statute of limitations, finding that “genuine issues of material fact exist with regard to the applicability of the equitable discovery rule.” However, prior to trial, the trial court granted summary judgment in favor of Angino and the Law Firm based on the other three affirmative defenses. (Holding “[t]he one satisfaction rule and the doctrines of res judicata and collateral estoppel apply to render the judgment in Garman II uncollectible”).

We hold that the cause of action arising in 2006 upon discovery of a retained surgical sponge of unknown origin in Mrs. Garman’s upper right abdominal quadrant was distinct from the cause of action that arose in 1997 for damages related to the sponge in her left lower abdomen. The “thing sued for,” defined by our sister court as the thing in dispute or the matter presented for consideration, was not identical. See McCarthysupra at 820Garman I was a suit involving a residual sponge in the left lower quadrant of Mrs. Garman’s abdomen following the C-section surgery in 1993; Garman II involved a sponge discovered in the upper right quadrant of Mrs. Garman’s abdomen in 2006, the origin of which could have been either the 1993, 1997, or 1999 surgeries. Although res judicata bars subsequent claims that could have been litigated in the prior action, but which were not, it is beyond cavil that a claim for injuries caused by a retained surgical sponge discovered in 2006 could not have been litigated almost a decade earlier in Garman I.

We find that the Garmans were compensated in Garman I for the injuries and damages, past and future, proximately caused by the negligently retained sponge discovered in 1997. We do not believe the Garman I jury could have contemplated a separate, yet-to-be-discovered sponge and attendant bowel injury when it fashioned its damage award for future pain and suffering. Indeed, such injuries and damages were unforeseeable and speculative. The payment of the judgment in Garman I represented satisfaction for the injury and damages attributed only to the first sponge, including any future injuries or damages flowing from the negligent retention of that sponge.

The injuries and damages resulting from the second sponge are separate and severable. The trial court in Garman II acknowledged that, and correctly instructed the jury to award damages limited solely to the second sponge discovered in 2006.  (Confirmation by the court that it instructed the jury that the Garmans had been previously compensated for the first retained sponge and that any damages should relate only to the harm caused by the second retained sponge).

For these reasons, we find that Angino and the Law Firm failed to establish that collateral estoppel, res judicata, and the one satisfaction rule were alternative legal theories upon which the Garmans would have been barred from recovering their verdict in Garman II. Hence, the trial court’s grant of summary judgment in favor of Angino and the Law Firm, based on its finding that their negligence was not, as a matter of law, the proximate cause of the Garmans’ loss, is legally incorrect. Summary judgment was improperly entered.