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A Pennsylvania appeals court has reinstated a legal malpractice suit against a midstate attorney and his former firm over a more than $700,000 personal injury verdict that was later lost on appeal.

The state Superior Court on Monday reversed a Dauphin County Court of Common Pleas judge's decision to toss the legal malpractice lawsuit Garman v. Angino on summary judgment. The appellate court's 2-1 holding reinstates claims against Richard Angino and his former firm Angino and Rovner.

Judge Mary Jane Bowes wrote the majority opinion and was joined by Judge Judith Olson. Judge Victor Stabile dissented.

According to Bowes, the case presents an "unusual" set of facts involving two lawsuits that were filed several years apart, each raising claims related to a 1993 cesarean section that plaintiff Kelly Garman underwent. Both lawsuits also resulted in plaintiffs verdicts, but the second one was later dismissed on appeal for being brought outside the statute of limitations.

After the plaintiffs filed their legal malpractice suit, the Dauphin County court eventually determined that, despite the favorable verdicts at trial, the second lawsuit would have been further barred by collateral estoppel, res judicata and the one-satisfaction rule, and so without a viable lawsuit, the legal malpractice claims against Angino and his former firm should have failed as well.

Bowes, however, said that while two suits may have stemmed from the same procedure and involved the same doctor, they involved two different sponges that were discovered years apart. Finding that the Garmans still could have sued the doctor if the claims had been brought in time, Bowes determined the legal malpractice claims should be able to proceed.

"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," Bowes said. "Indeed, such injuries and damages were unforeseeable and speculative."

According to Bowes, Angino and his former firm represented Garman in both lawsuits stemming from the 1993 procedure. The first suit was brought against Dr. Sohael Raschid and Chambersburg Hospital, after a 1997 procedure to remove what was thought to be a painful fibroid discovered that a sponge had been left in Garman's abdomen. The case resulted in a verdict of more than $521,000.

Garman underwent another cesarean section in 1999, and again began experiencing abdominal pain afterward, Bowes said. A 2006 CT scan showed another foreign body in her abdomen, which turned out to be another sponge.

Angino and his firm sued several doctors involved in the 1999 and 1997 procedures, as well as Raschid and Chambersburg Hospital, who were involved in the 1997 removal procedure. They argued the defendants either negligently left the sponge in during those procedures, or failed to timely discover and remove it. Bowes said that during discovery more than three years after the second sponge was discovered, an expert opined that Raschid may have left that sponge in her as well during the 1993 surgery. The trial court allowed Angino and his firm to amend the complaint with additional claims against Raschid and Chambersburg Hospital, alleging additional negligence in connection with the 1993 procedure.

The second suit came to a $735,000 verdict, with 65% liability against Chambersburg Hospital and 35% against Raschid. The jury further determined the sponge had been placed there during the 1993 surgery. The Superior Court, however, vacated the award on appeal, finding the court erred when it allowed the plaintiffs to amend their complaint outside the statute of limitations.

The Garmans subsequently filed their medical malpractice action against Angino and his former firm, contending that they would still have the $735,000 verdict if the claims had been brought in time. In challenging the malpractice suit, Angino and his firm contended that the Garmans still would not have had a second case over the 1993 procedure, given that there had already been a trial adjudicating those claims.

Although the Dauphin County court agreed with the attorneys' argument, Bowes said that, among other things, the fact that the second sponge wasn't even found by the time that jury was deliberating showed that the first jury was contemplating entirely different damages.

"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," she said. "The injuries and damages resulting from the second sponge are separate and severable."

Neither Clifford Haines of Haines & Associates, who represents the Garmans, nor Louis Isaacsohn of Wilson, Elser, Moskowitz, Edelman & Dicker, who represents Angino and his former firm, returned a call seeking comment.