UPMC Drops Suit Against Pittsburgh Attorney Michael O'Day

By Dan Packel Law360,

Philadelphia (December 13, 2017, 5:31 PM EST) -- The University of Pittsburgh Medical Center on Monday dropped a state court lawsuit accusing a Pittsburgh attorney of engaging in an unethical plan to “bring the health system down” by stoking fear among prospective patients. UPMC had contended that attorney Michael O’Day conspired with a client to bring in additional plaintiffs in potential litigation against Dr. Ghassan Bejjani, a neurosurgeon with the hospital, over procedures to treat a malformation in which brain tissue extends into the spinal canal.

O’Day declined to comment on whether he still intended to bring lawsuits against UPMC over the procedures. “I am pleased and, more importantly, my clients are pleased that this unfortunate and ill-founded lawsuit has been voluntarily dismissed by UPMC,” he told Law360.

Before discontinuing the suit with prejudice, UPMC had scored an early win, overcoming O’Day’s preliminary objections. O’Day appealed to the Pennsylvania Superior Court in November. UPMC’s complaint alleged that O’Day, in a bid to skirt ethics rules barring direct client solicitation, recruited a former Bejjani patient to solicit others to join the potential lawsuit.

The patient, identified in UPMC’s complaint as Jane Doe, allegedly used Facebook to contact another individual treated by Bejjani for a condition known as Chiari Malformation and tried to pressure her and her daughter into becoming plaintiffs in the case.

The condition involves a structural defect in the cerebellum and causes medical problems including persistent headaches, dizziness, numbness and diminished mental acuity and concentration. According to court documents, Bejjani specializes in decompressive surgery that aims to improve fluid circulation through the affected area.

The tactics employed by Jane Doe included statements falsely indicating that Bejjani’s patients may have suffered injuries as a result of the procedure, UPMC’s complaint said. The health care giant said that O’Day’s plan was a calculated bid to, in his own words, “bring UPMC down.” O’Day responded to the lawsuit by contending that UPMC sought to usurp the authority of the Pennsylvania Supreme Court, which oversees attorney conduct in the state.

Allegheny County Court of Common Pleas Judge John T. McVay Jr. agreed in June, striking all references to the state’s rules of professional conduct from the lawsuit. UPMC then amended its complaint, focusing on claims that O’Day’s efforts to use his existing client to draw in new clients interfered with the continued relationship that the hospital must have with patients who have received surgeries from Bejjani. Judge McVay then rejected O’Day’s argument that attorneys’ solicitation methods were protected and that UPMC’s lawsuit was an “abusive tactical maneuver,” prompting the appeal.

12/19/2017 UPMC Drops Suit Against Atty Over Client Solicitation - Law360 https://www.law360.com/articles/994588/print?section=commercial contracts 2/2 A spokesman for UPMC and an attorney for the institution both did not respond to requests for comment Wednesday. UPMC is represented by William Pietragallo, James Kraus and John Schwab of Pietragallo Gordon Alfano Bosick & Raspanti LLP. O’Day is represented by Dennis Roman, Charlene Seibert and Timothy Stienstraw of Marshall Dennehey Warner Coleman & Goggin PC. The case is UPMC et al. v. O’Day, case number GD-17-003857, in the Allegheny County Court of Common Pleas. --Editing by Alyssa Miller.

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