Philadelphia Top Injury Lawyer Blog

Maryland Supreme Court Rules Owners Must Treat All Pit Bulls Like Dangerous Dogs - Tracey v. Solesky

Mon, 14 May 2012 15:44:26 -0500

One type of claim I handle as a Philadelphia injury lawyer is claims for dog bites and dog attacks. While many dogs are wonderful pets and companions, dogs that have been mistreated, trained to attack or allowed to run wild can sometimes yield to their predatory nature and attack human beings. When that happens, the consequences can be severe injury or even death. To make matters worse, the victims of dangerous dog attacks are generally children, thanks in part to children's lack of sophistication and in part to their small size, which makes them more closely resemble prey. The dog owner's insurance company often covers the medical treatment required, but far too often, victims of dog attacks have to sue to recover this money. That's why I was interested to see Tracey v. Solesky, a ruling from the Maryland Supreme Court that makes it easier for victims to sue when the attacking dog was a pit bull.

Dominic Solesky, who was 10 at the time, suffered life-threatening injuries after being attacked by a pit bull named Clifford. Clifford escaped from an open-top pen that the high court called "obviously inadequate," then attacked another boy, was put back in his pen and escaped again before finding Dominic later in the day. Dominic ultimately underwent several surgeries, including to repair a life-threatening rupture in his femoral artery, spent 17 days in the hospital and a year in rehabilitation. The Solesky family ultimately sued Dorothy Tracey, the landlord of the dog's owner, alleging Tracey negligently permitted a dangerous dog on the property. After trial, the trial court granted a verdict for Tracey, finding insufficient evidence of common-law negligence. However, Maryland's Court of Special Appeals reversed, ruling that there was enough evidence that Tracey knew of the dog's dangerousness to submit to the jury.

On appeal, both sides asked the Maryland Supreme Court to decide, among other things, whether pit bulls are an inherently dangerous dog whose breed alone should put landlords (and owners) on notice that the dog is vicious. The high court said yes. In a ruling that caused controversy in the state, the court made landlords with the power to control the premises, as well as owners, strictly liable for attacks by pit bulls and pit bull mixes. This departs from the standard used for other dog breeds in Maryland, which requires evidence that the landlord had actual knowledge that the particular dog is dangerous. The court reviewed pit bull cases from other jurisdictions at length, concluding that pt bulls are more dangerous than other breeds and dismissing arguments that breed-specific rules are overly broad. "Because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries," the court said, "pit bulls and cross-bred pit bulls are inherently dangerous." Three justices dissented, arguing that dangerousness should be a question of fact rather than strict liability, and that the mixed-breed part of the rule is unworkable.

As a Philadelphia accident lawyer, I agree that the Maryland courts will have to work out what standard determines whether a dog is a pit bull. However, I appreciate that the court has given more right of recovery to victims of serious dog attacks, even if that decision is controversial. By making owners of pit bulls, or their landlords, strictly liable for attacks, the court bypassed the "one-bite rule" that some states have, permitting dogs to have an attack essentially for free before their associated humans become legally liable. Here in Pennsylvania, we have a mixed system like Maryland's, but it's not specific to certain breeds. Rather, owners and landlords are strictly liable for medical bills, for serious injuries regardless of the dog's past behavior, or for any injuries if the dog showed signs of viciousness. I encourage victims and their families to contact me or another Philadelphia personal injury lawyer to discuss their legal rights and options.

Connecticut Supreme Court Grants New Trial After Comments on Malpractice Reform by Expert - Pin v. Kramer

Mon, 30 Apr 2012 22:43:12 -0500

As a Philadelphia medical malpractice lawyer, I was interested to see that issues related to Pennsylvania medical malpractice law have become issues in a case that reached the highest court in Connecticut. In Pin v. Kramer et al., the Connecticut Supreme Court ordered a new trial for patient Erik Pin and his mother after an expert for Dr. David Kramer made allegedly improper and inflammatory statements to the jury during testimony. Dr. Todd Albert, the expert witness, is a Philadelphia orthopedic surgeon who testified that Kramer, also an orthopedic surgeon, did not depart from the standard of care when treating Pin. He went on to make the controversial statements, saying he would order more tests than Kramer because Pennsylvania doctors practice "defensive medicine" due to the state's high rate of malpractice lawsuits. The trial court denied a mistrial, but the state Court of Appeals and Supreme Court agreed that the statements were so prejudicial that Pin should have a new trial.

Erik Pin was 11 when he underwent the orthopedic surgery in 2001 to remove a benign tumor on his spine. He and his mother, Carrie Pin, allege that Kramer negligently operated using images of the tumor that were more than nine months old. In so doing, they claim, he burst open the tumor, causing it to resituate itself elsewhere in Erik's spine, threatening him with debilitating spinal pressure. He ultimately underwent two more surgeries, causing unnecessary physical pain, physical limitations, emotional distress, medical bills and risk of future back problems. Among the issues at trial was whether the standard of care required Kramer to order more tests before performing the surgery, or after the surgery to monitor Pin's recovery. On this issue, Albert testified that Kramer need not have ordered more tests, though Albert would have. In answer to a follow-up question, Albert said this was partly because he worked at a teaching hospital, but also partly because Pennsylvania's medical malpractice culture required doctors to order lots of unnecessary tests as part of practicing "defensive medicine." This, he said, was responsible for medical costs rising.

In response, the Pins asked for a mistrial or an instruction reminding the jury that Pennsylvania malpractice issues have no bearing on the case. The judge denied both requests and the jury later came back with a verdict for Kramer. The Pins appealed to the Appellate Court, which found that the statements were inflammatory and prejudicial, and likely influenced the jury's deliberations. It ordered a new trial, and the defendants appealed.

The Connecticut Supreme Court upheld the Appellate Court in a relatively short opinion. In so doing, it adopted the logic of the Appellate Court. That court ruled that the unspoken inference of Albert's statement was that Kramer would only have ordered more tests in order to protect himself from the kind of litigation he now faced. The court said it was hard to imagine jurors would have ignored the implications of the statement after hearing this testimony. The appellate court agreed with the trial court that mentioning insurance is generally prejudicial to the defendants rather than the plaintiffs, but for different reasons than those in play here. In this case, discussing insurance would not convince the jury that Kramer would be personally untouched by their decision, but that doctors are besieged by malpractice claims. "Whether or not the comment has merit in public discourse," said the court, "it had no place in this trial." The appellate court also suggested that a curative jury instruction could have solved the problem without the need for a mistrial. Adopting that opinion, the Supreme Court too called for a new trial.

I applaud this decision. As a Philadelphia medical negligence lawyer, I know all too well that medical malpractice is a very politicized issue. Pennsylvania frequently considers new malpractice laws because politicians like to be able to tell voters they're working on driving down the increasingly burdensome costs of medical care. Unfortunately, this doesn't do much to help the average family, because the cost of medical care is often driven far more by medical insurance and some of the systems that have grown up around it; relatively few doctors face actual malpractice claims. In the meantime, however, typical "malpractice reform" laws serve only to make it more difficult for the true victims to seek fair compensation for their injuries and losses. As a Philadelphia birth injury lawyer, I fight to retain those rights for injured people.

Driver Suspected of Intoxication Runs Down Girl Near South Philadelphia Italian Market

Tue, 17 Apr 2012 18:07:38 -0500

As a Philadelphia injury lawyer, I was saddened to see an article about the death of an 11-year-old girl at the hands of an alleged DUI driver. According to NBC 10, Samantha Nguyen-Ortanez of Sicklerville, NJ, was struck as she walked out of Captain Jesse G's Seafood Market March 25 with her family. Also injured in the crash were her three-year-old stepbrother, her stepmother, a Captain Jesse's employee and a woman in a passing vehicle. Not injured was the driver alleged to be at fault, Max Drosi of Miami, 28. Drosi allegedly was driving under the influence and looking at the GPS of his rental car when he ran a red light and hit an SUV passing through the intersection. Drosi was arrested the same day and charged with DUI; homicide while driving under the influence; four counts of aggravated assault while driving under the influence; and reckless endangerment.

The area is a busy one for pedestrians because it houses south Philly's Italian Market, a tourist draw full of restaurants and shops. Drosi is accused of running a red light at the corner of Washington Avenue and Eighth Street, t-boning an SUV that was legally proceeding through the intersection. The SUV was sent out of control and pushed into the family as it was coming out of Captain Jesse's, then hit the front of the business itself. Samantha was pinned to a wall by the vehicle and died at the scene. Her stepmother and stepbrother, the SUV's driver and a Captain Jesse's employee were all taken to the hospital and listed in stable condition. A Philadelphia police inspector, Joe Sullivan, said Drosi admitted at the scene that he was distracted by looking down at the GPS device. Sullivan emphasized the importance of pulling over when using any electronic device.

As a Philadelphia accident lawyer, I second that advice. I frequently work with people who have suffered very serious losses because of an auto accident, and the accidents are almost always preventable with a little more care. And with the rise of smartphones and GPS devices, electronic devices are now very common distractions for drivers of all ages. Because Drosi's car was a rental car, it would be interesting to investigate whether the rental car company bears any legal responsibility for the distraction. GPS devices are now standard in many rental cars. If the rental car company knew or should have known that the devices are correlated with more accidents, it may be liable for providing them or failing to instruct customers on using them safely. Of course, Drosi is responsible for his own alleged intoxication, and I would also expect any Pennsylvania injury lawsuit to focus on that.

At Rosenbaum & Associates, we have spent more than 25 years helping injured people in eastern Pennsylvania seek justice and financial compensation from the people who hurt them. In that time, we're proud to say we've created a strong record of results for clients who entrusted us with their cases. This includes compensation for an injury or a death in the family and the associated emotional losses, as well as for all economic losses related to the crash, such as loss of income and huge medical bills. Our Philadelphia personal injury lawyers represent victims of all types of accidents, including car, truck, motorcycle and pedestrian crashes; injuries from defective products; slip-and-fall accidents on someone else's property; and injuries in the workplace, including construction sites.

Fifth Circuit Upholds Government's Liability for Failure to Diagnose Cancer - Ellis et al. v. U.S.

Tue, 03 Apr 2012 21:26:52 -0500

As a Pennsylvania medical negligence lawyer, I was interested to see a recent ruling upholding damages for a family that lost someone when her cancer was misdiagnosed. In Ellis et al. v. United States, the husband, children and mother of Melissa Busch sued the federal government for failing to timely follow up on medical problems that ultimately were revealed to be from a form of cancer that eventually killed her. At the beginning of her medical saga, Busch was married to a member of the U.S. military, giving her access to military healthcare in San Antonio. Military doctors recommended a followup but failed to schedule it, and she eventually lost her military benefits when she divorced. A civilian hospital eventually diagnosed a rare cancer, which eventually killed her at age 33. The federal government lost at trial and appealed as to her and the civilian hospital's liability, but the Fifth Circuit upheld liability.

Busch hurt her foot in 1996 while playing with her children and saw doctors at Brooke Army Medical Center. She returned in early 1997, complaining that the injury wasn't healing despite her compliance with her medical instructions. BAMC ruled out a stress fracture and recommended an orthopedic consultation, but an appointment was not available. BAMC told her she would go on a waiting list and receive a call; no such call ever came, though apparently she was scheduled for an appointment 18 months later and not notified. Busch soon divorced her husband and lost access to BAMC. After the foot was reinjured later in 1997, she visited Northeast Methodist, a civilian hospital, which X-rayed her foot and found a "retained foreign body," but neglected to tell her. She didn't seek more treatment for the foot until 1999, when she saw a podiatrist who finally diagnosed a tumor and synovial sarcoma. Due to the delay in diagnosis, she required aggressive treatment including a foot amputation and multiple rounds of chemotherapy and radiation (requiring her to terminate a pregnancy). She died in October of 2005 at 33.

Before her death, Busch sued NE Methodist for failing to follow up on the "retained foreign body" X-ray; that was settled out of court. She later sued BAMC for failing to follow up on the orthopedic appointment; her mother took over after she died. After a four-day bench trial, the court found the government liable for failing to arrange the orthopedic appointment or explain the urgency of the situation. It declined to find Busch comparatively negligent for failing to follow up. It also found no evidence that NE Methodist had any responsibility for the failure to diagnose. It awarded "significant damages" but capped the household damages at $250,000, pursuant to a Texas noneconomic damages cap.

The family appealed the damages cap; the government appealed the finding of no liability for Busch or NE Methodist. The Fifth U.S. Circuit Court of Appeals found for the family on both counts. On the liability of NE Methodist, the Fifth agreed with the trial court that the treating doctors' failure to disclose the X-ray results did not breach the standard of care. Furthermore, evidence at trial showed the real problem was BAMC's failure to diagnose in 1997. The court next found no error in the trial court's failure to hold Busch comparatively negligent. Patients have a responsibility to cooperate and follow up in their care, but the Fifth agreed with the district court that Busch met the standards of a reasonably prudent person with her medical knowledge. Not only was the possibility of cancer never mentioned, but in fact, Busch was repeatedly told the injury was only a contusion. However, the court found that the trial court erred in limiting household services damages to the Texas noneconomic damages cap. Household services are treated as economic damages in Texas, but need not be proven "with mathematical precision," the appeals court said. It remanded that issue for further proceedings.

As a Pennsylvania medical malpractice lawyer, I'm pleased to see the entire ruling. Comparative fault has a role in our justice system, of course, but defendants often also use it as a way to essentially blame the victim. I'm also particularly pleased to see a ruling establishing that the Texas cap on noneconomic damages does not include household services. These are things that a deceased person would normally have done around the house, including cleaning, childcare, yard work, repairs and more. All of those are very clearly things that cost money to replace. As a Philadelphia birth injury lawyer, I appreciate the role of noneconomic damages as well -- but it's important that courts know the difference.

WWE's John Cena Unhurt After Three-Vehicle Accident on Route 76 in Philadelphia

Tue, 20 Mar 2012 20:16:15 -0500

As a Philadelphia injury lawyer, I was interested to read about a minor car accident here in Philadelphia involving a celebrity. NBC Philadelphia reported March 20 that WWE wrestler John Cena was in the car at the end of a chain-reaction accident on Route 76, but wasn't hurt. Cena was out doing media appearances to promote his fight that night against Mark Henry, "The World's Strongest Man," on Monday Night Raw at the Wells Fargo Center. His driver, Jules Anderson, told WWE that their SUV was rear-ended by a sedan that had itself been hit from behind by a tractor-trailer. Fortunately, they said no one was hurt, even though the sedan appeared to be totaled by the crash. Cena was checked over by WWE medical personnel and cleared to fight Henry that evening.

The WWE website said the crash happened around 11:30 a.m. in the eastbound lanes of Route 76. Cena was on the phone at the time and a WWE Live Events employee was also in the car, along with Anderson. The SUV took damage, but according to WWE, no one inside was seriously hurt. The doctor who cleared Cena to fight said he may feel neck stiffness in a few days, a common symptom of whiplash-style injuries from rear-end accidents. Doctors plan to keep an eye on him, particularly since he will face The Rock in less than two weeks at WrestleMania XXVIII. Media reports said the drivers involved were arguing after the crash, but Cena's celebrity -- or perhaps his size -- stopped the argument when Anderson told them who he was.

As a Philadelphia accident lawyer, I'm very pleased that no one was seriously hurt in this crash -- though if the tough Cena had whiplash-style symptoms, it's likely that the other WWE employees and the sedan driver did too. The truth is, accidents between cars and big rigs are frequently deadly. Federal accident statistics show that large commercial trucks are involved in fewer accidents than passenger cars and trucks -- but when they do crash, the chances that someone will die go up dramatically. Because of their size and weight -- many times the size of a Honda Civic -- trucks can crush smaller vehicles at speeds that would not be concerning in a crash between two equal-sized cars. In this case, it's likely that the trucker was legally at fault for the crash, because the person behind is almost always at fault in a rear-end crash. Nonetheless, the sedan driver should be on guard, because trucking companies expect to get into accidents and have far more experience and legal firepower than the average driver. They may try to find a way to shift blame to the sedan's driver, to avoid paying for the damage.

Ohio Supreme Court Rules Court May Rehear Entire Medical Malpractice Dispute - Mullins v. Curran et al.

Mon, 05 Mar 2012 21:21:58 -0500

As a Pennsylvania medical malpractice lawyer, I was interested to see a recent decision from neighboring Ohio on whether an entire medical malpractice case must be retried when one element must be retried. In State ex rel. Mullins v. Curran et al., the Ohio Supreme Court took away a writ of prohibition that would have barred the trial court from retrying negligence and damages in a medical malpractice case as well as a missing jury instruction. Lisa Mullins sued Dr. Gregory McDaniel and Comprehensive Pediatric and Adult Medicine for alleged negligence leading to the death of her husband, Charles Mullins. After Mullins won, the defendants successfully appealed, winning a new trial. On remand, Lisa asked for a writ prohibiting the court from retrying the liability and verdict, which was granted by the appeals court but overturned by the high court.

Mullins sued in 2004 and a jury found for her in 2007. The opinion does not detail the facts of the case except to say that the jury found negligence by McDaniel and Comprehensive, which it determined was a proximate cause of the death of Charles Mullins. The defendants appealed the trial court's refusal to instruct the jury on possible contributory negligence by Lisa Mullins, and the denial of a new trial. They won, and in the opinion granting this, the Court of Appeals "remand[ed] this matter to the trial court for further proceedings." Mullins filed a request to keep the verdict and jury findings while retrying only the issue of contributory negligence. The trial judge denied this, saying a full retrial was consistent with the appeals court's mandate, so Mullins filed with the appeals court for a writ limiting the retrial to the issue of contributory negligence. She won this over objections from the judge, the Court of Common Pleas and the defendants, who appealed to the Ohio Supreme Court.

The high court found the judge reasonable in his conclusion that the appeals court intended to order a retrial. The appeals court did not specifically limit what should be reviewed, the Supreme Court noted, and its original opinion was less than clear. Because it later granted the writ of prohibition to Mullins, the court noted, it's now clear that the appeals court did want to limit the retrial to contributory negligence. Nonetheless, it said Mullins has an adequate remedy under the law to argue the point, if necessary, by appealing after the retrial. If it were to conclude otherwise, the court found, it would bar the defendants from challenging the merits of the appeals court's decision to order a limited recall. Thus, it reversed the appeals court. Two justices concurred, pointing out that contributory negligence is a defense to negligence and cannot be tried separately. A dissenter found the retrial "clearly limited" by the appeals court's language and well supported by its granting of the writ.

As a Philadelphia birth injury lawyer, I understand the concerns that led Mullins to pursue this case. After all, a retrial of the full case invites the possibility that Mullins may lose before a different jury, which would lose her the case even though the law and facts underlying the original victory were not questioned. The court is right to observe that contributory negligence -- the degree to which a plaintiff like Lisa Mullins may be responsible for the injury -- may be a defense to negligence. But as a Pennsylvania medical negligence lawyer, I suspect it may be difficult to prove that Lisa Mullins bore most of the responsibility for a death originally attributed to doctors' mistakes.

Court Declines to Find Willful and Wanton Conduct by Parking Lot Company in Bicycle Crash - Simpson v. Colonial Parking

Tue, 21 Feb 2012 21:42:06 -0500

As a Philadelphia accident lawyer, I know that injuries on someone else's property can be quite serious. These are sometimes called "slip and fall" injuries, and while a slip may sound minor, the fall can cause very serious injuries under the wrong circumstances. In Simpson v. Colonial Parking Inc., Robert Simpson fell from his bicycle after hitting a pothole in a parking lot belonging to Colonial. Simpson had been taking a short cut through the Wilmington, Del. parking lot at the time, not using Colonial's parking services. He sued Colonial, arguing that Colonial had a legal obligation to maintain safe premises. The trial court dismissed his case, finding he was a trespasser on the lot rather than a licensee. On appeal, the Delaware Supreme Court found the issue moot, since Colonial had not engaged in the "willful and wanton conduct" required to make it liable in either case.

Simpson's accident took place in July of 2009. He passed through an ungated entrance to the parking lot in Wilmington and unexpectedly bicycled into a "large pothole." The pothole was marked with an orange traffic cone, but he said he noticed it only after the crash. He sustained personal injuries that were not described and eventually filed suit. His lawsuit claimed Colonial's premises were unsafe, leading to his injuries and breaching a duty owed to him and other visitors by Colonial. At trial, the court held a hearing on cross-motions for summary judgment and found for Colonial. It ruled that Simpson was not a "licensee" (the legal status of a customer or another invited guest) on the property because he had failed to establish implied consent to his presence by Colonial. Instead, Simpson was a trespasser, it ruled, which means Colonial's only duty was to avoid "willful and wanton" conduct -- a lower standard than that for licensees. Simpson appealed.

The Delaware Supreme Court affirmed summary judgment against Simpson -- but not because Simpson was a trespasser. Rather, it said, the lowered "willful and wanton conduct" standard applies to licensees as well as trespassers. Under a 1996 ruling, Hoesch v. National RR Passenger Corp., Delaware expressly adopted the willful and wanton standard for owners and occupiers of commercial and industrial land. This is in contrast to the Second Restatement of Torts that the trial court (and many other states) relied on, which says landowners are liable to licensees if they know or should know of a dangerous condition and fails to fix it or warn licensees. Thus, the trial court reached the correct result even though it incorrectly believed the standard for licensees came from the Second Restatement of Torts. Reminding trial courts that Delaware has a different standard, the court affirmed the lower court's summary judgment.

As a Philadelphia personal injury lawyer, I'm disappointed that our neighbors in Delaware apply such low standards to premises liability -- the section of the law on which this is based. Here in Pennsylvania, the law distinguishes between the duty of a land owner or occupier to invitees, such as customers; licensees, who have permission to be there but no business relationship; and trespassers, who are there without permission. Not surprisingly, trespassers have fewer rights than the other two categories of visitor. Thus, whether Simpson was a trespasser or a licensee would matter very much in Pennsylvania, even though it ultimately didn't matter in his home state. In general, Pennsylvania law requires land owners and occupiers to correct dangerous conditions or post warnings, or they are legally liable for any harm to visitors that results. As a Philadelphia injury lawyer, I handle these cases in a variety of contexts, including at businesses, private homes and after an act of violence.

Arkansas Supreme Court Strikes Down Law Requiring Expert Testimony From Same Specialty - Broussard v. St. Edward Mercy Health Systems

Tue, 07 Feb 2012 20:23:42 -0500

As a Pennsylvania medical malpractice lawyer, I was interested to see a decision throwing out a state law requiring testimony in medical malpractice cases from experts in the specific medical field at issue. In Broussard v. St. Edward Mercy Health System et al., the Arkansas Supreme Court found unconstitutional a state law requiring that medical malpractice cases be proven with testimony from an expert in the same specialty as the defendant. This violates the separation of powers doctrine and the inherent authority of the courts, the high court said. The decision means Broussard may pursue her claim for medical malpractice in the treatment of what she says is a burn she sustained during surgery.

Broussard underwent removal of one or more parathyroid glands in April of 2006. After the surgery, she discovered what she thought was a burn at the site of the surgery. Although she has been unable to discover its cause, the injury caused pain and swelling that caused her to go back to the hospital emergency room six days after her discharge from the surgery. At that time, she was admitted for apparently unrelated conditions related to kidney failure. A dermatologist told her during this hospitalization that the injury would heal. Nonetheless, she sought treatment eventually for dead and sloughing tissue at the surgical site at a burn center, which removed the "pigskin" and grafted on healthy skin. She eventually sued the hospital and several of its nurses and technicians; Dr. Steven Seffense, the thyroid surgeon; and Dr. Michael Coleman, Jr., the kidney specialist. The trial court granted summary judgment to the doctors based on finding that the expert testimony law was constitutional. Broussard appealed.

The Arkansas Supreme Court started by reviewing the law, which says "a medical provider of the same specialty as the defendant" must testify to prove plaintiffs' claims about standards of care and whether the defendant's actions met those standards. The high court found that this was unconstitutional in Arkansas because it sets out procedural law -- the province of the courts themselves -- rather than the substantive law the legislature may make. Furthermore, it said, the expert testimony requirement conflicts with existing law because the high court itself had already set out rules for expert testimony in Arkansas Rule of Evidence 702. Finally, the high court found that the trial court should not have granted summary judgment as to Seffense because it ruled on the basis of events in the operating room rather than treatment of the burn. Because it believed Broussard should have been permitted to amend her pleadings to conform with discovery, the Supreme Court reversed.

As a Pennsylvania medical negligence lawyer, I appreciate the high court's actions in Arkansas. The law being struck down is fairly recent and very likely to be a product of politics rather than good public policy. As we've seen in our own state in this legislative session, and in local and national debates throughout the country, the issue of medical malpractice is very politicized, with conservative politicians often seeking to pass laws that limit plaintiffs' ability to recover a fair amount of money. This may get votes, but it does injured people a disservice by arbitrarily limiting their rights before they are even injured, giving judges and juries no flexibility to respond to the facts of the case. As a Philadelphia birth injury lawyer, I agree with the Arkansas Supreme Court that courts should control court procedures -- not legislatures or politics.

Pennsylvania High Court Declines to Apply Make Whole Doctrine to Pro Rated Deductible Reimbursements - Jones v. Nationwide Property & Casualty Ins.

Mon, 16 Jan 2012 22:13:58 -0500

As a Philadelphia personal injury lawyer, I'm very familiar with the legal concept of subrogation. In personal injury cases, subrogation allows an insurance company to "stand in the shoes" of the insured person, which permits it to sue an at-fault driver even if the insured won't, or collect on any lawsuit judgment the insured wins on his or her own. Courts have frequently stepped in to keep insurance companies from collecting unfair amounts, however, and one way they've done that is applying a legal doctrine saying the insured must be "made whole" before the insurer can collect. So I was interested to see that the Pennsylvania Supreme Court rejected the make-whole doctrine in an insurance subrogation case, in Jones v. Nationwide Property & Casualty Insurance Co..

Brenda Jones of Philadelphia County was hit by an at-fault driver and, luckily, suffered only damage to her car. She had collision coverage that allowed her to collect an insurance settlement for the amount of the damage, minus a $500 deductible she paid herself. Nationwide's contract gave it a subrogation right to sue the at-fault driver's insurance company for reimbursement of that payment, so it did. That recovery was 90 percent of the amount that Nationwide actually paid, however. As a result, when Nationwide paid Jones back for her deductible from that money, it paid only 90 percent of the deductible -- $450. This was pursuant to Nationwide's ordinary practice and mirrored a state Insurance Department regulation. Jones filed a class-action lawsuit alleging violations of the make-whole doctrine, breach of contract, unjust enrichment, conversion and insurance bad faith. The trial court dismissed the case and the Superior Court affirmed, finding that a practice permitted by state insurance regulators implicitly modifies the common-law make-whole doctrine.

After reviewing arguments from both sides and Pennsylvania's acting Insurance Commissioner, which filed an amicus brief supporting Nationwide, the Pennsylvania Supreme Court started by ruling that applying the make-whole doctrine to subrogation in collision-coverage-only cases would undermine state laws requiring at least some deductible on any insurance policy. By allowing full recovery of the deductible, it said, the courts would essentially create a no-deductible situation. Furthermore, it said, allowing full recovery in collision coverage cases would be inequitable because the insurer assumes the risk and expense of litigation in such cases. And because there's a deductible, requiring the insurer to pay more than the pro-rated amount would amount to preferential treatment for the insured, who after all agreed to take on the risk of a deductible. Thus, it upheld the lower courts, but on different grounds.

Though this decision was not good for the driver, I believe the underlying logic might be good news for Philadelphia accident lawyers like me. This decision reverses the usual situation in subrogation of personal injury claims, because normally, the driver has sued the at-fault driver and the insurance company steps in to claim a piece of the recovery. In that situation, it's well-established that the insured must be made whole before the insurer may be paid. This decision repeats the equitable principles -- what might be called principles of fairness -- that underlie this policy decision by the Pennsylvania courts. As a Philadelphia injury lawyer, I believe this benefits injured people fighting money grabs more often than it harms them.

Pennsylvania Supreme Court Rules Plaintiff May Claim Emotional Distress Only in Medical Case - Toney v. Chester County Hospital

Wed, 04 Jan 2012 18:12:08 -0500

Emotional damages are often an important part of my work as a Philadelphia birth injury lawyer. Cases involving injuries to infants and small children are emotionally compelling, of course -- and because the children are so young, there's no immediate income loss to claim as financial damages. However, when we handle this kind of case, it's almost always with emotional damages as a component of a claim for financial damages; an emotional claim alone is not typical. So I was very interested to see the Pennsylvania Supreme Court's ruling in Toney v. Chester County Hospital et al., in which Jeanelle Antoinette Toney filed what might be called a wrongful life case in other states. Toney sued for negligent infliction of emotional distress after an ultrasound failed to turn up severe physical abnormalities in her son.

Toney underwent her ultrasound four months before giving birth to a son with no limbs below his knees or elbows, a hernia, and deformations of the jaw, tongue and penis. All parties agree that the defendants -- including the doctor, the hospital and several medical organizations -- represented the results of the ultrasound as normal. Toney claimed in her lawsuit that this prevented her from preparing herself for the shock of seeing her son's abnormalities, leading to stress, anxiety, depression and other symptoms of emotional distress. She did not claim that the defendants caused the abnormalities; she clamed only damages for negligent infliction of emotional distress. Defendants successfully moved to dismiss the NIED claims, arguing that Toney failed to state a claim because her claims didn't fit existing theories of NIED and because the defendants did not cause bodily harm to her or the child.

The Superior Court reversed on appeal, finding that Toney adequately stated a claim for NIED based on a contractual or fiduciary duty -- the duty of care in the doctor-patient relationship. It also found that the distress to Toney was reasonably foreseeable and that physical symptoms from emotional distress meet the physical injury requirement. The defendants appealed to the Pennsylvania Supreme Court.

Making new law in Pennsylvania, the high court found for Toney. It divided the appeal into two questions. On the issue of whether NIED can be claimed based on a contractual or fiduciary relationship, the Supreme Court relied on the decisions of other states that have found a special-relationship basis for a NIED claim. This type of claim follows the lead of other NIED claims, in that it's limited to cases with a preexisting relationship with the potential for deep emotional harm from a breach; the potential emotional harm must be deep and extraordinary. In finding this implied duty for medical professionals, the court ruled that Toney's claim should survive summary judgment. On the issue of whether a physical effect was required, the court noted that caselaw has previously required this. However, it said, it has also allowed exceptions for the distress of bystanders or victims of near-misses, and sometimes awarded damages for negligible physical impacts masking serious emotional impacts. Concluding that physical impact is "a flawed tool," the court discarded the requirement. Thus, it found Toney had stated a claim and remanded her case for further proceedings.

As a Pennsylvania medical negligence lawyer, I am happy to see that my Pennsylvania clients will now be able to claim emotional damages even in the absence of physical harm. In cases like this, the emotional effect of the medical professionals' alleged failures is clear and obvious: Toney was confronted with an unexpected shock shortly after giving birth, not the healthy son she had come to expect. In addition, she was also likely asked to make difficult decisions about medical treatment for the child. Depression, which is already a risk for new mothers, must be substantially more likely in such a case. If the ultrasound had been misread in a way that prevented timely medical care, it would be an undisputed failure to meet basic standards of care in Pennsylvania. That the misreading did not create any physical harm in this case is nothing more than luck, and in my opinion as a Pennsylvania medical malpractice lawyer, not something we should condone by removing liability.

Health Insurer May Not Take All of Auto Accident Victim's Recovery, Third Circuit Rules - U.S. Airways v. McCutchen

Tue, 06 Dec 2011 18:16:19 -0500

As a Philadelphia injury lawyer, I frequently work on cases involving more than one insurance company claiming the same limited amount of settlement or verdict money. Health insurers, for example, may be entitled to repayment from insurance companies, reducing the recovery paid to the victim. This can delay the ends of cases, and the payout to the victim, while legal relationships are worked out. But rarely have I read about a case like U.S. Airways Inc. v. McCutchen, in which an employee benefits plan sought to recover so much money from a small settlement that the victim actually would have been unable to fully pay his attorneys, and had nothing left for himself. In this case, the Third U.S. Circuit Court of Appeals decided that U.S. Airways was not entitled to recover all its costs without respect to attorney fees.

James McCutchen of western Pennsylvania was seriously injured after another driver crossed the median of the road and slammed into his car, triggering a chain reaction in which a truck also rear-ended his car. After emergency surgery, McCutchen survived but was permanently disabled at the age of 51. His employee benefits plan, administered and financed by U.S. Airways, paid a total of $66,866 for his medical treatment. The insurance for the driver who hit McCutchen had only $10,000 after paying other victims, and McCutchen was able to recover another $100,000 from his own underinsured motorist insurance. After paying his attorneys, he received less than $66,000 -- but U.S. Airways sued to recover the entire $66,866 it had paid for his care. The attorneys placed their fee ($41,500) in a trust account for the litigation. The airline argued, and the district court eventually agreed, that language in the benefits plan entitled it to recover the entire amount, without respect to attorney fees. The attorneys lost their fee and McCutchen paid an additional $25,366 from his recovery. They appealed.

The Third Circuit's opinion said ERISA, the federal law governing the kind of plan U.S. Airways offered, gives plan administrators the right to enforce terms, but limits the right to an injunction or "other appropriate equitable relief." Previous U.S. Supreme Court decisions have determined that a claim like this one is equitable, but have not established what would be "appropriate" equitable relief. McCutchen argued that the recovery sought by U.S. Airways is not appropriate. The Third's analysis said appropriate equitable relief should be something less than all equitable relief, which in turn is less than all relief under caselaw. Indeed, the court said, it would be strange for Congress to intend "appropriate equitable relief" without including any traditionally applicable defenses or doctrines. Allowing U.S. Airways to collect the full amount would give it a windfall at McCutchen's expense, without the airline exercising subrogation rights or contributing to McCutchen's legal team. The Third sent back the decision to the district court for consideration of what relief for the airline could be "appropriate."

As a Philadelphia accident lawyer, I'm pleased but not surprised to see this outcome for McCutchen. This kind of claim by a benefits plan is not usual -- indeed, the Third observed in a footnote that "U.S. Airways' claim to reimbursement from McCutchen's pocket is unprecedented." It's worth keeping in mind that McCutchen was permanently disabled at the age of 51 because of someone else's bad driving. The money he recovered from insurance was intended to compensate him for the medical and legal bills he incurred as a result. It was far less than he likely needs, but all that was available -- which makes it even more disturbing that a major airline's employee benefits plan felt entitled to take it. It's also worth keeping in mind that McCutchen paid insurance premiums to the plan in exchange for the insurance coverage that U.S. Airways essentially attempted to take away in this case. As a Philadelphia personal injury lawyer, I'm pleased to see that it did not succeed.

Pennsylvania Congressman Introduces Law Barring Lawsuits Over Electronic Records Errors

Tue, 29 Nov 2011 21:04:24 -0500

As a Pennsylvania medical negligence lawyer, I was alarmed to read about a Congressional bill that could rob families nationwide of their ability to hold negligent medical professionals responsible for life-changing mistakes. As the Wilkes-Barre Times Leader reported Nov. 28, Rep. Tom Marino, a Republican from Pennsylvania, has introduced legislation that would allow reporting of mistakes caused by electronic medical records without the report being used as an admission of wrongdoing. The bill applies to providers who accept Medicare or Medicaid, which the newspaper notes extends it to most providers. The bill also limits electronic discovery in such lawsuits and sets a statute of limitations that may be shorter than that of any particular state.

The goal of the bill, according to the newspaper, is to encourage medical providers to start using electronic records more often. Marino says many choose not to because they believe it will make them vulnerable to lawsuits. The Institute of Medicine recently released a report calling for a system to create a reporting system for records-related injuries and deaths, and Marino's bill would create such a system. In a statement, a spokesperson for the Institute said this would better protect patients. But critics of Marino's bill said it would actually leave patients less well protected by creating perverse incentives for providers. One Pennsylvania medical malpractice lawyer told the paper that granting legal immunity for reporting mistakes would take away consequences for providers' actions, giving them no incentive to correct problems.

I agree. The bill would not necessarily stop medical malpractice lawsuits, but by making the records impossible to use in court, it would limit plaintiffs' chances of winning. If the system for reporting mistakes is confidential, the public and reporters would also have no way to determine which providers are doing a good job and which are falling short. As a Philadelphia birth injury lawyer, I do not recommend that patients rely on medical providers (or any other institutions) to police themselves. Other aspects of the bill are also disturbingly anti-patient, including the provision that would sharply reduce the deadline to file certain claims. It would limit claimants' ability to claim punitive damages, and limit discovery of electronic records in lawsuits. I believe patients should have the same right to hold negligent doctors responsible that other victims of negligence enjoy, and this bill appears designed ot make that more difficult.

Bucks County Man Charged With Vehicular Homicide After Second DUI in Two Days

Wed, 23 Nov 2011 15:14:30 -0500

As a Philadelphia injury lawyer, I was disappointed to read about the death of a bicyclist at the hands of a repeat drunk driver. According to WPVI, 22-year-old Brett Truskin of Bucks County is accused of hitting and killing a bicyclist just hours after his release on a previous DUI. Truskin is accused of hitting Gregory Loper, a 49-year-old father of 11, as he rode in a bicycle lane in Kensington, then attempting to flee the scene. The crash happened Friday evening, less than 24 hours after Truskin was arrested for DUI late on Thursday. The earlier crash involved three cars on Interstate 95 but did not result in any reported injuries. Truskin is being held on $475,000 bail.

Truskin, of Ivyland, started his brushes with the law Thursday night when he allegedly caused a three-car accident on the Interstate. No injuries were reported from that crash, but Pennsylvania state troopers tested his blood and found enough evidence to charge him with driving under the influence, as well as criminal mischief. They impounded his car, but he was released early Friday without bail. Later on Friday, Truskin was reportedly driving his mother's car down Lehigh Avenue in the Kensington neighborhood of Philadelphia when he swerved into the bike lane and hit Loper. Witnesses said Truskin also hit several parked cars in the crash, but continued driving until he caused another accident. That crash injured an unidentified 52-year-old man who was taken to the hospital with stomach and back pain. Witnesses reportedly held Truskin at the scene until police could arrive. He is now facing an additional DUI, homicide by vehicle, causing an accident involving death, reckless endangerment and more.

Some of the reports on this focus on why authorities released Truskin without bail so quickly after his arrest. Given the trail of destruction he apparently created as soon as he got behind the wheel again, this question is understandable. While it's impossible to say whether the judge had reason to think Truskin would offend again so soon, it doesn't look like he learned anything from his first DUI experience. The Bensalem Patch.com also reports that Truskin had previous legal problems from which he may not have learned, including burglary charges from 2007 and theft and drug charges from 2010. This is not only unfortunate but tragic, because it caused the death of a father and grandfather who was doing nothing more than returning home from work. It's too late for authorities to stop this crash, unfortunately -- but the family, which may well have depended on his financial support, may still be able to seek justice through a Pennsylvania auto accident lawsuit.

The Philadelphia accident lawyers at Rosenbaum & Associates represent people across eastern Pennsylvania who have lost a loved one or suffered serious injuries because of a driver's negligence. This includes law-breaking and extremely bad decisions, such as the decision to drive under the influence, as well as ordinary inattention. When a crash takes a life or leaves victims with catastrophic injuries, families frequently face financial hardships as well as medical and emotional problems. Medical bills for serious injuries can add up very quickly -- and if the victim was a breadwinner, he or she is likely not working and not earning a paycheck from which to pay those bills. A lawsuit helps victims turn those costs back to the negligent people who caused them, so they can concentrate on recovering.

Death of Philadelphia Baby Raises Questions as Apology Law Moves Through Legislature

Mon, 14 Nov 2011 21:14:25 -0500

As a Philadelphia birth injury lawyer, I was saddened to read about how one family's malpractice case could be affected by the Pennsylvania "apology law" working its way through the state legislature. The Philadelphia Inquirer reported Nov. 6 on the lawsuit by Ricardo Blake and Erica Allen-Blake, who lost their baby daughter Destinee LoToya Blake at just six days old. Destinee's death was caused by a medical error, and the article says officials at Abington Memorial Hospital explained the error and apologized at a meeting. The couple later sued, using the information they got at the meeting for much of the lawsuit. Though their case ultimately settled, the lawsuit raises a question that current Pennsylvania legislation tries to answer: Should families injured by medical malpractice be able to use this kind of meeting in court?

Destinee was born prematurely at 29 weeks, and weighed just one pound, nine ounces. The hospital needed to feed her intravenously, but because she was so small, they needed to use the biggest vein in her body to safely dissolve the nutritional fluid she received. That meant they needed to run a catheter into her biggest vein, stopping just before it reached the heart. Unfortunately, there was an administrative error with the chest X-ray required to make that delicate judgment, and it wasn't read in time. The catheter went a few millimeters too far, entered Destinee's heart and allowed fluid to seep into the sac surrounding her heart, stopping it. In their lawsuit, Blake and Allen-Blake said the hospital admitted fault in the death and described their meeting in detail. The hospital objected in court, arguing that the meeting was confidential, but the case settled before a trial could take place.

That objection is at the heart of the two bills in the Pennsylvania legislature on apologies in medical malpractice cases. The bills would make apologies inadmissible in medical malpractice cases. More controversially, they would also protect explanations of what happens. The bills are stalled because the state senator in charge of their current committee doesn't care for that second provision. Neither do Pennsylvania medical malpractice attorney groups, who argue that the bill shields doctors from the consequences of their actions. Doctors' groups say the apology law encourages doctors to apologize without fear of lawsuits, a fear that has created a culture of silence in the medical community. That's unfortunate, since one attorney told the newspaper that studies show apologies lead to fewer lawsuits and less cost for the medical professionals.

As a Philadelphia medical malpractice lawyer, I agree with the state senator who would prefer to keep explanations of fault admissible in court. No other category of defendant is permitted this kind of advantage in litigation -- to hide the main evidence of wrongdoing. Indeed, without the ability to bring up the kind of meeting Destinee's parents had, there's no guarantee of any other evidence, since explanations for medical events don't always make it into records. It may be difficult for people who don't work in this field to believe that medical professionals don't necessarily apologize when their mistakes hurt or kill a patient, the definition of medical malpractice. But unfortunately, doctors are so afraid of lawsuits that they may actually encourage them by seeming to turn a cold shoulder to malpractice victims. As a Philadelphia medical negligence lawyer, I think we can do better.

Mississippi Court Rules Lawsuit Over Shooting in Parking Lot Is Premises Liability Claim - Double Quick v. Moore

Mon, 07 Nov 2011 21:02:50 -0500

As a Philadelphia personal injury lawyer, I sometimes handle a special kind of slip-and-fall case known as a negligent security case. In an ordinary slip-and-fall case, the court applies premises liability law -- the law making owners of properties open to the public responsible for making sure those properties are safe. This generally means removing hazards like icy stairways, large holes in the floor or live electric wires. In negligent security cases, the same principle is applied to violent crimes -- premises owners can be held liable for failing to prevent violent crime, under certain circumstances. That was put to the test in the Mississippi Supreme Court's ruling in Double Quick Inc. v. Moore. The ruling grants summary judgment to Double Quick, a convenience store company, after determining that violence against Mario Moore was not foreseeable.

Moore was shot after he intervened in a fight between George Ford and Cassius Gallion. Ford and Gallion "exchanged words" inside the store, and assistant manager Wytisha Jackson accompanied Ford outside to ensure that his young son got into the car safely. The fight continued outside as Mario Moore arrived. Moore intervened, threw a punch at Ford and accidentally hit Jackson, who went indoors to call the police. In the meantime, Ford pulled a pistol from his trunk and shot Moore to death. Four months later, the administrator of Moore's estate, Dorothy Moore, sued Double Quick for negligence. In its motion for summary judgment, Double Quick argued that premises liability law applied and Moore failed to meet the standards of that tort, which requires proof of foreseeability. Moore cross-moved for summary judgment on negligence. The trial court ultimately denied both summary judgment motions but granted Double Quick leave to file this interlocutory appeal.

The Mississippi Supreme Court ultimately sided with Double Quick, finding that the case was more appropriately viewed as a premises liability case than a general negligence claim seeking to hold Jackson liable (and Double Quick vicariously liable) for failing to prevent the shooting. In order to make that determination, the court said, it must look at the facts. In this case, Jackson is not accused of shooting Moore, it said; in fact, Jackson was unaware of his presence at first. (That likely changed when he threw the punch.) However, the claim does spring from Moore's presence on the premises, so the court found that it was property a case of premises liability. In order to win such a case, the high court noted, the plaintiff must show that Double Quick breached a duty it owed to Moore. While Moore met most of the criteria for the claim, the court said, the plaintiff did not show that Moore's death was reasonably foreseeable. Indeed, it noted that Jackson voluntarily accompanied Ford and his son outside, and that no evidence of an "atmosphere of violence" was alleged on the site. Thus, it reversed the case and granted summary judgment to Double Quick.

This case is interesting to me as a Philadelphia injury lawyer in part because it shows how difficult it can be to prove a negligent security case. In Pennsylvania and most other states, it's not enough to show that you were hurt by violent crime on someone else's property; you must be able to show that the violence was easy to foresee. For example, if a gate is routinely left unsecured in a neighborhood known to be high in crime, an invasion of the premises may be reasonably foreseeable. In this case, Jackson's decision to accompany Ford outside is being interpreted as a sign that she felt no threat from him, but it could just as easily be read in the opposite way -- that she accompanied him outside precisely because she expected more fighting and thought her presence could prevent it. As a Philadelphia accident lawyer, I work hard to make my clients' cases whenever this kind of dispute arises.