Philadelphia Top Injury Lawyer Blog

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.

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

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.

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

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.

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

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.

Continue reading "Pennsylvania Congressman Introduces Law Barring Lawsuits Over Electronic Records Errors" »

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.

Continue reading "Bucks County Man Charged With Vehicular Homicide After Second DUI in Two Days " »

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.

Continue reading "Death of Philadelphia Baby Raises Questions as Apology Law Moves Through Legislature" »

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.

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

One common area of practice for me as a Pennsylvania medical negligence lawyer is failure to diagnose. When the disease is a serious one that benefits from early intervention, a doctor's failure to diagnose it can be quite damaging. And when the failure to diagnose is so unprofessional that it fails to meet ordinary standards of care for the Pennsylvania medical community, it absolutely is a form of medical malpractice. That was the allegation in Sawicki v. New Britain General Hospital, a Connecticut Supreme Court ruling. Brenda Sawicki sued a medical corporation, Mandell & Blau, P.C., for failure to diagnose her breast cancer. After trial, improper pre-deliberation juror discussions led Sawicki to allege juror misconduct and request a new trial. This was denied at the trial court level, but reversed by the Appellate Court and affirmed by the state's high court.

Sawicki had a routine mammogram in August 2000 that uncovered unusual masses. The radiologist recommended a followup ultrasound, but another radiologist ordered another mammogram instead and, deciding that it was inconclusive, recommended that she come for an exam on her normal schedule. Ten months later, Sawicki returned and was diagnosed with malignant breast cancer. She quickly underwent a single masectomy and reconstruction. In 2002, she sued, alleging that the failure to perform the sonogram and the failure to follow up on the inconclusive mammogram were malpractice. The defendant argued that Sawicki herself was negligent in failing to come to a followup appointment in December 2000 or follow recommended therapies after her masectomy.

The jury in her 2006 trial found for the defendant. However, Sawicki was approached after the verdict by two jurors, P and G, who alleged that a juror named M had sworn he was biased against Sawicki within two days of the trial's start. This juror was permitted to stay on the jury despite having said as much to the judge. A later misconduct hearing found that multiple jurors had discussed the case before it was closed. Sawicki moved for a new trial, and after the misconduct hearing, the trial court agreed that there was misconduct. However, it disagreed that any prejudice to Sawicki resulted. Sawicki appealed to the Appellate Court, which reversed, finding that the trial court improperly relied on the jurors' statements that they kept open minds despite the discussions. The defendant appealed.

The Connecticut Supreme Court upheld the Appellate Court, finding that Sawicki had been prejudiced by the jurors' discussions. It agreed with the defendants that the trial court applied the proper test to determine whether the juror misconduct had prejudiced Sawicki. However, it also found that the trial court was wrong in its results for that test -- that Sawicki had indeed been prejudiced. Indeed, the high court found that "the repeated instances of misconduct... were so severe and egregious that no reasonable fact finder could have concluded that the plaintiff had failed to establish prejudice." Two jurors had outright taken positions against the plaintiff very early in the case; others had made statements suggesting they had taken sides. This presents a danger that the jurors will pay attention only to the facts that strengthen their case, the court noted. Furthermore, there were so many such remarks from so many jurors that the bias was clearly not isolated, the court said. Thus, it reversed the trial court's decision to deny a new trial.

As a Pennsylvania medical negligence lawyer, I'm pleased that Sawicki's family will get the new trial -- although the opinion notes that Sawicki has died during the pendency of the appeal. Though any justice may be too late for her family, I still believe this case sends an important message about the way juries behave. Jurors are not permitted to discuss cases before they're fully presented for good reason: It creates prejudice through which they are likely to filter all of the facts being presented to them. This makes it impossible to have a fair trial, and thus, justice is not really done. (Of course, one might also say it's a waste of the time of the people presenting facts on both sides.) As a Philadelphia birth injury lawyer, I will take vigorous steps to protect my clients from this kind of juror prejudice.

Continue reading "Connecticut Supreme Court Finds Jury Misconduct Tainted Original Failure to Diagnose Trial - Sawicki v. New Britain Gen. Hosp." »

As a Philadelphia personal injury lawyer, I was interested to see a recent state Supreme Court ruling removing a barrier between public workers and adequate compensation for injuries they suffered in car crashes that were no fault of their own. In Heller v. Pennsylvania League of Cities and Municipalities et al., the state high court ruled that Sugarcreek Borough police officer Frank Heller should be permitted to claim underinsured motorist coverage for an accident he suffered while at work, even though he was also collecting workers' compensation insurance. Heller's department was insured by the Pennsylvania League of Cities and Municipalities, which had an express exclusion for any employee eligible to claim workers' compensation. In this decision, the state Supreme Court found that this violates public policy and cannot be enforced.

Heller suffered injuries that his complaint described as "severe and disabling" on Halloween of 2002. He successfully claimed workers' compensation and recovered the limit of the at-fault driver's policy, but this was just $25,000. This was inadequate for his injuries, so he notified the borough's auto insurer of a potential UIM claim. The insurer denied it because of the policy exclusion against UIM coverage for workers eligible for workers' compensation, so Heller sued for a declaratory judgment saying this was against public policy. He received it in 2007; in fact, the court noted that this exclusion was expressly illegal until 1993. The Commonwealth Court reversed the decision, finding that in the absence of a specific law or caselaw, the conflicting policy considerations should favor the insurer. One judge dissented, saying the exclusion prevents workers' compensation insurers from subrogating UIM benefits and injured workers from collecting fully.

The Pennsylvania Supreme Court agreed to review only the issue of whether the exclusion violates public policy -- and eventually found that it does. On appeal, Heller (supported by amicus Pennsylvania Association for Justice) argued that the borough's UIM coverage is "illusory" because nearly all borough employees are eligible for workers' compensation. The court started its analysis by noting that Pennsylvania's auto insurance laws are aimed at cost containment. However, it noted, cost containment is not enough to allow insurers to deny coverage for which the insured has contracted and paid. In this case, the borough voluntarily paid for UIM coverage, which it could have opted not to buy. However, the high court said, the coverage is unlikely to ever attach because of the exclusion that covers basically all borough employees. Thus, it agreed that the coverage is illusory and that the insurer gets a windfall by declining to provide it. To allow this would contravene the intention of Pennsylvania insurance law, it said. Thus, it found the exclusion contrary to public policy and reversed the lower court.

As a Philadelphia accident lawyer, I applaud this ruling. In essence, the high court said that insurers may not charge premiums for insurance and refuse to provide it, even when they write that refusal directly into their policies. The presence of an express written exclusion might normally make the court sympathetic to the insurer -- but in this case, the fact that every borough employee can get workers' compensation benefits means the exclusion functions to negate the purpose of the insurance. By doing this, the insurer was charging for something it knew it would never have to provide, and that's what the court found was against public policy. As a Philadelphia injury lawyer, I doubt that consumers or courts would put up with this kind of fraud in another context, and I applaud the court for not allowing it in insurance, where denying benefits is very much the path to profit.

Continue reading "Pennsylvania Supreme Court Outlaws Insurance Policy Exclusion Forbidding UIM Coverage - Heller v. Pennsylvania League of Cities and Municipalities" »

As a Pennsylvania medical negligence lawyer, I was interested to see a recent article about a classic case of alleged malpractice in Pittsburgh. According to the Pittsburgh Post-Gazette, Christa Mecannic and Michael Yocabet are suing UPMC Presbyterian Hospital for failure to notice or disclose that Mecannic was hepatitis C positive before transplanting her kidney into Yocabet. The article says Mecannic was summoned for what she thought was a routine post-operative checkup, only to discover that UPMC had finally caught the hepatitis C results that workers had apparently missed at least six times in the two months before the transplant.

Yocabet was a truck driver before diabetes and diabetic nephropathy forced him to retire. He and Mecannic had been together for 21 years before she agreed to donate a kidney to him. Mecannic believes she contracted hepatitis C as a result of her work as a licensed practical nurse, which she quit to care for Yocabet and go back to school. However, she said UPMC gave her the diagnosis by quietly taking her into an exam room and asking whether she had ever used cocaine or cheated on Yocabet. As a result of the hospital's failure to catch the diagnosis, they said, Yocabet faces an increased risk of disease. Healthy people can live with hepatitis C for years, but Yocabet is taking drugs to suppress his immune system so the kidney will not be rejected. If they had known about the diagnosis, the couple said they would not have chosen the surgery, and Mecannic would still have both kidneys. A doctor and a nurse were disciplined because of the case, which also caused UPMC to suspend its living donor program for two months and sparked a federal investigation. UPMC acknowledges the error but denies any cover-up.

As a Pennsylvania medical malpractice lawyer, I am pleased that this case is getting media attention. This kind of mistake is rare, and for good reason -- there are very real health implications for both of the people involved. There are no allegations that UPMC doctors missed red flags in other people's blood work, but given the systematic failures that created this case, it's a question worth asking. It's also the likely reason the organ transplant program was temporarily suspended. This kind of failure fits very neatly into the standard definition for medical malpractice: failure to meet a basic standard of care. Most medical malpractice cases come down to a judgment call, but in this case, it should be easy for the plaintiffs to find doctors willing to testify in their favor. As a Philadelphia birth injury lawyer, I hope they reach a favorable settlement and avoid any long-term health consequences.

Continue reading "Pittsburgh Couple Sues Hospital for Failure to Disclose Disease Before Transplant" »

As a Philadelphia accident lawyer, I was interested to see an insurance coverage dispute arising in neighboring Ohio over a serious auto accident. The Barbee family was traveling through Wisconsin when they were involved in a crash that was not their fault. They spent more than four years seeking full compensation from the at-fault driver's insurance company, but were unable to collect as much money as they needed to cover their injuries -- unfortunately not an uncommon situation. Thus, they sued their own insurer, Nationwide Mutual Insurance Co., which argued that the three-year deadline to sue had already passed. The trial court and an appeals court found in the Barbees' favor in Barbee v. Nationwide Mutual Insurance Co., but the Ohio Supreme Court reversed, finding the contract unambiguous.

The Barbees' insurance contract contained a provision requiring any lawsuit to be filed within three days of the accident. Other provisions required insureds to fully exhaust all other liability insurance before payment, and said insureds may not sue until they have fully complied with the contract. The Barbees put Nationwide on notice of potential claims after the crash, but Nationwide itself sued the unnamed tortfeasors first, to recover the cost of the family's medical care. More than two years after the crash, the Barbees sued in Wisconsin federal court. They eventually won, but because most of the fault was attributed to a deceased person, the estate could not cover all of their costs. More than four years after the crash, the Barbees sued Nationwide in Ohio state court to collect on underinsured motorist coverage. Nationwide moved for summary judgment because of the three-year provision, but the court denied this because of the exhaustion provision. Nationwide appealed to Ohio's Ninth District Court of Appeals, which agreed -- finding that the two provisions together were ambiguous, and ambiguities in insurance contracts should be construed in favor of the insured.

Nationwide's appeal to the Ohio Supreme Court was more successful. In essence, the court said, the dispute was over when the three-year period starts: at the time of the accident or when the insureds exhaust all other liability insurance limits in service of subrogation rights. While ambiguous contracts are generally construed against the drafter, the Ohio Supreme Court said, caselaw removes some of the ambiguity. Under Ross v. Farmers Insurance Group, the high court found that the right to payment may be limited until after other claims are exhausted, but that does not affect the accrual of the claim itself. The limits of the tortfeasors' policies never changed, the court noted, and there was no other special circumstance. The exhaustion provision limits the insured's right to receive payment, the court said, but does not require the insured to exhaust other avenues before filing suit. The high court rejected the argument that this would create a flood of unnecessary lawsuits, saying it seems to be common practice to file an uninsured motorist suit before the suit against the tortfeasor is finished, with many of these suits being stayed. Judges Pfeifer and McGee Brown dissented, arguing that requiring insureds to sue before knowing that they need the coverage is a waste of everyone's time and money.

As a Philadelphia personal injury lawyer, I must agree. Requiring plaintiffs to sue insurance companies before establishing the need for the coverage makes more work for attorneys like me, so it could be considered a win. But for my injured clients, who are generally not wealthy, it is very much a loss. More lawsuits require more time and money. Both of those are especially precious commodities to people who have suffered a serious injury or a loss in the family, because they are often saddled with huge medical bills and aren't able to earn as much money as they once did. In that situation, drawing out the case creates more unpaid bills and more anxiety and may even delay medical treatment. It may also be considered unfair in situations like the Barbees', where they had no reason to believe they needed uninsured motorist coverage until well into their first case. I agree that it's more efficient as well as more fair to start the three-year waiting period once this is discovered.

Continue reading "Deadline to Sue Insurance Company Applies Even When Policy Not Exhausted, Court Rules - Barbee v. Nationwide Mutual Insurance" »

As a Philadelphia medical malpractice lawyer, I occasionally handle claims with the unusual allegation that a child should not have been conceived. This may sound sad and ironic for couples struggling with infertility, but for those who sought a vasectomy or other sterilization, or have a high risk of birth defects, it's a serious matter. Such a claim was behind the New Mexico Supreme Court's decision in Provencio v. Wenrich, in which a woman sued a doctor who accidentally ligated a ligament instead of her one Fallopian tube. Cynthia Provencio had asked for a tubal ligation along with the Caesarian section that delivered her fourth child. Dr. Steven Wenrich informed Provencio of the mistake, but Provencio nonetheless conceived a fifth child. The Supreme Court found that the disclosure distinguished the case from a two-decade-old case in which the doctor did not inform the patient, and thus, Wenrich was entitled to judgment on the law.

The Caesarian and attempted tubal ligation took place in December of 2002. At a followup appointment a week later, Wenrich told Provencio that he had not "gotten" the Fallopian tube and said only a test would show how fertile she might still be; he provided her the forms for that test. However, Provencio declined to return to Wenrich; she took the necessary test in November of 2003, and it was revealed that she was still fertile. She and her husband conceived another child five months later and eventually gave birth to a healthy baby. In 2005, the Provencios sued Wenrich for wrongful conception and battery, seeking to recover the costs of raising the fifth child as well as punitive damages. They did not ask for any damages related to the cost of the failed sterilization or another such surgery. After a trial, Wenrich moved for judgment as a matter of law on the wrongful conception claim. The trial court granted it, finding that the Provencios knew they were fertile at the time of conception and the doctor had not failed to inform them, as required by the New Mexico Supreme Court in 1991's Lovelace Medical Center v. Mendez. The Provencios declined an invitation to request damages for the failed sterilization. They appealed to the Court of Appeals, however, which reversed, finding failure to inform was not a prerequisite for recovering wrongful conception damages.

The New Mexico Supreme Court reversed the case again, finding that informing the Provencios about their continued fertility was enough to meet the standard of care. Wrongful conception is a part of medical malpractice or medical negligence, the court said, and medical negligence is defined as failing in the duty to meet the standard of care. Thus, the high court found that the question in this case is whether Wenrich met the standard of care in his actions with Provencio. Mendez does not clearly define Wenrich's duty, the court said -- so it looked to general medical malpractice law to decide that the relevant duty is the duty to inform. New Mexico is one of only a handful of states that allow complete recovery for all of the costs of raising a child in a wrongful conception case, and the high court found that there should be a high bar to this recovery. Thus, the court said the standard for recovering these damages must be a failure of the duty to inform. In this case, the Provencios were informed that there might be a problem a week after the failed tubal ligation, and confirmed it 11 months later, well before they conceived their fifth child. Thus, the Supreme Court found the trial court was correct in granting judgment for the defendant.

As a Philadelphia birth injury lawyer, I handle the more typical birth injury cases, which allege that a doctor's bad decision hurt the baby or mother during birth. In Pennsylvania, we do not permit plaintiffs to recover damages for wrongful conception or wrongful birth. However, plaintiffs are certainly free to sue a doctor for the failure of a sterilization surgery, just as they would be in any state.

Continue reading "New Mexico Supreme Court Rules Wrongful Life Lawsuits Only Permitted When Doctor Fails to Warn -Provencio v. Wenrich" »

As a Philadelphia accident lawyer, I handle many cases of auto accidents. In the majority of auto accident cases, one or both drivers caused the crash by negligently failing to pay attention or make good decisions. But every now and then, a case comes along in which the fault lies with the automobile itself, or one of its parts -- which means real responsibility for the crash can be assigned to the company that made the defective part. That was the allegation in Bender v. Mazda Motor Corp., a decision from the Eleventh U.S. Circuit Court of Appeals. Peggy Bender of Alabama alleged that a defective airbag in a Miata caused the death of a family member. Mazda attempted to remove the case to federal court on diversity grounds, but the federal court denied the motion and the Eleventh Circuit affirmed. In this ruling, the Eleventh says an intervening decision did not change its mind.

For federal courts to have diversity jurisdiction, the amount of money being asked for must exceed $75,000. In opposing the motion to remove the case, Bender alleged that there was no evidence that the amount in controversy reached that much. In its answer, Mazda cited a similar case, Roe v. Michelin North America, in which the federal court found that even if the amount in controversy was not pleaded in court, it was "clear" and "readily deductible" that it would exceed $75,000. Mazda asked the district court to follow this ruling, or in the alternative, stay the case until an Eleventh Circuit ruling in Roe. The district court denied this and moved the case back to state court. After the Eleventh Circuit's ruling in Roe, which ultimately stayed in the federal courts, Mazda moved in district court to reconsider in light of the new decision. The district court denied this on the grounds that the case was out of its hands, remanded back to state court. Mazda appealed.

Before the Eleventh Circuit, Mazda argued that under a 1987 Eleventh Circuit case, Ritter v. Smith, the district court should have granted its motion to bring the case back to federal court. Bender counter-argued with another Eleventh Circuit case, 1992's Harris v. Blue Cross/Blue Shield of Alabama. The Eleventh found Harris most persuasive. That case cited 28 USC sec. 1447, which says in part that orders to remand are not reviewable on appeal or otherwise. In Harris, the Eleventh expressly found that district courts may not review their own remand orders. This trumps the motion to reconsider filed by Mazda, the appeals court found. The appeals court further found that the outcome of Roe did not matter in this case. Even if the remand to state court was legally erroneous, it said, review by the district court or the Eleventh Circuit is still barred by sec. 1447: "The case has been removed to state court, and that is where it will stay." Thus, it affirmed the district court's refusal to reconsider.

As a Philadelphia personal injury lawyer, I am familiar with cases in which large, well-funded companies pull out all the legal stops to avoid liability. This is common because large companies generally have the money to fight cases all the way up to federal appeals courts, when necessary. Because facing legal liability can be very expensive in the long run -- and because fighting a case in appeals courts is expensive for individual litigants like Bender -- it actually does make sense for defendants with a lot of funding to fight small issues to death. This tactic does not give defendants a better argument on the facts, of course -- it helps defendants dodge legal liability by removing facts from consideration.

Continue reading "Court Rules Wrongful Death Case Involving Defective Car Allegations Belongs in State Court - Bender v. Mazda Motor Corp." »

As I've recently discussed, Pennsylvania has a requirement in medical malpractice cases to submit a written affidavit from a medical professional whose specialty is similar to that of the defendant. This is intended to weed out frivolous medical malpractice cases, but as a Pennsylvania medical negligence lawyer, I dislike that it also erects another barrier to seeking justice. A similar requirement exists in Connecticut, and it's the subject of that state's Supreme Court's decision in Morgan et al. v. Hartford Hospital et al.. In this case, Winston and Edna Morgan sued a surgeon over the death of Una Morgan, of complications from heart surgery. The defendants, argued that the Morgans' case should be dismissed because they submitted an affidavit from the wrong type of medical expert. But the Connecticut Supreme Court found that by waiting more than 19 months to make that argument, the defendants had waived it.

Una Morgan underwent a heart catheterization on Jan. 3, 2005, and developed bleeding and an abdominal hematoma afterward. The next morning, Dr. Robert Lowe examined Morgan, noticed signs of bleeding and "recommended an interventional approach." Later on the same day more examination found an area of active bleeding, and metal coils were placed to help the blood clot. Nonetheless, Morgan died of multiorgan failure on Jan. 5. The plaintiffs, executors of her estate, sued Lowe and the hospital in March of 2009 for failure to timely diagnose and treat Morgan, causing her death. Connecticut law required a written opinion from a similar health care provider; they attached an opinion from a board-certified internal medicine specialist with a subspecialty in cardiac disease. Lowe is a thoracic surgeon with a subspecialty in vascular surgery. An amended complaint in April of 2008 included a written opinion from a vascular surgeon. Litigation proceeded until November of 2008, when the defendants successfully moved to dismiss the case on the basis that the written complaint was not from a similar health care provider.

On appeal to the Connecticut Supreme Court, the Morgans argued that the original opinion was adequate; that the opinion attached to the amended complaint was also adequate; and that the law requiring a written opinion is unconstitutional. The issue of whether the defendants raised their defense in a timely manner arose in oral arguments, after which the high court requested briefing. In the end, the Supreme Court agreed with the plaintiffs' argument that the defense was waived because the written opinion is a requirement of process that should be challenged within 30 days of filing an appearance. The legislature's wording clearly showed that it contemplated dismissal for failure to submit a valid opinion early in the case, the high court said. Furthermore, under Connecticut caselaw, it said, the failure to attach a written opinion from an appropriate health care provider is insufficient service of process. That means it falls squarely under the 30-day requirement of Connecticut's Practice Book Sec. 10-30. Thus, it reversed the dismissal motion and remanded the case for further proceedings.

As a Philadelphia medical malpractice lawyer, I appreciate that the court has ruled in this way because it has taken away an incentive for defendants to waste substantial time and resources. If defendants were permitted to move to dismiss months or years after the written opinion was submitted, they would be able to drain plaintiffs' resources by drawing out many hearings and depositions, only to have them all swept under the table by a dismissal. This would make it harder for the plaintiffs to file again (if that's even possible) because they would have less money with which to pursue the case. This might be a great outcome for malpractice insurance companies and their doctors, but it does nothing for people who have been injured by the negligence of a medical professional. As a Philadelphia birth injury lawyer, I believe injured families don't deserve any more obstacles to seeking justice.

Continue reading "Connecticut Supreme Court Rules Medical Malpractice Defendants Waived Defense By Sitting on It - Morgan v. Hartford Hospital et al." »

As a Philadelphia accident lawyer, I routinely handle cases that straddle the Pennsylvania state border with New Jersey. Because New Jersey is part of the Philadelphia metro area, it's not uncommon for a New Jersey resident to be involved in an auto accident in Pennsylvania, or vice versa. Occasionally, this can cause problems for drivers making insurance claims outside their home state. In Amica Mutual Insurance Co. v. Fogel, the situation was similar: the Fogel family had moved from New Jersey to Pennsylvania, and taken their Amica insurance policy with them. Amica knew about the move. However, when the family was involved in a bad accident in Pennsylvania, the company had not yet converted the policy to a Pennsylvania policy, which would give the Fogels more compensation. In this ruling, the Third U.S. Circuit Court of Appeals ruled that New Jersey choice-of-law rules apply to the dispute, but point to Pennsylvania law.

The Fogels moved to Pennsylvania in August 2008, and father Edward Fogel called Amica in September 2008 to notify it that they had moved permanently. The company began billing in Pennsylvania immediately, but told him it could not convert his policy to a Pennsylvania policy until he and his wife had Pennsylvania driver's licenses and vehicle registration. That did not happen until early 2009. However, in October of 2008. Edward Fogel and his three daughters were hit head-on by an allegedly intoxicated driver. The crash killed daughter Melissa Fogel and seriously injured the others. The at-fault driver had liability insurance of $100,000, which was paid but did not meet the family's financial needs. The family had PIP insurance for $250,000 per family member. However, under Pennsylvania law, they would be entitled to "stack" their policies for more than one vehicle, collecting more money; New Jersey did not allow this. The Fogels sought to collect under Pennsylvania law, and Amica filed in New Jersey for a declaratory judgment that New Jersey law applies. This was transferred to Pennsylvania district court, which eventually granted summary judgment in favor of Amica. The Fogels appealed to the Third Circuit.

They had better luck at the appeals court. The Third started by noting that under existing caselaw, New Jersey law should be chosen because New Jersey was the forum in which the case began. It then applied New Jersey law to determine which state's law controls the actual insurance dispute. A 1998 New Jersey Appellate Division case, NJ Manufacturers Insurance Co. v. MacVicar, had strikingly similar facts' to the Fogels' case, the Third said; that family also sought to apply Pennsylvania law to a New Jersey policy after moving but before converting the policy. That case stayed in New Jersey state court, however, and the Appellate Division ultimately decided that Pennsylvania law applied to the crash because New Jersey follows the Third Restatement of Conflicts of Laws, which says to choose the law of the state with the most significant relationship to the parties and the transaction at issue. When the Fogels moved to Pennsylvania, the insured risk clearly also moved to Pennsylvania. Thus, it didn't matter that the Fogels hadn't yet reregistered their vehicles and gotten the rewritten policy; both parties were on notice that they were driving in Pennsylvania. Following MacVicar, the Third also ruled that Pennsylvania law should apply because Pennsylvania has a greater governmental interest in the case. Thus, it reversed and remanded the case for summary judgment on the choice of law issue.

As a Philadelphia personal injury lawyer, I'm glad to see the court apply Pennsylvania law to people who were clearly Pennsylvania citizens at the time of their accident. As the Third Circuit noted, Pennsylvania has a strong public policy interest in its stacking law, predicated on the belief that its citizens should be able to use all of the insurance they have purchased. For people like the Fogels, who are now dealing with serious injuries to three of the four remaining family members, this is significant because their financial needs could be very significant. A severe head injury, for example, could leave its victim permanently disabled, requiring retraining in basic life skills. If any of the victims is too badly injured to work, he or she will need some kind of financial help for life. That's one reason why accident victims come to our personal injury law firm -- to pass these steep financial costs on to the irresponsible people who caused them and the insurance companies that have promised to pay them.

Continue reading "Pennsylvania Law Governs Auto Insurance Coverage Dispute in Fatal Accident Case - Amica Mutual Insurance v. Fogel" »