Philadelphia Top Injury Lawyer Blog

A recent study of medical malpractice jury verdicts and settlements shows that Pennsylvania is the state with the second-highest dollar amount for medical malpractice payouts. As a Pennsylvania medical negligence lawyer, I help injured families sue for these payouts--an umbrella term for jury verdicts or (more likely) out-of-court settlements. The study, which came from medical malpractice insurer Diederich Healthcare and was reported in The Clinical Advisor, also looked at overall medical malpractice payout amounts, the type of injury that led to a verdict or settlement, the type of patient who was injured and the severity of the injury. The data comes from 2012 entries to the National Practitioner Data Bank, a database maintained by the U.S. Department of Health and Human Services.

The insurance company presented its data in graphic form, though the entire graphic was not typically included in media reports. Overall, $3.6 billion was paid out for medical malpractice claims in 2012, for a total of 12,142 lawsuits. Interestingly, the data shows that medical malpractice payouts have declined steadily since 2003, after a sharp rise between 1998 and 2001. Pennsylvania and New Jersey were two of the five states that represented nearly half (48 percent) of the amount of payouts; the others were Florida (number five), California (three) and New York (one). The vast majority of the payouts, 93 percent, came as settlements; any lawsuit is statistically most likely to be settled. And by far the most common injury in these cases was death, at 31 percent of cases; this was followed by significant (19 percent) and major (18 percent) permanent injuries, then quadriplegia, brain damage or other lifelong care injuries (12 percent).

Though this graphic was put out by a malpractice insurer with a financial incentive to portray medical malpractice lawsuits as frivolous, some of the data actually shows they're not. For example, the proportion of injuries that were categorized as minor and temporary; insignificant; or only emotional totaled 4.4 percent, suggesting that the claims were rarely frivolous. The steadily falling total amount of payouts suggests that if there was ever a malpractice costs crisis, it has been or is being resolved. The very high proportion of settlements suggests that high awards do not generally come from "runaway juries." And the fact that just five states represent half of all payouts suggests that there's no nationwide malpractice problem. Indeed, all of the top five states are high-population states. Pennsylvania may have a higher dollar amount not because we have any special malpractice crisis, but because we have a higher number of people.

I've written here many times about the dangers of calls for medical malpractice "reform." These are typically supported by insurance companies that don't want to pay injured people's claims. Unfortunately, their effect is to keep the most seriously injured victims from being able to claim fair compensation, via damages caps or complex requirements when filing a claim. As a Pennsylvania birth injury lawyer, I believe this data shows that rumors of crisis are greatly exaggerated.

Continue reading "Medical Malpractice Study Shows Pennsylvania and New Jersey Lead Nation in Payouts " »

Three months ago, federal Judge Judith Fitzgerald requested post-trial briefs for a Delaware asbestos case. Pending her ruling, the case appears to still be mired in the mud of decision making.

Fitzgerald spends her time as a United States bankruptcy judge in Pennsylvania's Western District and Delaware. Back in the second week of January she held an estimation trial that lasted a week. The trial was supposed to reduce the gap between the amount that the case's debtors (Bondex International, RPM International and Specialty Products Holding Corp.) believe they owe any future asbestos victims who file a claim and the amount future claimants assert that the bankrupt companies should pay them.

Prior to filing for bankruptcy, the debtors were asbestos defendants in the tort system. Their bankruptcy filing stops civil litigation and forces them to establish a trust fund to compensate future claimants. From January 7 to January 11, attorneys for the debtors and those representing the Official Committee of Asbestos Personal Injury Claimants pleaded their case to Fitzgerald in her 52nd floor courtroom in a Pittsburgh commercial tower. However, the case seems to be in limbo as the concerned parties await Fitzgerald's ruling, which is expected before she retires on May 31.

Fitzgerald must try to establish the disputed amount of the trust fund. The current claimants and future claimants say the fund should be about $1.2 billion. The debtors, on the other hand, say the figure should only be $116 million. The only recent activities on the court docket are minor filings and a few omnibus motions. Natalie Ramsey, a lawyer for Montgomery McCracken of Philadelphia confirmed the inaction. Ramsey is representing the Official Committee of Asbestos Personal Injury Claimants. She said there had been no activity since the estimation trial. The case will likely remain on hold until late May since the case cannot proceed without Fitzgerald's decision. Both parties have agreed to resist filing new motions or taking other steps until the ruling by Fitzgerald comes down.

In April, Fitzgerald held a hearing in which she asserted her intention to suggest to the next judge who gets the case that the involved parties return to mediation. Presently, Ramsey is not sure if the parties would switch their positions on their estimated damages or if further mediation would be necessary.

Fitzgerald must decide the amount of the debtors' future and present asbestos liabilities The claimants' position is that Fitzgerald needs to calculate the amount based on how much the debtors would have had to pay if they had remained in the tort system. The bankrupt firms' attorneys do not agree. Ramsey said that the claimants and debtors are in complete disagreement regarding how much future asbestos liabilities could run. Since the start of the negotiations, neither side has given any ground.

The official ruling from Fitzgerald could come down any time.

A wrongful death claim filed by a hunter's widow has been remanded to Bucks County Court of Common Pleas by U.S. District Court Judge Michael Baylson. The accident happened on November 29, 2010. The case was sensationalized when it was discovered that the Quakertown, PA, resident, Barry Groh, was mistaken for a deer and shot by David Manilla, a Worcester, PA, lawyer, who is also the nephew of Michael Marino, a former Montgomery County District Attorney. Because he is a convicted felon, Manilla was not supposed to be in possession of firearms whatsoever when he killed Groh on Manilla's land on opening day of deer season. Groh had permission to hunt on Manilla's property at the time of the shooting. Eyebrows were raised when it was revealed that Marino was a member of the hunting party. It is alleged that he did not act fast enough when Groh was shot and dying. No charges were filed against Marino or Manilla.

On Jan. 10, 2011, Barry Groh's widow, Theresa Lynn Groh, filed a suit claiming wrongful death against Manilla in Bucks County. Her suit claims he acted recklessly and carelessly on the day her husband was killed. She alleges that Manilla failed to take reasonable precautions to avoid the shooting, he was riding around with a loaded firearm on an ATV and he did not notify law enforcement personnel for 30 minutes after Groh was shot by Manilla.

Since then, she has also filed more civil suits in state court, including a complaint in trespass against Barbara Fletcher, who was Manilla's lover, a complaint for declaratory judgment against Allstate Insurance Co. and a complaint in trespass against Marino, Allstate Property and Casualty Insurance Co., as well as David and Vivian Manilla. These suits were consolidated by a Bucks County Common Pleas Court Judge for pre-trial discovery. Another member of the hunting party, Robert Monestero, was also sued by Groh. Monastero's attorney filed a motion to move the case to Philadelphia federal court. Groh had hoped to have Monestero deposed for the consolidated complaints against Manilla, Marino and Fletcher, however Monestero's lawyer said his client wouldn't testify until he had been made aware of the specific charge against him. When Groh finally filed a complaint against Monestero, his lawyer filed a motion to transfer the case to Philadelphia federal court.

Groh's attorneys argued that joining the suits in federal court would destroy citizen diversity, and the only forum where the cases could be tried simultaneously. They also said that should the cases proceed separately, the court's resources would be wasted on depositions and duplicate discovery.

Baylson said that Groh would be injured if the case was not remanded to state court. He also said that without the remand, Groh would have to "pursue two lawsuits in two separate court systems. . . although they were based on the same set of circumstances and facts."

Eastern District U.S. Judge Cynthia Rufe granted the motion of two health insurers to remand their Avandia pharmaceutical cases to the Philadelphia Common Pleas Court. She ruled that the GlaxoSmithKline removal to federal court had been premature.

Rufe's decision doesn't prevent the lawsuits from ever being removed to a consoldated ongoing Avandia Multidistrict litigation in federal court. For now, the complaints are returning to the civil justice division in Philadelphia thanks to a technicality.

Humana Health Plan Inc. and UnitedHealth Group Inc., the plaintiffs in the cases, were seeking remand because the lawsuits were started with the filing of a praecipe to issue writ of summons to take pre-complaint interrogatories, which is basically a pre-litigation tactic that portends litigation. However, the writ isn't a complaint, per se. In Rufe's April 17 memorandum, she came down on the side of the health insurers with her decision that removal of both lawsuits to the federal courts was premature.

Records show that in their pre-complaint interrogatories, Humana and UnitedHealth used practically identical language to state their mutual intention to sue GlaxoSmithKline and other pharmaceutical companies hoping for declaratory judgment related to the plaintiff's subrogation, reimbursement rights, recovery from GlaxoSmithKline in subrogation of their expenses for handling health problems that their members suffered due to Avandia. They are also seeking reimbursement from the members of their health plans who had already settled their Avandia or Paxil claimants. Furthermore, Rufe's memorandum states that UnitedHealth plans to sue on behalf of itself and other health insurers in a similar situation.

GlaxoSmithKline removed the lawsuits to federal court by arguing that interrogatories showed that the insurers' asserted claims fall within the scope of the federal court system under the guidelines of the Employee Retirement Income Security Act. The health insurers, on the other hand, maintained that removing their cases was premature because there had been no complaint filed. Therefore, under the Federal Rules of Civil Procedure, the removal was premature.

Rufe cited Third Circuit precedence in her ruling. She said that a mere summons cannot be used as an initial pleading to start the timeline for removal to federal court. She said that the District had previously ruled that a lawsuit cannot be removed before a proper complaint was served on the defendants. Since Humana and UnitedHealth never served the defendants a complaint, the notice of removal was too early, rather than too late. She further stated that the "operative document" for removal is the complaint, and since none had been filed, removal was premature.

Rufe also denied UnitedHealth's motion for repayment of counsel costs, saying that GlaxoSmithKline had a "colorable basis" for the actions it took and that the return of costs and fees was not proper.

As a personal injury attorney, I was intrigued to read about the testimony in the da Vinci robot lawsuit that recently began in California. Allegations have surfaced that Intuitive Surgical Inc. aimed their marketing campaign for the da Vinci robot at less skillful surgeons. In addition to the California trial, the US Food and Drug Administration (FDA) has begun checking into reported problems with the robot's performance, which include fatalities when the da Vinci robot was used during surgery.

Internal marketing documents named doctors who were regarded as possessing lesser skills when performing minimally invasive procedures, according to Bloomberg (4/18/13). Intuitive's director of marketing Ryan Rhodes testified that those surgeons were then targeted by the marketing department as the best candidates to purchase the da Vinci robot.

The California lawsuit was brought by Fred Taylor's widow. Fred died four years after having prostate removal surgery by the da Vinci robot. The lawsuit alleges that the victim died due to surgical errors that were caused because Intuitive did not properly train the surgeon who completed the operation.

In their defense, Intuitive claims that the physician should not have used the robot because the patient was obese. The doctor had been warned not to use the robot for laparoscopic surgery, testified an attorney for Intuit. The surgeon said he was never told not to use the da Vinci robot on obese people. The New York Times reported that the surgery took longer than 13 hours instead of the normal five hours. Taylor was left with lung and kidney damage.

The plaintiff's attorneys have argued that Intuitive's sales force recommended hospitals to set their standards lower so doctors who would not qualify otherwise would be able to get credentialed to use the robot. The Intuitive marketing team was instrumental in training and authorizing doctors to use the robot. The sales people were reportedly allowed access to operating room schedules, so they could hand-pick cases for which the surgeons could use the da Vinci robot. The Taylor family has already settled with the surgeon.

Intuitive Surgical touts the da Vinci system as being less invasive than traditional open surgery for such procedures as hysterectomies and prostatectomies. Doctors with shaky hands or tremors can perform procedures with the robot because they control the robot's three or four arms from a remote console.

In the April 9, 2013 issue, Time Magazine reported unusual events tied to the da Vinci robot. During one surgery, a patient was hit in the face by an arm of the robot. The FDA is investigating at least five deaths associated with the robot. Another man died from an internal infection after his intestines were punctured by the robot, said Time.

As reported by the Legal Intelligencer April 16, jury awards $700,000 to state trooper after being rear-ended at a red light in Philadelphia. In Dragotta v. Graham, plaintiff alleged that in August 2009, while stopped at a red light, a 1996 Ford Econoline 250 van, owned by PHS Corp., and operated by defendant, Dorsey Graham, struck the back of the plaintiff's car. At the scene of the car accident, defendant alleged that the when he tried to use his brake they failed, resulting in him being unable to stop before hitting the back of the plaintiff's vehicle. It was later determined that the brakes were fully operational. Defense did not dispute any liability, but in their pretrial memorandum, argued that plaintiff did not exhibit any signs of injury. Defense also argued that the accident did not effect plaintiff's job, as she has remained a state trooper even though promoted. Preexisting conditions tend to be a layered argument, that "but for" the accident occurring, plaintiff's already existing injury would not have been further complicated.

According to the article, the plaintiff's memorandum states that at the time of the accident, Dragotta complained of pain in her neck and back, and was taken to Hahnemann University Hospital. Plaintiff's private physician prescribed Flexeril, Vicodin, and Ibuprofen, to help alleviate Dragotta's headaches, back pain, stiff neck, nausea and night sweats. The plaintiff's medial records show that by March 4, 2010, she had visited her physical therapist regarding her injuries 49 times. Over the course of the following year, Dragotta had seen her chiropractor 57 times to treat her herniated disk, and numbness. Plaintiff argued that some of the injuries were aggravated by the accident. The plaintiff after several years of physical therapy was later referred to Dr. Steven Valentino, an orthopedic and reconstructive spine surgeon. Dr.Valentino testified to both currently treating the plaintiff and said in a May 2012 report that, "Dragotta will need spine surgery." As a Philadelphia personal injury attorney I was interested to read about the outcome of a pre-existing condition case before the Court of Common Pleas. The 12-person jury exhibited a deep understanding for preexisting conditions that are aggravated by further injury.

I understand first hand the time consuming recovery that can be required after a car accident. Making time for doctor visits in an already busy schedule can be both overwhelming and frustrating at times, none the less necessary. Common injuries after a car accident include, spine, back and neck injuries, concussions and traumatic brain injuries can also occur. Often times depending on the gravity of the car accident broken bones, lacerations, and possible internal injuries. Not all injuries sustained in a car accident are visible by the naked eye. Often times months, if not years of physical therapy is needed to get back to the mobility prior to the accident. As a Pennsylvania personal injury attorney, I want my clients to have the best representation possible, especially when preexisting injuries have been aggravated by a car accident.

During oral arguments before the Pennsylvania Supreme Court, regarding whether the Superior Court properly applied Wilson v. El-Daief, the court upheld that plaintiffs must name the cause of the injury in order to bring suit even if barred by time. The statute of limitations begins to toll upon discovery in medical malpractice cases, even if at the time of discovery it is unclear who is to blame. Pennsylvania Supreme Court Justice Max Baer insightfully asked, "What do we do when the plaintiff doesn't know who to sue?" As a Pennsylvania medical malpractice lawyer, I was very interested to see where the court would rule in regards to the time of when the plaintiffs' burden to identify the source of their injuries would begin to run. This can be particularly challenging when there are multiple complications, and therefore multiple sources of injuries occurring over the span of many years. According to the Legal Intelligencer reported April 16, at oral argument the justices upheld the Superior Court's decision to vacate the award. Holding that the Superior Court properly applied Wilson, that the statute of limitations begins to toll upon discovery, and in Garmin v. Heine, the suit was barred by Pennsylvania's two-year statute of limitations and therefore the verdict of $735,000 was vacated.

Under the Tortfeasor Identification Rule, a plaintiff has the burden to identify the source of their injuries. In Garmin, where the plaintiff brought suit against multiple doctors; Dr. Sphalerite Raschid, (regarding first sponge discovered in 1997 and second sponge discovered in 2006), and Dr. Laurie Heine, (regarding explorative surgery to remove first sponge in 1997), and the Chambersburg Hospital. The Superior Court held that the suit was barred by the statute of limitations. Kelly Garmin the plaintiff, discovered during a CT scan in May 2006 that she had a second sponge left inside her abdomen. Plaintiff had already undergone one surgery back in 1997 to remove a sponge that had been left after her first C-section in 1993. The lawsuit named all defendants as ones who either were negligent for failing to remove the second sponge during either the 1997 exploratory operation or the 1999 C-section.

The Pennsylvania Supreme Court upheld the Superior Court panel in Garmin v. Heine, which ruled that the statute of limitations had indeed begun to run upon the discovery of a foreign object, even though the plaintiff did not know who was the cause of the injury at the time of the discovery. Here, Garmin brought suit one year too late. This is an interesting ruling as it furthers the importance of taking the first step in seeking legal representation from an experienced Pennsylvania medical malpractice lawyer, as early in the process as possible, to ensure you are not barred by time.

Continue reading "Pennsylvania Supreme Court Considers Time Constraint When Defendant Unknown" »

As a Pennsylvania medical malpractice lawyer, I'm very interested in two cases scheduled for oral arguments soon in the Pennsylvania Supreme Court. As the Legal Intelligencer reported April 9, the high court will hear a high-profile medical malpractice case. The court's watchers are especially interested because Justice Orie Melvin has resigned after criminal charges for misusing her office to perform campaign work. (Pennsylvania Supreme Court justices are elected, not appointed.) That situation could create an even 3-3 split in the court on controversial topics, particularly since the six remaining justices are split evenly along party lines. As a result, court watchers are very interested in the outcome of Garman v. Heine, which concerns when a statute of limitations is tolled.

In Garman, plaintiff Kelly Garman discovered a surgical sponge had been left inside her body after several surgeries. However, it wasn't clear which surgery was responsible for the problem. As a result, it wasn't clear who was to blame, which determined when the statute of limitations--the deadline to sue--began running. In cases where an injury is discovered after it occurs, such as lost object during surgery cases, the statute of limitations generally begins when the injury is discovered. The trial court permitted Garman and her husband to go to trial, where they won a $735,000 jury award. However, the Superior Court vacated the award, finding that the Garmans waited too long to bring their case because the clock should have begun ticking upon discovery that there was an injury at all--not when they discovered who was to blame. The appeal to the state Supreme Court will focus on whether the Superior Court's ruling properly applied Wilson v. El-Daief, which found that the knowledge of the injury was sufficient to start the clock.

This is an interesting question, but as a Pennsylvania medical negligence lawyer, I don't believe a ruling against the Garmans is good for anyone in the long run. Of course, the defendant would prefer not to pay the judgment, but the rule contemplated by the Superior Court's ruling could give plaintiffs an incentive to sue everybody and then sort it out in court. As a result, a Supreme Court ruling upholding it could ultimately create more costly litigation for everybody. Indeed, a partial dissent in Wilson raised a very similar objection, saying the discovery rule and the certificate of merit requirement together essentially require plaintiffs to sue before they know whether they have a real injury or merely side effects. As a Philadelphia birth injury lawyer, I will be interested to see how the Supreme Court rules when the time comes.

Continue reading "Pennsylvania Supreme Court to Hear Arguments in Medical Malpractice Case" »

As a Philadelphia injury lawyer, I was sad to read about a recent car crash that took the life of a 66-year-old woman. According to the Delaware County Times, a four-car crash took place on Township Line Road in Haverford earlier this month, near its border with Upper Darby Township. The article says a car heading north made a sudden lane change, causing the car behind to swerve. Unfortunately, the second car crossed the center divider and crashed head-on into the victim's Chevy Malibu, which was then struck by another vehicle in the same lane. The driver of the Malibu was pronounced dead at the scene. The other drivers involved were sent to the hospital with injuries that were not life-threatening. The Haverford Police Department is investigating.

A car headed north toward Philadelphia apparently cut off a Ford Focus heading in the same direction around 12:30 in the afternoon. To avoid an accident, the Focus swerved, but ended up in the southbound lane, where it hit the victim's Malibu. The Malibu was then hit by a Ford Explorer SUV. A Ford Windstar minivan was also involved, but the article didn't specify its role. The victim, who was not identified pending notification of her family, was extracted from her car by firefighters and pronounced dead at the scene. The other drivers involved, also not identified, went to the hospital with injuries not believed to be life-threatening. The crash shut down traffic on West Township Line Road for nearly three hours.

This accident is unusual in that the responsibility seems to have been assigned to the driver of the vehicle that cut off the Focus. If that turns out to be true--after the police do their investigation--it would mean that all of the injuries and damages stemming from the crash are the responsibility of that driver. That would be true even if the vehicle never actually hit any other vehicle. Because I work with so many accident victims in my job as a Philadelphia accident lawyer, I'd be interested in seeing whether the insurance companies are willing to agree with that assessment. Insurance companies don't like to pay expensive claims--and a crash involving four cars and a death will be very expensive. As a result, sometimes they look for ways to paint the accident as the fault of someone else's insured. Pointing out that the first car never struck another vehicle might be such an excuse--but even if it didn't strike a vehicle, that doesn't mean it wasn't involved. As a Philadelphia personal injury lawyer, I hope everyone involved in the crash is able to get fair compensation without this kind of fight.

Continue reading "Delaware County Woman Dies in Four-Car Accident at Haverford Town Line" »

As a Pennsylvania medical malpractice lawyer, I was interested to see a news story about another bill in our state legislature on medical malpractice. According to the Pittsburgh Post-Gazette, both houses of the state Legislature are once again considering bills that would create "apology laws" for doctors accused of making medical mistakes. The bills forbid victims of medical malpractice from using a doctor's apology as an admission of legal liability for the mistake the doctor made. The goal is to permit doctors to apologize and explain a mistake without fear of being sued, its sponsors say. Similar bills have been introduced in the past without success. The Pennsylvania Association of Justice opposes the bill.

According to the article, 36 states have similar apology laws. This one, sponsored by various Republican state legislators, would make any "benevolent gesture" or admission by a health care provider or its agent inadmissible in a medical malpractice case. The admission or gesture would have to be about any discomfort, pain, suffering, injury or death related to the health care provider's care. Doctors are already permitted to apologize, of course. But many apparently choose not to, because they believe an apology for the injury will be perceived as an admission of fault, and that would come back to haunt the doctor and other medical entities if the patient decides to file a medical malpractice lawsuit. A spokesman for the Pennsylvania Association of Justice told the newspaper that the bill might prevent patients from using admissions of negligence--such as a doctor's explanation that she was golfing instead of answering the phone--in court.

I agree. As a Philadelphia birth injury lawyer, I am concerned that this apology law is written so broadly that it would block admissions that are not apologies and would otherwise be strong evidence of liability. The deck is already stacked in Pennsylvania against patients with serious injuries, thanks to several years of medical malpractice "reform" laws that make it harder and more expensive to pursue a lawsuit. This current proposal seems harmless on its surface--who would object to an apology?--but if it's not written carefully, it could take away the injured people's right to a fair trial. After all, making certain statements inadmissible doesn't change whether the doctor was negligent; it changes what evidence can be used to prove negligence. As a Pennsylvania medical negligence lawyer, I want my clients to have the best chance possible of proving their cases and winning the compensation they need.

Continue reading "Pennsylvania Legislature Considers New Apology Law Bill on Medical Malpractice" »

As a Philadelphia injury lawyer, I was interested to see reports of injuries from an unusual accident in the city. CBS Philly reported Feb. 1 that an explosion in the Brewerytown neighborhood injured four and closed a bridge over train tracks. The explosion left a two-foot hole in the bridge and sent chunks of concrete flying, prompting police to bring in bomb-sniffing dogs to look for explosives. When the dogs found nothing, an Amtrak electrical engineer concluded that the explosion was caused by melting icicles that came into contact with electrical lines from the Amtrak trains. The accident sent concrete flying into two pedestrians and an SUV with two passengers; three sought treatment for minor injuries. Service on Amtrak and SEPTA trains was temporarily suspended.

The explosion took place around 5 p.m. in the 3100 block of Cecil B. Moore Avenue. Chief Inspector Joseph Sullivan of the Philadelphia police said to outside observers, it looked as if a bomb had detonated; chunks of concrete were thrown long distances across the bridge. The driver of the SUV said he felt the ground start shaking and then saw a rock fly over his car. The police Bomb Disposal Unit, Amtrak investigators and the FBI all came to investigate. But after a K-9 unit found no explosives, an Amtrak engineer concluded that the cause was most likely weather: melting ice that hit a power line serving the trains. One of the pedestrians went to the hospital for treatment of minor injuries, and both people in the car asked to go to the hospital as a precaution.

I'm glad to see that nobody was seriously hurt, and that authorities don't believe there was a bomb. As a Philadelphia accident lawyer, however, I believe the authorities responsible for maintaining the bridge and power lines would be held liable for any serious accident that could have resulted from this. The law requires government agencies and private businesses to maintain their equipment so that it doesn't pose a hazard to innocent people who just happen to be passing by. For sidewalks, this typically includes clearing ice and snow that might pose a slipping hazard. In this case, responsibility might be laid at the feet of the agency that maintains the bridge, or perhaps the agency responsible for the power lines. Luckily, nobody was seriously hurt--but they easily could have been, and that could have triggered liability.

At Rosenbaum & Associates, we represent clients who suffered serious injuries or lost a loved one because of someone else's bad decisions. That includes negligence by government agencies that fail to maintain their properties in a safe condition. Suing a government agency is generally more complicated than suing a private business, because governments require injured people to file extra paperwork or exhaust administrative complaints before they can file. As a result, it's absolutely vital to talk to our Philadelphia personal injury lawyers early in the process, so we can ensure you don't miss any deadlines. A legal claim can help injured people and their families get the money they need for medical care, lost income, and other costs, as well as fair compensation for their injuries, pain and trauma.

Continue reading "Four People Injured by 'Freak Accident' Explosion of Philly Bridge During Rush Hour" »

As a Pennsylvania medical malpractice lawyer, I was interested to see a recent decision from Pennsylvania's highest court, dealing with expert testimony in medical malpractice cases. In Anderson v. McAfoos et al., the Pennsylvania Supreme Court took on the issue of whether a pathologist may give expert testimony in a malpractice case involving a doctor who sees patients. Mildred Anderson died of sepsis after surgery to remove a tumor by surgeon Gary McAfoos and his practice partners. Her estate had a pathologist as an expert witness, but defendants objected to this because pathologists do not see patients and thus, they argued, cannot evaluate the standard of care for a doctor who does. The trial court agreed and granted a nonsuit to the defendants. On appeal, the Pennsylvania high court found the plaintiffs' arguments were not preserved.

Anderson sought treatment in September of 2001 from McAfoos, who diagnosed a hernia and intestinal inflammation. Later that month, she went to the emergency room complaining of abdominal pain and shortness of breath, and blood tests suggested cancer. McAfoos performed exploratory surgery and found an intestinal tumor, and lab results suggested advanced cancer. Two weeks later, Dr. Thomas Serena, a practice associate covering for McAfoos while he was away, discharged Anderson despite a persistent low-grade fever and immature white blood cells. Her husband returned he to the hospital almost immediately due to abdominal pain. Serena undertook emergency surgery to address intestinal perforation that had let bacteria into Anderson's bloodstream. Nonetheless, she later died of sepsis caused by this. Her family sued in February of 2002, alleging malpractice because of the intestinal leak, failure to diagnose and treat it, and discharging her despite signs of infection.

A few months after this case was filed, the Pennsylvania MCARE Act substantially tightened the requirements for expert testimony in medical malpractice cases. A divided Pennsylvania Supreme Court eventually applied this to actions that were pending when the law was passed, including this one. The Andersons' expert was Dr. William Manion, a pathologist, who testified that the defendants should not have discharged Anderson when she had signs of infection. Neither party raised issues related to Manion's competency before trial, but after his testimony, the defendants argued that he was not competent under the new law because he doesn't see patients. After determining that the law did apply, the court sustained the objection and granted a nonsuit. The Superior Court upheld, with one dissent.

The Pennsylvania Supreme Court took up the questions of when a defendant should raise an objection under the MCARE Act and whether a pathologist is qualified under the MCARE Act to testify about the standard of care for a treating surgeon who discharged a patient without reading blood work. However, it started by noting that the Andersons never properly made and preserved arguments that Manion's credentials are adequate. As a result of that, the high court declined to consider such arguments now. It noted that the Andersons "have suffered a grievous loss," but said issue preservation rules are important and their attorney should be expected to keep abreast of developments in the law. On the timing issue it ruled that there is no general rule requiring objections to experts to be made prior to testimony, and that the court didn't create one in this case.

This is a disappointing ruling for Pennsylvania medical negligence lawyers like me. The high court noted that the Andersons had important interests at stake, but declined to give them their "day in court" on the merits of their case. Shortly after noting this, the decision emphasizes that their attorney should have been aware of the ruling that made this case subject to the MCARE Act--but of course, any failure by the lawyer was not a failure by the clients. As a Philadelphia birth injury lawyer, I would have preferred a ruling that at least permits plaintiffs like these to cure any problems with experts by finding a new expert.

Continue reading "Pennsylvania High Court Denies Appeal on Expert Testimony in Medical Malpractice Case - Anderson v. McAfoos" »

As a Philadelphia accident lawyer, I was interested to see that New York Jets coach Rex Ryan was involved in a crash here in eastern Pennsylvania. According to Lehigh Valley Live, Ryan ran a red light during evening rush hour, pushing a second car into a third car. Fortunately, no injuries were reported. The sports blog Deadspin, which was the first to report the story, said the tip it got claimed Ryan was speeding when he ran the light, but Ryan denied this and local police said the damage was not consistent with speeding. Ryan and the other drivers involved all stopped their cars, and police said the vehicles sustained only moderate damage. The New York Post later reported that Ryan got a warning from police.

The Bethlehem police department confirmed that Ryan was heading west on West 3rd Street Jan. 14 at around 6:15 p.m. Ryan allegedly went through the red light at Wyandotte Street, hitting another driver who had the right-of-way. That driver told police that the impact from that crash sent his car into a third driver who was making a turn. Police withheld the names of the other two drivers, but all three were stopped by the side of the road and cooperated with police. One witness reported seeing Ryan's red Mustang pass through the red light; police say Ryan did not deny that he ran it, although he did deny speeding. Their investigation was still open as of Jan. 22 because they were waiting to hear from another witness. A police source told Deadspin that the intersection is at a blind hill.

Indeed, if the accident had not involved an NFL coach whose team is famous for rude behavior, the crash would probably not have made national news. There's a discrepancy between Deadspin's tipster's report that Ryan was speeding, and the Bethlehem police's contention that he was not. But as a Philadelphia injury lawyer, I know it doesn't matter in a way--regardless of whether Ryan was speeding, he's legally at fault for the crash because he violated a traffic signal. The articles say he wasn't ticketed for the crash, but someone in his situation might very well be--and in fact, that driver could face more serious criminal and civil penalties if someone had been hurt. That includes a car crash lawsuit, which could be filed by one of the other drivers to recover compensation for injuries and property damage caused by the crash. Speeding would make it harder to defend such a case, but running the red light is enough to put Ryan at fault.

Continue reading "Jets Coach Rex Ryan Crashes Car After Running Red Light in Eastern Pennsylvania" »

The Pennsylvania Supreme Court has considered several recent cases that interest me as a Pennsylvania medical malpractice lawyer. One was Bruckshaw v. Frankford Hospital, in which Thomas Bruckshaw alleged that a medical mistake caused the death of his wife, Patricia Bruckshaw, at Frankford Hospital in Philadelphia. For reasons unclear even to the high court, the trial court removed one juror at the end of the trial and replaced her with an alternate, with no notice to the parties. The jury with the substituted juror ultimately found against Bruckshaw, but Bruckshaw moved for a new trial once his attorney realized what happened. The Superior Court held on appeal that this error was harmless, but the Pennsylvania high court disagreed and ordered a new trial.

Patricia Bruckshaw died two days after heart valve surgery at Frankford Hospital. Dr. Brian Priest was the surgeon and Dr. Randy Metcalf was involved in post-operative care. The opinion does not go into details about the allegations of negligence made by Thomas Bruckshaw. However, the lawsuit alleged medical malpractice, wrongful death and a survival action against the hospital and both doctors. The trial court's usual practice, followed here, was to not tell jurors which of them were alternates. However, Juror 12, a principal juror, went to deliberations and Juror 20, an alternate, was in her place on the jury's return. This was apparently done by a court officer with no notice to the parties or trial court, but no record of why is available. Juror 20 acted as foreperson when they delivered their verdict for the defendants. Shortly after the verdict, Bruckshaw's counsel realized there was a substitution and moved for a new trial, which was denied.

On appeal to the Superior Court, the defendants argued that the error was harmless, and the Superior Court agreed, affirming the denial of a new trial. However, the Pennsylvania Supreme Court reversed that decision. Bruckshaw argued that the substitution harmed him by denying him a chance to argue for another alternate, and because Juror 20 became foreperson and was the deciding vote. The high court first agreed that the substitution broke several rules and held that a juror may be substituted only by a trial court, on the record, in open court, with notice and for cause. It then agreed with the plaintiff that prejudice should be presumed from these mistakes because a showing of prejudice is impossible and the departure from the rules was "inimical to the integrity of our justice system." It drew an analogy to ex parte communications with the jury, which routinely cause new trial orders. It distinguished the case from others where it required a showing of prejudice, saying the lack of a record made it impossible to defer to the trial court's judgment.

As a Philadelphia birth injury lawyer, I applaud this decision. As the high court noted, a new trial is an extreme remedy. Everyone involved in the case will have to do all the work over again, extending the uncertainty as well as the expenses. However, I agree that the error in this case was serious enough to warrant it. In order to get a fair trial, both sides should be kept informed and have the right to oppose any moves by the trial court they feel affects their rights. The substitution here was in fact so irregular and so stealthy that it suggests some kind of underhanded behavior. An order for a new trial helps avoid enshrining that impropriety as an acceptable way to dispense justice in Pennsylvania, which Pennsylvania medical negligence lawyers and their opponents should agree is the right goal.

Continue reading "Pennsylvania Supreme Court Rules Juror Was Incorrectly Removed from Medical Malpractice Case - Bruckshaw v. Frankford Hospital" »

As a Philadelphia injury lawyer, I was interested to see a state Supreme Court decision that makes it a little easier for injured people and their families to win cases involving defective products. In Reott v. Asia Trend et al., the Pennsylvania Supreme Court ruled that if a defendant in a products liability case wants to argue that the plaintiff was highly reckless, the defendant must plead it as an affirmative defense. This puts the burden of proof on the defendant, the court said, rather than on the plaintiff to prove that he or she was not reckless. The plaintiffs in this case were Duane Reott, who was seriously injured while using a tree stand, and his wife, Patty Reott. The defendants argued that Duane Reott was highly reckless in his use of the tree stand, and the jury agreed. On appeal, however, the high court said the defendants didn't adequately prove that claim.

The tree stands at issue are tree-mounted platforms that allow hunters to sit in trees and watch for deer, so they are installed high above the ground. Duane Reott bought two tree stands through his brother, and used one without incident multiple times. He brought the other one, still new in its box, to another brother's house to install in a tree there. He climbed 25 feet and cinched the locking strap of the platform around the tree, then bear-hugged the tree and gave a small jump on the platform in order to remove any remaining slack from the strap. Reott had done this "setting the stand" many times without problems, but this time, the strap broke and he fell, crushing a vertebra and breaking his wrist. He and his wife sued four entities involved in manufacturing and selling the stand, alleging a manufacturing defect because the strap was merely glued on, rather than both glued and stitched like a seatbelt.

At trial, the court granted a directed verdict on the issue of the defect itself, but sent the issue of whether the defect caused Reott's injury to a jury. The defendants argued that Reott was highly reckless in "setting the stand," however, and the jury agreed. Reott appealed to the Superior Court, saying the defendants should not have been permitted to present evidence of recklessness as a rebuttal because it left him with the sole burden of proof. The Superior Court agreed, saying the evidence should have been presented as an affirmative defense, and ordering a new trial on damages. Defendants appealed.

The Pennsylvania Supreme Court agreed with the Superior Court that recklessness should best be presented as an affirmative defense in product liability cases. It drew a comparison between the established affirmative defense of assumption of risk; the less well-established affirmative defense of product misuse; and the closely related reckless conduct. However, it noted, such a defense could be incorrectly entangled with contributory negligence. Thus, it held that if a defendant wishes to plead highly reckless conduct, it must do so as an affirmative defense. Thus, the burden of proof is in the defendant to show that the recklessness was the sole or superseding cause of the injuries, the court said. It affirmed the Superior Court.

This ruling does not take away a defendant's ability to argue that a plaintiff was reckless in using a product--but it puts the burden of proof for that assertion on the defendant, where it should be. Putting it on the plaintiff would force the plaintiff to show that he or she was not reckless, and it's difficult to truly prove a negative. That's why, as a Philadelphia accident lawyer, I'm pleased by this ruling.

Continue reading "Pennsylvania Supreme Court Establishes Rule for Defense of Product Liability Suits - Reott v. Asia Trend et al." »