Philadelphia Top Injury Lawyer Blog

As a Pennsylvania medical malpractice lawyer, I was interested to read a case that ultimately allowed an adult woman to go forward with a malpractice claim stemming from when she was nine years old. In Unruh v. Cacchiotti, Lisa Unruh sued her former orthodontist, Dr. Dino Cacchiotti, for negligent dental work that eventually caused her teeth to fall out, requiring her to get implants as a young woman. Unruh was born in 1986 and began orthodontic treatment at the age of nine, in part because she had a severe underbite. She saw Cacchiotti, who started her on braces for her upper teeth in 1995, added lower braces in 1996 and removed both sets in 1999. During this treatment, many of Unruh's permanent teeth suffered a type of damage called root resorption and fell out, causing her to need permanent implants. When the family asked Cacchiotti about this, he told Unruh's stepmother that Unruh probably had a genetic predisposition that the braces exacerbated.

However, several dentists later told Unruh and her family that root resorption is caused by braces being kept on too long. In 2006, when Unruh was 20, the family started looking for an attorney. In the same year, the Washington legislature added an eight-year statute of repose for medical malpractice, and separately eliminated the tolling of the statute of limitations for minors in medical malpractice cases. Unruh filed a notice of intent to sue and Cacchiotti agreed to mediate in early 2007, tolling the statute of limitations by a year. He later backed out of mediation and Unruh continued her suit. In trial court, Cacchiotti successfully moved for summary judgment in the grounds that the statute of limitations had passed. Unruh appealed, and the case was joined by numerous amici, who were Washington state medical, insurance and trial lawyers' groups. The Court of Appeals eventually certified the case to the state Supreme Court for review.

The Supreme Court started by analyzing the three-year statute of limitations. This normally starts running with the last negligent act or omission, the court noted, which in this case could have been when Unruh's braces came off in 1999. However, because she did not turn 18 until 2004, it was tolled under the law of that time. Thus, the three-year statute of limitations began running in 2004 and ended in 2007. Because Cacchiotti agreed to mediation in 2007, the statute was tolled by another year. Thus, her suit filed in late 2007 was timely, the court said. It refused to apply the 2006 nontolling law to Unruh's case retroactively, saying new laws are applied prospectively unless the legislature intends otherwise. Because Unruh was no longer a minor when the nontolling law passed, it did not apply. For the same reason, it also rejected Cacchiotti's argument that the statute of repose should bar her claim; the new statute should begin when the law passed, the court said. Thus, Unruh's suit was timely and should go forward, it ruled.

This is good news for plaintiffs in Washington, because it gives them extra time to make the important decision about whether to file a medical malpractice claim. As a Pennsylvania medical negligence lawyer, I understand how important that decision is. A medical malpractice lawsuit is generally a long time investment, because it is very fact-intensive and likely to be fought hard by the doctor and his or her insurance company (as this case was). It's important for injured families to be sure they want to pursue a case before filing. This is likely even more important when the injured person was very young and, as in this case, does not fully understand her injuries. As a Philadelphia birth injury lawyer, I hope other people who were injured as minors in Washington act quickly to protect their rights to sue.

Continue reading "Statute of Limitations Correctly Tolled in Malpractice Case Involving Minor - Unruh v. Cacchiotti" »

As a Philadelphia accident lawyer, I was saddened to read about a ruling against a family struggling with a serious brain injury. In Covell v. Bell Sports Inc., David W. and Margaret Covell of Philadelphia sued a helmet manufacturer on behalf of their adult son, David F. Covell. The younger David Covell was riding a bicycle to his job as a schoolteacher when he was hit by a car at the entrance to the school's parking lot. He suffered such serious brain injuries that he is now disabled and his parents have been appointed as his legal guardians. On his behalf, they sued Bell Sports, the maker of his bicycle helmet, alleging that it was defectively designed and defectively failed to warn users about the risks of a blow from the edge of the helmet.

The appeal turned in part on the instructions given to the jury. Many states use a privately published standard called the Restatement of Torts, a collection of caselaw that states can voluntarily adopt in order to keep current with new decisions. Pennsylvania uses the Second Restatement of Torts, which was published in the 1950s. However, the law on products liability -- the cause of action in the Covells' case -- has seen so many changes since then that a Third Restatement of Torts: Products Liability was published in the 1990s. Importantly for this case, the Third Restatement allows manufacturers to defend themselves by arguing that their products meet applicable standards. Pennsylvania has not formally approved the Third Restatement, but the judge in the Covells' trial instructed the jury according to the Third Restatement.

On appeal, the Covells argued that the judge should not have used the Third Restatement, since it has not been adopted in Pennsylvania, and that federal safety standards for bicycle helmets were in any case inadmissible. The Third Circuit disagreed on both counts. In 2009, the Third decided in Berrier v. Simplicity Manufacturing Inc. that Pennsylvania will eventually apply the Third Restatement, making that the correct standard. It declined to overturn that, dismissing an argument the Pennsylvania Supreme Court's dismissal of a relevant case means it does not intend to take up the Third Restatement. The Third then addressed the Covells' other argument, that federal bicycle helmet standards used at trial are not admissible because they are not described in the admissible portions of the Third Restatement. Again, it disagreed, saying that the federal standards described issues like testing and labels that are within the admitted part of the Third Restatement. Thus, it affirmed the district court's judgment and ended the Covells' case.

At oral arguments in this case, the Legal Intelligencer reported, Third Circuit judges acknowledged that the situation is not at all settled for Pennsylvanians involved in products liability cases. That's why, as a Philadelphia injury lawyer, I would be very interested in clear input from the Pennsylvania Supreme Court. The Supreme Court is supposed to adopt or not adopt new standards, but the Third did it in Berrier because the state high court expressly declined to. Thus, it's possible that the court will ultimately come to the opposite conclusion, which would mean the Covells could have won their case if they had brought it later.

Continue reading "Court Did Not Err in Ruling Against Philadelphia Family in Defective Helmet Case - Covell v. Bell Sports Inc." »

As a Pennsylvania medical negligence lawyer, I frequently file cases alleging mental and emotional suffering as part of the damages my clients suffered. So I was interested to see a medical malpractice case from the Kentucky Supreme Court in which a plaintiff was required to turn over psychiatric records because she made the same allegations. In Dudley v. Jefferson Circuit Court, Sarah Dudley is suing a doctor and a medical center over an allegedly botched injection of anesthetic to her shoulder. As part of discovery in the medical malpractice lawsuits, the defendants requested medical records, including psychiatric records. The Supreme Court and lower courts all agreed that the psychiatric records were not protected by the psychotherapist-patient privilege.

Dudley alleges that her bupivacaine injection left her without full use of her arms and legs, and with pain, spasms and decreased strength and mobility. Her original complaint listed damages including "mental, physical and emotional pain and suffering and a loss of enjoyment of life." The defendants then sought her psychiatric and psychotherapy records. Dudley moved to deny this under psychotherapist-patient privilege, but the judge denied it. She then filed for a writ of prohibition against the release of the records, and the Court of Appeals denied it, saying the majority of the records are not privileged. She then appealed to the state Supreme Court.

That court gave her no relief. Under Kentucky law, psychotherapist-patient privilege is waived when, among other things, the patient asserts mental condition as part of a legal claim or defense. This waived the privilege, the Supreme Court said. The trial judge in the case found that "physical and mental conditions are at the heart of her claims," and the Supreme Court agreed that her claim for "mental... pain and suffering" makes her mental state open to discovery. It disagreed that her records should be protected because she claimed only "garden-variety" mental and emotional damages, rather than a specific mental condition. Citing caselaw from around the country, the Supreme Court disagreed. It would be "fundamentally unfair," the court said, to allow Dudley to allege mental suffering without opening records related to her mental state. Thus, the court upheld the lower courts' orders requiring the records to be discovered.

This case interests me as a Philadelphia birth injury lawyer because mental anguish claims are quite common in medical malpractice and other injury claims. I work frequently with people who have sustained permanent, disabling injuries because of someone else's carelessness, and this truly does create mental anguish -- feelings of sadness, anger, helplessness and more. These feelings clearly have nothing to do with any other psychiatric problems or treatment the injured person may have had before the injury, though the new injury could reawaken or exacerbate those feelings. However, opening those records could embarrass or upset a plaintiff who thought depression, substance abuse or other problems were buried in the past. Thus, I am not sure, as a Pennsylvania medical malpractice lawyer, whether it's a good idea to make those records discoverable in all cases.

Continue reading "Kentucky Supreme Court Rules Plaintiff in Medical Malpractice Case Must Turn Over Psychiatric Records - Dudley v. Jefferson Circuit Court" »

As a Philadelphia accident lawyer, I was disappointed to see a recent federal appeals court ruling denying an injured man a chance to pursue fair compensation from the company he says is to blame. In Roth v. Noralfco, David Roth sued a chemical supply company for various causes of action claiming it had a duty to design safer acid tank cars. Roth had a job at a York, Penn. paper company that included unloading tanks of sulfuric acid sent by Noralfco by rail. He suffered chemical burns to his face in 2004 when he attempted to unload a tank that was under pressure. The federal trial court granted summary judgment to Noralfco, saying the bulk of the claims are expressly preempted by the federal Hazardous Materials Transportation Uniform Safety Act of 1990, and the Third Circuit affirmed.

The HMTA regulates interstate commerce involving hazardous materials, giving buyers and sellers uniform regulations even between states. A section of the HMTA explicitly says that "Unless authorized by another law of the United States, a law... of a State... that is not substantively the same as a provision of this chapter... is preempted." It then goes on to list the areas of regulation that are preempted, which include what is a hazardous material, how the materials are packed and labeled, their shipping documents, notice of any spills and their shipping containers. The Third Circuit found that all of Roth's tort claims fall under the HMTA's purview, and were thus expressly preempted by the law. It dismissed Roth's arguments that his job was not "in commerce" and thus the HMTA did not apply, saying unloading is expressly part of the HMTA. Thus, it upheld the trial court's decision to grant summary judgment to Noralfco.

This decision is disappointing, because it means Roth cannot pursue compensation for what sound like some very serious injuries. In making this ruling, the Third Circuit did not rule on the merits of the case; it simply said there was no case because federal law has taken away the state-law remedy available to him. This leaves Roth and anyone else involved in shipping hazardous materials without recourse if they happen to be injured by dangerous materials like sulfuric acid while they are at work. As a Philadelphia injury lawyer, I believe our society can and should do better for the people who do this kind of dangerous job and rely on supervisors, colleagues or suppliers to stay safe.

Continue reading "Third Circuit Rules Workplace Accident Lawsuit Preempted by Federal Law - Roth v. Noralfco" »