Philadelphia Top Injury Lawyer Blog

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" »