Expert Testimony in a Medical Malpractice Case

Posted in Medical Malpractice

Often, medical malpractice lawyers are questioned by individuals who have had a bad outcome from a surgery or other treatment, and are seeking a potential lawsuit against a physician or other healthcare provider. However, just because a patient experienced a bad outcome does not necessarily mean that the healthcare provider was negligent. Sometimes, it merely means that the end result was not as good as the patient anticipated.

Pennsylvania law requires that the parties in a lawsuit present expert testimony at trial to support the existence of negligence on the part of the defendant healthcare provider. The expert must be qualified in the same area of expertise as the individual being sued. For example, you can’t have an expert dermatologist appear for either the plaintiff or the defendant if the case involves a possible mistake by a neurosurgeon. Both parties will need a neurosurgeon expert to testify.

Initially, the plaintiff must have an expert who reviews the medical records and can state that there has been a breach of the standard of care, in other words “negligence,” on the part of the healthcare provider. In addition, the expert must state that the aforementioned breach was the cause of the damages that the plaintiff claims occurred.

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The Importance of Parental Advocacy for the Autistic Student

Posted in Educational Law

We’ve often heard the colloquialism “the squeaky wheel gets the grease,” which is another way of saying that those willing to speak out and voice their discontent or concerns are rarely ignored and often rewarded with the changes they desired. This colloquialism has many applications, but none as apt as for the parents of children on the autism spectrum.

With diagnoses of spectrum disorders such as autism on the rise, it is important for parents and caregivers to take an active hand from the beginning in their child’s education. Federal law mandates that children with autism-spectrum disorders be provided a “free and appropriate public education” just as other students are provided. However, school districts and their personnel often fail to ensure this, or fail to enforce accommodations put in place for autistic students through Individualized Education Programs (IEPs).

Even though the law has classically seen schools and teachers as “in loco parentis,” which essentially means they are responsible to act as the authoritative role over children during the school day, parents of autistic children cannot sit back and assume school personnel have their sons and daughters’ best interests in mind at all times. School district budgets everywhere have been subject to decreases and cuts, which forces more and more teachers at these districts to wear many different “hats” throughout the day.

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Medicare Makes House Calls: The “Independent at Home” Project

Posted in Social Security

Medicare is now in its third year of testing their “Independent at Home” project, which was created by the Affordable Care Act. This program provides Medicare’s frailest senior citizen patients, who all suffer from multiple chronic conditions, with house calls by healthcare professionals.

These are Medicare’s most expensive type of patient, because they are often too debilitated or fragile to make the trip into a physician’s office, lab or x-ray facility on a regular basis. The program includes not just visits by physicians and nurses, but also social workers, mobile x-rays and lab work.

On June 18, 2015, Medicare announced that it saved more than $25 million in the first year of the study, because these seniors were able to avoid pricier hospital or emergency room care.

In 2013, Medicare paid for more than 2.6 million customized primary care house call visits, for approximately 8,400 patients, across its 17 programs nationwide. This program was designed to benefit both the patients, who would be able to stay comfortable at home, as well as the physicians. Provided that the physician meets the “Independent at Home” program’s goals, they would qualify for a potential share in government savings. This way, physicians who might lose out on a full day’s worth of in-office patients, and by extension their reimbursements, have a way to supplement their losses on days spent traveling to visit at-home patients.

There is currently pending legislation in Congress to extend the Independent at Home Project for another two years.

The Federal Protecting Tenants at Foreclosure Act

Posted in Foreclosure, Real Estate

In the aftermath of the 2008 financial crisis, one of the pieces of legislation that was intended to be considered “Main Street”-friendly, which is another way of referring to legislation that is supportive of locally owned small businesses and residences, was the Protecting Tenants at Foreclosure Act (“PTFA”).  In short, this statute provided protection for tenants who occupied residential real estate that was subject to mortgage foreclosure.

The PTFA permitted any occupant who was a non-relative of a foreclosure defendant who occupied real estate under an arms-length, bona fide lease for fair rental value, to remain in the property for the balance of the lease term. If the lease did not have a fixed remaining term, occupants were allowed to remain in the property for 90 days before a foreclosing mortgagee could commence ejectment proceedings.

Despite its good intentions, unfortunately the PTFA wound up creating more problems than it solved before it was eventually retired at the end of 2014, because it effectively turned foreclosing lenders into reluctant landlords.  Even worse, there was very little case law, be it federal or state, that arose to properly interpret the PTFA, as its originally written provisions were less than clear, and any case law that did exist often varied from jurisdiction to jurisdiction.  In Pennsylvania, virtually no case law existed that interpreted the PTFA.

This changed in August of 2015, with the entry of the trial court’s decision in Bosco Credit VI Trust Series 2012-1 v. Hofer, et al. (Blair County Court of Common Pleas, August 5, 2015), which was an ejectment case that called into question the applicability of the PTFA.  I represented the plaintiff in this case.

The Court eventually held that, considering the purported lease was not for fair rental value under HUD guidelines for the area, the protections of the PTFA did not apply, and therefore the ejectment of the tenant could proceed.

Although the Bosco Credit case has been appealed to the Superior Court of Pennsylvania, its existence represents what is very likely Pennsylvania’s first foray into the murkiness created by the PTFA.

Defendants Not Entitled to “Limitless” Access to Plaintiff’s Facebook Account

Posted in Legal Updates, Personal Injury

In previous posts, I have written about the ever-evolving status of Facebook discovery in Pennsylvania. To briefly summarize, Pennsylvania Courts have generally held that the party seeking discovery of Facebook contents must make a threshold showing of relevance that an individual’s Facebook account is likely to contain relevant information before conducting further discovery. Such a showing is most commonly made through the discovery of relevant information within an individual’s public Facebook profile. A recent decision out of the U.S. District Court for the Western District of Pennsylvania lends some clarity regarding the limits of Facebook discovery even after a threshold showing of relevance has been made.

In the case of In re Milo’s Kitchen Dog Treats, Civil Action No. 12-1011 (WD PA 2015), a class of Plaintiffs alleged that their dogs were harmed by treats manufactured by Milo’s. One such Plaintiff, Lisa Mazur, posted a Facebook entry on her public profile in which she allegedly blamed another manufacturer’s dog treat for the harm to her dog. Upon discovering this, Defendants sought further information from Mazur’s private Facebook profile.

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Court Rules that Sentinel Event Report to JCHAO is not Privileged

Posted in Legal Updates, Medical Malpractice, Personal Injury

UPDATE – Since I originally wrote this piece, the defendant in this case filed a motion for reconsideration and, in June, the Court granted that motion, ultimately reversing the previous decision regarding the sentinel event report. Continue to visit our blog for further updates on the developing law regarding the discoverability of JCHAO sentinel event reports, as well as other issues in Pennsylvania medical malpractice law.

In a case of first impression, the Lackawanna County Court of Common Pleas has ruled that a hospital’s Sentinel Event Report to the Joint Commission on Hospital Accreditation (JACHO) is not privileged and must be produced in litigation.

JACHO is a private, independent, non-profit organization that evaluates and accredits hospitals and healthcare organizations throughout the country. One of the things JACHO does is investigate and analyze “sentinel events.” Sentinel events are incidents involving patients, unrelated to the patient’s normal hospital course and treatment, which result in death or serious harm to the patient. Some of the more common “sentinel events” are surgical materials or devices retained or left behind inside patients, falls that occur at hospitals and hospital-acquired infections. When sentinel events occur, JACHO-accredited hospitals report them to JACHO by way of a Sentinel Event Report. JACHO analyzes the events and then works with the hospital to help them learn from the events and improve patient safety moving forward.

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Pontiff’s Visit to Philadelphia (Part II) – How Commercial/Retail Owners Can Best Manage the 2 Million-Plus

Posted in Real Estate

Click here to read part one. This blog was co-authored with my colleagues Tom Onder, Esq. and Jerry Nelson, Esq.

A lot of press has already been devoted to potential opportunities for the owners of residential properties in the Philadelphia area as a result of to the Pope’s visit in late September 2015. Considering the projected amount of available hotel/motel accommodations–approximately 30,000 units–pales in comparison to the expected 2 million-plus visitors, homeowners have been encouraged to become “short term landlords” and rent all or part of their properties to individuals visiting Philadelphia to see the Pontiff.

With that said, there has been little coverage of the potential effect that all of these visitors will have on commercial/retail property owners…in particular, those with large public parking areas, such as shopping centers that lie right outside the city center. Just recently, Mayor Nutter’s office announced a “traffic box” with boundaries from 38th Street to the west, South Street to the south, the Delaware River to the east and Girard to Ridge to Spring Garden to the north.

Further, regardless of whether the visitors are getting around Philly by foot, car or mass transit, they will need somewhere to stay, as well as eat and shop. This means that hotel accommodations, restaurant reservations and general retail traffic will surely increase. Given these opportunities to service the 2 million-plus coming to see the Pontiff, owners of any commercial/retail properties and parking lots should keep the following in mind to effectively manage the masses:

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Local Breweries May Have Another Venue to Market Their Beer

Posted in Beer & Spirits

On Tuesday evening, the Concord Township Board of Supervisors in Delaware County, Pennsylvania approved beer sales at the Wawa located at 721 Naamans Creed Road in Chadds Ford. Customers will be able to purchase up to two 6-packs of beer at the Delaware County store. The Naamans Creek Road store is the first Wawa in Pennsylvania to be approved for beer sales.

Beer sales at Wawa could mean a whole new and vast market for local beer brewers. If Wawa chooses to expand the sale of beer to its other locations, local brewers could put their product in front of a large new set of consumers.

But what does this mean for beer distributors in Pennsylvania?

Earlier this year, the PLCB declared that beer distributors are permitted to sell 12-packs of beer. The distributors are required to purchase the beer in 12-pack shipments in order to resell to the consumer in that quantity. This was a huge win for Pennsylvania distributors who had been limited to selling beer by the case or keg. While the Pennsylvania liquor code permits bars, supermarkets and convenience stores to sell beers by the 6-pack, it tends to be sold at higher costs than those charged by distributors.

Given Wawa’s vast reach and popularity in Pennsylvania, this could be the start of a whole new area of competition for beer distributors in Pennsylvania. Similar to a restaurant, Wawa would be permitted to sell beer from 7:00 a.m. to 2:00 a.m. Monday through Saturday, and 9:00 a.m. to 2:00 a.m. on Sundays, while beer distributors are generally limited to sales from 9:00 a.m. to 10:00 p.m. Monday through Saturday, and 12:00 p.m. to 5:00 p.m. on Sundays. It may also be more appealing for customers to make one stop at Wawa to purchase beer, food, gas and other everyday items, rather than making an additional stop at their local beer distributor.

The upside for PA beer distributors is that sales have not yet been approved by the Pennsylvania Liquor Control Board, and Wawa officials have stated that they are currently only seeking approval at the Delaware County location.

Failure to Restrain Vicious Dog Could Warrant Punitive Damages

Posted in Personal Injury

A recent ruling from the Court of Common Pleas of Lycoming County lends support to the proposition that a Defendant’s failure to restrain a dog with known vicious propensities is sufficient to support a claim for punitive damages.

In the case of Harrison v. Haueisen, No. 14-02,685 (CCP Lycoming County, April 2, 2015), Plaintiffs alleged that a dog biting incident involving Defendants’ dog had been reported to the police about one week prior to Plaintiffs’ injuries. It was further alleged that neighbors complained to Defendants’ about the vicious propensities of their dog and their failure to restrain it. Defendants admitted to police that their dog had previously bitten a child yet they failed to restrain the animal.

Defendants filed Preliminary Objections to Plaintiffs’ Complaint alleging, in part, that the above-stated facts were not sufficient to support Plaintiffs’ claim for punitive damages; the Court disagreed. In a brief opinion, the Court stated that in order to prevail on a claim for punitive damages, plaintiff must establish:

  1. The defendant “had a subjective appreciation of the risk of harm to which the plaintiff was exposed;” and,
  2. The defendant “acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchinson v. Luddy, 870 A.2d 766, 771 (Pa. 2005).

The Court then determined that the facts set forth in Plaintiffs’ Complaint were sufficient to allow a jury to award punitive damages.

The Court’s ruling serves to reinforce the fact that punitive damages may be an available remedy in particularly egregious dog bite cases. In my experience, many attorneys are quick to dismiss the potential for punitive damages. However, if supported by the appropriate facts, I believe that they can serve to significantly increase the value of a case.

If you or someone you know has been bitten or attacked by a dog, contact the experienced attorneys at Stark & Stark for a free consultation.

Are Recorded Surgeries the Future of Medical Malpractice Investigation and Medical Error Prevention?

Posted in Medical Malpractice, Personal Injury

In my blog post from January, I discussed the surgical “black box,” a device developed by researchers at the University of Toronto that would track a surgeon’s actions during surgery and record any errors. The purpose of the device would be to collect data during surgery that could later help shed light on why a patient had a poor surgical outcome and allow researchers to analyze why surgical errors occur in an effort to prevent future mistakes.

In this same vein, a lawmaker in Wisconsin, Rep. Christine Sinicki (D-Milwaukee), has now introduced legislation that would permit patients to have their surgeries audiovisually recorded. According to an article from the Milwaukee-Wisconsin Journal Sentinel, if passed, the bill would require healthcare facilities to give surgical patients the option of having their surgery videotaped.

The bill would also allow patients to execute advance directives indicating that they wished to have all of their surgeries recorded. The law would be named for Julie Ayer Ribenzer, a 38-year-old woman who died after receiving too much of the anesthetic propofol during a breast implant surgery. The Wisconsin bill is similar to a proposed New York bill, “Raina’s Law”, named for 19-year old Raina Ferraro who went into cardiac and respiratory arrest due to negligent anesthesia administration during surgery, which sought to require cameras in all operating rooms.

Surgical errors are all too common. Often times, these errors lead to catastrophic injuries and even death. Surgical black boxes, and the proposed Wisconsin and New York laws, may reflect a growing public concern that surgical errors are not being disclosed and that doctors and hospitals are not taking responsibility when errors occur. Sometimes, however, it simply may not be clear why a patient had a poor surgical outcome.

It would seem that allowing audiovisual recording in operating rooms would, if nothing else, provide additional data to help medical providers, as well as patients and their families, understand why something went wrong. But, doctors and hospitals don’t seem to agree. The Wisconsin Hospital Association and Wisconsin Medical Society have both indicated that they would be opposed to Rep. Sinicki’s bill. Some doctors have also shown resistance to bringing black boxes into operating rooms, out of concern that the recordings and data could later be used against them in a legal matter.

The topic of recording surgery is becoming ever more common. It may very well be the case that this is the future of medical malpractice investigation and medical error prevention.