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In this video, Anthony Zabicki, Shareholder in Stark & Stark's Accident & Personal Injury Group, discusses the various issues you need to consider if you or a loved on are every involved in a medical malpractice case. Mr. Zabicki also discusses the necessary components for a successful medical malpractice case such as the assistance of medical experts and health care professionals.
As most people are aware, litigating can be an expensive, time consuming, and unpleasant experience. I find that an important part of competently counseling clients or prospective involves helping them determine whether bringing suit is a good economic decision. I find that achieving a successful result for my clients involves taking the time to make a sober assessment of his or her claims, and dispelling myths about litigation which may distort the client’s decision making process in determining whether to proceed with a law suit. It is best for the lawyer and the client to discuss these aspects of the client’s claims before the decision to go forward with litigation is made.
Attorney’s Fees
Very often, clients will come to a lawyer soon after a dispute – looking to bring suit in order to win “justice” for a perceived wrong done to them. Just as often, these clients come to believe that the “justice system” is a misnomer because they are surprised to learn that winning “justice” can mean paying more in costs and fees than a judgment is worth. Many critics of the American Court system fault the “American Rule” for this belief that justice is often denied due to the costs and expense of pursuing a legitimate claim against a defense that appears to be less than meritorious. The “American Rule” employed in most American Courts holds that for most claims each party will bear the expense of Court costs and their respective attorney’s fees. This is contrasted with the “English Rule,” employed in the Courts of the United Kingdom and most Commonwealth countries, which provides that the loser in a case that proceeds through trial bears the expense of all costs and the winning party’s attorney’s fees in addition to its own.
Other than the customary contingent fee arrangements in personal injury and worker’s compensation claims, or specific fee shifting statutes, most claims will require that each party bear its own attorney’s fees and costs. The attorney’s fees and costs that will accrue during litigation are the major out of pocket expenses which must be weighed against the potential dollar value of any judgment, the likelihood of success at trial, and what I call the “collectability” of that judgment.
Potential Dollar Value of the Judgment
The next important factor to be weighed in determining whether to proceed with a lawsuit is the potential Dollar value of the judgment sought. I list this factor second because the comparison of attorney’s fees and costs against the maximum potential value of a judgment – a “homerun” – will often bring matters into perspective for the client considering pursuing litigation. Contrary to what many people may believe, damages in most kinds of cases are limited to an amount necessary to compensate the aggrieved party for his or her losses - and for only those losses that are reasonably foreseeable. Generally, Courts will not award a judgment for damages that are causally remote and merely consequential to the defendant’s conduct if the class of damages was not reasonably foreseeable by both parties. Punitive damages – damages imposed by the Court to punish and deter particularly malicious conduct – are only available under certain specific circumstances, and even more rarely awarded by Courts and Juries. A realistic assessment of the damages suffered by the client for which he or she may receive compensation is indispensable in making the decision to pursue a claim in litigation.
The Mental Health Procedures Act (MPHA) establishes the procedures for the treatment of mentally ill patients in the Commonwealth of Pennsylvania. Of course, medical malpractice can and does occur to mentally ill patients in Pennsylvania who are subject to the MPHA under a 301 or 302 commitment. The typical Plaintiff in a medical malpractice will have committed suicide while being treated at a facility pursuant to the MHPA
Unfortunately for mentally ill patients who are subject to the MHPA, the standard for pursing a medical malpractice claim is higher than a “regular” medical malpractice claim. The MHPA grants limited immunity to healthcare providers. Specifically, the MHPA provides, in pertinent part:
In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences.
50 P.S. § 7114(a). The granting of limited immunity to healthcare providers who provide services to mentally ill patients represents the legislature’s policy decision to ameliorate certain risks associated with providing these services in an “unscientific and inexact field” in order to facilitate the rendering of care to mentally ill patients in the Commonwealth of Pennsylvania. Allen v. Montgomery Hosp., 696 A.2d 1175, 1178-79 (Pa. 1997).
In order to overcome the limited immunity provision of § 7114(a), a plaintiff must demonstrate gross negligence on the part of the healthcare provider. In Bloom v. Dubois Regional Med. Ctr., 597 A.2d 671 (Pa. Super. 1991), the Superior Court explained and defined the term of “gross negligence” as it applies to the MHPA as follows:
It appears that the legislature intended to require that liability be premised on facts indicating more egregiously deviant conduct than ordinary carelessness, inadvertence, laxity or indifference. We hold that the legislature intended the term gross negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity and indifference. The behavior must be flagrant, grossly deviating from the ordinary standard of care.
Id. at 679 (emphasis added). See also Albright v. Abington Memorial Hosp., 696 A.2d 1159, 1164 (Pa. 1997) (adopting and affirming the Bloom definition for gross negligence) (emphasis added).
Additionally, the limited immunity provided by § 7114(a) extends to injuries suffered by third parties at the hands of mental health patients. See Goryeb v. Com., 575 A.2d 545, 549 (Pa. Super. 1990). For example, if you were injured by another patient in a hospital setting as a result of a hospital’s negligence in failing to supervise that patient and that patient was there subject to the MHPA, you would need to prove gross negligence against the hospital in order to recover for that injury.
In this video, R. Tyler Tomlinson, member of Stark & Stark's Accident & Personal injury group, discusses the different types of automobile insurance available (full tort vs. limited tort) and what protection each type will provide if you or a loved one are ever involved in an automobile accident.
Motor Vehicle Accidents in Pennsylvania - Part 2 from Stark & Stark on Vimeo.
Residents in Plumstead, Pennsylvania having been living with serious problems with their water since the June 29th fire that destroyed an industrial building on Stump Road. Homeowners believe water used to fight the fire and subsequent rains contributed to moving chemicals from the site into their drinking water.
It took an estimated 3 million gallons of water to put out the fire that destroyed the industrial building. The blaze continued to flare up over the course of about a week and firefighters were at the scene time and again to extinguish the hot spots.
Benzene and antimony were among the pollutants found in the drinking water at one Ann Drive home. Exposure to unsafe levels of benzene can lead to cancer, anemia, excessive bleeding and weaken the immune system.
Stark & Stark is trying to help people that were affected by this. Attorneys are investigating the damages that were suffered to individuals’ homes and possibly to their health.
If you need help or have additional questions, please call Stark & Stark, at 267.907.9600 or visit us on the web at www.StarkInjuryGroup.com.
In this video, Christopher M. Pyne, Chair of Stark & Stark's Motorcycle Group,discusses the need for motorcyclists to carry their own health insurance. Mr. Pyne warns that should you or a loved on be involved in a motorcycle accident, do not expect the other driver's insurance to protect you. More often than not, automobile insurance does not protect motorcyclists.
Motorcycle Law - Part 2 from Stark & Stark on Vimeo.
A Power of Attorney allows you to designate another person to act on your behalf to handle financial, medical, or legal matters in the event that you are unable to do so, or unavailable. The person that is so designated is referred to as your “attorney-in-fact”. There are different types of powers of attorney: a general power of attorney, a limited power of attorney, a durable power of attorney, a durable power of attorney for healthcare and a springing power of attorney.
General Power of Attorney. A General Power of Attorney allows you to designate an individual to conduct transactions on your behalf, including banking transactions, transactions related to real estate, entering contracts and disposing of or otherwise exercising rights related to stock.
Limited Power of Attorney. A Limited Power of Attorney allows an individual to act in your place only for a specific situation. A Limited Power of Attorney is often used in real estate transactions when one of the parties is unavailable.
Durable Power of Attorney. A durable power of attorney allows your attorney-in-fact to open bank accounts in your name, sign checks for you, make gifts on your behalf, run the daily affairs of your business, and make other very important decisions on your behalf. A durable power of attorney is nearly identical to a regular power of attorney, with one big difference: a durable power of attorney remains effective even after you suffer a disability. A regular power of attorney ceases to be effective if you become disabled.
Durable Power of Attorney for Healthcare. A Durable Power of Attorney for Healthcare grants your attorney-in-fact the right to make decisions regarding your medical care in the event that you are unable to do so due to unconsciousness or mental incapacity. (The Durable Power of Attorney for Healthcare can be incorporated with the Durable Power of Attorney (for financial and legal matters) if you desire to use the same attorney-in-fact for both, or can be two separate powers of attorney if you desire to have separate attorneys-in- fact).
Springing Power of Attorney. A Springing Power of Attorney allows you to designate a time in the future (most often on disability) when the Power of Attorney will become effective. A Springing Power of Attorney is often used in the event that an individual does not feel comfortable with immediately having someone able to act on his or her behalf as attorney-in-fact.
A Durable Power of Attorney is preferred. A properly drafted Durable Power of Attorney will help protect you in the event that you suffer an accident, injury or illness that leaves you unable to handle your personal, legal, medical or financial affairs. In the event that you suffer an accident, injury or illness that leaves you unable to handle your affairs, and you do not have a properly drafted Durable Power of Attorney in place, it is likely that your loved ones will need to go to court to have a guardian appointed for you, which can be very expensive.
In this video, Elliot Kolodny, Shareholder in Stark & Stark's Accident & Personal Injury Group, discusses the many factors which can cause children to suffer from birth injuries. Birth injuries can result from a lack of oxygen during labor and delivery, difficulties descending through the birth canal, and improper distribution of prescription medications during pregnancy.
Birth Trauma Litigation - Part 2 from Stark & Stark on Vimeo.
When you are at a casino having a good time, the last thing you think about is being hurt. However, thousands of casino patrons are hurt every year.
Most people are hurt when they slip and fall because of a wet casino floor. The marble floors may be beautiful, but the casino’s employees know that they are also very slippery when wet. Unfortunately people can be seriously hurt when they fall.
Patrons can also be hurt when they are confronted by individuals that become drunk at a casino bar. The casinos have an obligation to make sure their premises are safe for everyone. Casinos are obligated to stop serving people if they are drunk.
Most casinos have incredible security systems. While you are inside the casino, you are almost always being watched by the “eye in the sky” - a video camera. These videos may be very important to proving your case later in court.
If you are hurt at a casino, you should strongly consider hiring a Philadelphia based law firm, like Stark & Stark, P.C. The casinos can be sued in Philadelphia. This is usually better for you than suing a casino in their own town, like Atlantic City. Would you want a jury filled with people that work in the casino industry deciding your case?
There are three principal types of tenancies related to the ownership of real estate. Perhaps the most popular, and most familiar, is the joint tenancy. If two persons own a property as joint tenants, upon one person’s death, the other person automatically owns all of the interest in the property. There is no limit on the number of persons that can hold property as joint tenants. If a husband and wife own a property together and add their child to the deed, each will own a one-third interest in the property. Upon one of their deaths, the two surviving persons will each own a one-half interest in the property.
In the event that a joint tenancy owner is sued, and a judgment is entered against that owner, the owner’s interest in the property is subject to attachment by the creditor. In addition, any co-owners can bring an action to divide the interest in the property, and attempt to force the other owners to sell their interest.
A tenancy in common is where each owner of the property has an undivided interest in the whole of the property. However, upon the death of any owner, his or her share will pass to his or her decedents by will or by intestacy. Unlike a joint tenancy where each owner owns an equal portion of the property, tenancies in common do not require equal ownership. For example, in a tenancy in common, there could be three owners with one owing 50%, one owning 30% and one owning 20%.
A form of ownership allowed in many states is the tenancy by the entirety. In this type of ownership, only a husband and wife may own the property. The advantage of a tenancy by the entirety is that, in the event that either the husband or wife is sued (individually), a creditor may not take action against the property while it is held jointly by the husband and wife. In addition, neither the husband nor the wife may divide the ownership by deeding his or her interest to another person. Further, in order for a mortgage to be placed on the property, both the husband and wife must sign the loan documentation.
In some states, if there is no tenancy stated, there is a presumption that the owners are tenants in common, and if one person dies, then his or her interest in the property will need to be probated, even if the decedent desired for the property to pass to the surviving co-owner (including the spouse).
As you can see from the above, tenancy should not be taken lightly. We recommend a careful review of all property deeds on a regular basis to ensure that the properties are properly held in accordance with your desires.
How can we help? Any information you provide is considered confidential and will not be shared outside of our firm.
