Knocked Down and Injured by a Dog – Now What?

Posted in Personal Injury

Most people are aware that a dog owner can be sued if his dog bites you. But what if a dog runs up to you, jumps on you, and knocks you down, causing injury? That scenario highlights the difference between injuries from dog bites and injuries that occur from a dog attack or confrontation.

Pennsylvania law treats dog attacks differently depending on whether the dog is a “dangerous dog” and whether the bite caused severe injury or death. A “dangerous dog” is defined as one that has:

  1. Inflicted severe injury on a human being without provocation on public or private property.
  2. Killed or inflicted severe injury on a domestic animal, dog, or cat without provocation while off the owner’s property.
  3. Attacked a human being without provocation.
  4. Been used in the commission of a crime.

And the dog has either or both of the following:

  1. A history of attacking human beings and/or domestic animals, dogs, or cats without provocation.
  2. A propensity to attack human beings and/or domestic animals, dogs, or cats without provocation.

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Florida Supreme Court Strikes Down Cap on Medical Malpractice Damages

Posted in Medical Malpractice

The Supreme Court of Florida held that the state’s statutory caps on personal injury noneconomic damages in medical negligence actions violate the Equal Protection Clause of the Florida Constitution. The statute, section 766.118, set noneconomic damages caps of $500,000 per claimant in personal injury or wrongful death actions arising from medical negligence. If the negligence resulted in a permanent vegetative state or death, noneconomic damages were capped at $1 million. In cases not involving death or permanent vegetative state, the patient injured by medical negligence could be awarded up to $1 million, if the trial court determined that a manifest injustice would occur unless increased noneconomic damages were awarded, based on the special circumstances of the case, and a finding that the noneconomic harm sustained by the injured patient was particularly severe.

In striking down the damages caps, the Florida Supreme Court affirmed the decision of the Fourth District Court of Appeals in North Broward Hospital District v. Kalitan. The Broward County lawsuit was filed after dental assistant Susan Kalitan underwent carpal-tunnel syndrome surgery and suffered a perforated esophagus during the anesthesia process. A jury awarded $4 million in non-economic damages. The amount of the award was reduced by approximately $2 million based on the damages caps in the statute.

The 4th District Court of Appeals ruled that the damage caps were unconstitutional, noting the Supreme Court’s 2014 decision in Estate of McCall v. United States, finding that the caps in section 766.118 are unconstitutional in wrongful-death malpractice cases. The McCall Court found that the statute “arbitrarily diminished noneconomic damage awards based on the number of survivors and lacked a rational relationship to addressing the medical malpractice crisis.”

Based on the plurality opinion in McCall finding that there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary application of the statutory cap in wrongful death cases, the Court reached the same conclusion with regard to the application of caps in medical negligence cases. The Court found that the statutory caps in section 766.118 “unreasonably and arbitrarily limit recovery of those most grievously injured by medical negligence.”

The Court concluded that “because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis.”

Therefore, the Court held that the caps on personal injury noneconomic damages provided in section 766.118 violate the Equal Protection Clause of the Florida Constitution.

The four-member majority included Chief Justice Jorge Labarga and Justices Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince.

Justice Ricky Polston dissented, joined by Justices Charles T. Canady and C. Alan Lawson, arguing that “It is the Legislature’s task to decide whether a medical malpractice crisis exists, whether a medical malpractice crisis has abated, and whether the Florida statutes should be amended accordingly.’’

While some states continue to impose damages caps, Pennsylvania does not impose caps on damages in personal injury cases unless the case is brought against a Commonwealth agency. In fact, damages caps are otherwise unconstitutional under the Constitution of the Commonwealth of Pennsylvania.

What Does PA’s Medical Marijuana Act Mean for My Company?

Posted in Business & Corporate, Employment

Pennsylvania’s Medical Marijuana Act was enacted in May 2016 (the “Act”). Under the Act, patients with serious medical conditions, such as cancer, HIV/AIDS, Parkinson’s Disease, Multiple Sclerosis, and severe chronic or intractable pain, are authorized to use medical marijuana to treat their condition after obtaining a certification from a physician and an identification card issued by the Pennsylvania Department of Health. Medical marijuana may only be issued to an individual or an individual’s caregiver who has received the certification and identification card. Medical marijuana may not be smoked and may only be dispensed in certain enumerated forms.

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Hospital Must Disclose Fired Nurse’s Personnel File in PA Medical Malpractice Case

Posted in Medical Malpractice, Wrongful Death

Access to a nurse’s personnel file became a key issue in a recent PA medical malpractice wrongful death and survival action. In Snyder v. DeCesare, the Court of Common Pleas of Lackawanna County considered whether plaintiffs were entitled to disclosure of the personnel file of defendant Heather Shingler, RN. Plaintiffs alleged that their unborn child died in utero due to negligent fetal monitoring by the nurse, who was subsequently terminated from her employment with defendant Moses Taylor Hospital.

Plaintiffs sought a court order to compel production of the nurse’s personnel file, alleging a nexus between her termination of employment and her alleged negligent fetal monitoring. Defendants claimed there was no connection between the two events. Also, Nurse Shingler denied that her termination was related to the facts alleged in this case.

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Updating Reinforcing Steel and Post-Tensioning Standards

Posted in Personal Injury, Workers' Compensation

Industry stakeholders, contractors, and industry associations recently provided testimony at an OSHA public hearing regarding reinforcing steel and post-tensioning standards. As reported by The Ironworker, the rationale for pursuing new standards is:

  • The current OSHA standard written in 1971 is antiquated and only contains three references specifically pertaining to reinforcing steel and two for post tensioning.
  • Common hazards during reinforcing steel installation and post-tensioning operations are not addressed in current standards.
  • Fatality and accident trends indicate a direct correlation between accident causation factors and lack of specific regulations.
  • The usage of steel reinforced and post-tensioned poured-in-place concrete is expected to double.
  • The negotiated rulemaking process will produce the best safety standard and regulations through the cooperative efforts of OSHA, stakeholders and experts in the reinforcing steel and post-tensioning industry.

Protecting members during reinforcing steel activities is part of the “2017 Zero Incident” campaign. The goal of the campaign is to pursue safety standards that will prevent workplace incidents. Key safety provisions of the proposed OSHA standards pertain to reinforcing steel and post-tensioning standards and prevention of structural collapse during the hoisting process of walls and columns. The proposed text of the standard is available here.

Residents’ Return to 24-Hour Shifts Rekindles Controversy Over Patient Care

Posted in Medical Malpractice

On March 10, 2017, the Accreditation Council for Graduate Medical Education (ACGME) announced that first-year doctors will be allowed to work 24-hour shifts in hospitals starting July 1, 2017. The cap that has limited shifts to 16 consecutive hours of patient care since 2011 will be lifted. The 80-hours-per-week cap remains in place.

Balancing the logistics of physician training with the safety and needs of patients has been the subject of controversy and debate for decades. According to a recent article in the New England Journal of Medicine, the debate centers on the concern that longer hours mean less sleep and sleep-deprived residents might make errors. However, that is countered by other concerns about shorter work hours resulting in more patient hand-offs that could affect patient care.

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Osteo Relief Institute Jersey Shore Employees Failed to Wash Hands and Reused Syringes

Posted in Medical Malpractice

As reported by philly.com, New Jersey Department of Health investigators have released a preliminary report finding that that the Osteo Relief Institute Jersey Shore in Wall Township deviated from multiple infection control guidelines issued by the Centers for Disease Prevention and Control.

The report indicates that the clinic’s disregard of accepted hygiene practices likely caused 40 patients to develop septic arthritis of the knee following injections to treat knee pain. The clinic was closed in March but reopened two weeks later. The clinic treated up to 85 patients a day at the time of the infection outbreak, according to the report.

One physician at the clinic told health department investigators she did not wash her hands between procedures. Most troubling was the report’s finding that single-use vials were reused on multiple patients and leftover needles were put in the trash instead of in approved medical waste containers.

Lawsuits have been filed on behalf of several of the affected patients.

What are the Negative Consequences of Hoarding in a Community Association?

Posted in Community Associations

Hoarding is a psychological condition where: 1) individuals have difficulty getting rid of possessions that are no longer useful; and 2) efforts to discard these possessions and not acquire new items cause distress. Television shows such as Hoarding: Buried Alive and Hoarders display in alarming detail the negative emotional and physical impact of this condition upon the individual with the hoarding disorder as well as his or her family and neighbors.

The negative consequences of hoarding in a community association — especially a high-rise condominium — are very serious. Hoarding behavior can easily lead to unsanitary and unsafe conditions that extend far outside the unit where the hoarding condition has manifested. For example, collections of half empty food containers strewn about a unit can quickly escalate into a pest infestation and breeding ground for mold and other unwelcome guests. Piles of newspapers and other combustible materials in close proximity to heat sources become fire risks. The cumulative weight of hoarded items can even lead to structural problems. Doorways and hallways overflowing and otherwise barricaded by mounds of stuff can hamper the efforts of emergency personnel and management.

A community association that chooses to ignore a hoarding situation could be found liable for failing to take action if the hoarding situation leads to injury to person or property. Continue Reading

Pennsylvania Justices to Review Waiver of Liability in Triathlete Wrongful Death Case

Posted in Wrongful Death

The Pennsylvania Supreme Court will hear an appeal from the dismissal of a wrongful death lawsuit brought by the widow of Derek Valentino, a triathlete who drowned in a 2010 event organized by Philadelphia Triathlete LLC. The Court will determine whether the wrongful death claims brought by Mr. Valentino’s widow against Philadelphia Triathlete are barred by the liability waiver signed by him.

As part of the registration process for the triathlon, Mr. Valentino paid a fee and electronically executed the liability waiver assuming all risks of participating in the event. The swimming portion of the competition occurred in the Schuylkill River. Mr. Valentino entered the river on the morning of the event; his body was discovered in the river the following day.

In her wrongful death suit, Mr. Valentino’s widow claimed that Philadelphia Triathlete was grossly negligent and reckless. She maintained that the event organizers “failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train employees.”

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