In Georgia, by statute, a plaintiff must prove gross negligence, rather than just ordinary negligence, in order to prevail in a medical malpractice case alleging negligence in a hospital Emergency Room. Gross negligence is a higher standard than ordinary medical negligence, making it more difficult for a plaintiff to establish and, therefore, prevail in their case.
In Pennsylvania, medical negligence is established where a medical professional has deviated from or breached the applicable medical standard of care. The standard of care that applies to a particular medical decision or procedure must be established by experts who practice in the applicable medical specialty. For example, if the claim is that a radiologist delayed the diagnosis and treatment of a patient’s cancer by failing to properly interpret a finding on a CT scan, the plaintiff must present testimony from an expert radiologist as to what the standard of care required of the defendant radiologist under the circumstances. If the defendant radiologist failed to meet, or deviated from, that standard of care, he would have committed medical malpractice and will be liable to the plaintiff if it is proven that his medical negligence caused, or increased the risk of, harm to the plaintiff.
Gross negligence, on the other hand, requires something more; the plaintiff must prove that the defendant grossly deviated from the applicable standard of care. Again, this is a much higher burden for the plaintiff.
The George ER law states that the gross negligence standard applies to “emergency medical care in a hospital emergency department.” Therefore, the fact that the care occurred in the ER alone, does not trigger the use of the higher standard – the care must also be of an emergent nature. In other words, non emergency care that happens to occur in the ER, would not be subject to the gross negligence standard. If you presented to a Georgia ER with common-cold like symptoms that did not require emergency treatment, any care you received in that ER would not be subject to the gross negligence standard.
Recently, the Georgia Supreme Court unanimously decided that, when determining whether “emergency medical care” was involved, and therefore the ER gross negligence standard applies, an objective test must be applied. This means, simply, that it does not matter what the medical providers involved were thinking or intending at the time the treatment was rendered; their subjective belief about the kind of care they were providing is irrelevant. What matters, the Georgia Supreme Court explained, is the patient’s medical symptoms and whether they warranted emergency services.
In my last blog, I discussed how to determine eligibility for Medicare Parts A and B. This blog today will focus on Parts C and D.
Medicare Part C, known as a Medicare Advantage Plan, replaces Medicare Parts A and B through a health insurance plan offered by a private insurer. In order to be eligible for a Medicare Advantage Plan, you must already be enrolled in Medicare Parts A and B and must reside in the service area of the insurer with whom you are seeking coverage.
Additionally, if you have a Medicare Advantage Plan you will not need a Medicare Supplemental Plan, as Advantage plans usually cover more than what Medicare Parts A and B cover.
The enrollment period for a Medicare Advantage Plan is the same as the initial enrollment period for Medicare Parts A and B. Alternatively, you can sign up during the Annual Election Period from October 15 to December 7, for coverage effective January 1st of the following year. You can also enroll during a Special Election Period, if you qualify.
Medicare Part C is optional, and there is no penalty for choosing this alternative to the traditional Medicare Parts A and B. In addition, you will continue to make your Medicare Part B premiums even if you enroll in an Advantage Plan. Monthly rates and plan coverage will vary by the insurance company and your specific plan.
Medicare Part D, known as the Medicare Prescription Drug Plan, is prescription coverage and is available through private insurers, like a Medicare Advantage Plan, and it is completely optional. To be eligible to enroll in a Medicare Prescription Drug Plan you must have Medicare Parts A and B, and live in the service area for the plan in which you wish to enroll.
If you have any questions about Medicare and retirement benefits, it is recommended that you speak with experienced legal counsel to discuss your situation.
In most Pennsylvania counties, it is relatively simple to search through the appropriate recording offices and/or courts to see what liens may be present on a piece of real estate that is currently the subject of a mortgage foreclosure or a sale. However, it’s a rather dangerous assumption to assume that such inquiry will reveal the sum total of all possible liens on such real estate—unfortunately, that’s just not the case.
Instead, a wise individual should order a formal title search on the real estate from a reputable and experienced title searcher. Not only will this search show all of the “record” liens on the real estate, but most title searchers will also go the proverbial extra mile and look into liens that may not show up on record in Pennsylvania. This could include domestic relations arrears, PA corporate tax liens, and/or Department of Public Welfare/Department of Human Services liens for assistance.
A good title searcher will also indicate the presence of a recorded declaration of condominium, or documentation from a homeowners’ association. This information could point the way toward any liened sums due the condominium association or homeowners’ association.
In summation, if you have an interest in a specific piece of real estate, the title search can be worth its weight in gold… not only to see if there’s any public, lien-related documentation on the property, but to find out what most of us can’t see under the surface.
The question of whether a slip and fall that occurs within a hospital constitutes medical malpractice, rather than ordinary negligence, has been a much debated topic and one I have written about in depth before (See Professional vs. Ordinary Negligence in the Health Care Setting: Is It Time for a Bright Line Test? Medical Malpractice Law & Strategy. July, 2011). The distinction is important because, in Pennsylvania and other states, there are a number of procedural hurdles—which do not apply to an ordinary negligence case—a plaintiff must first tackle in order to successfully file and pursue a medical malpractice case. Whether a case is classified as medical malpractice or general negligence can have a substantial impact on the cost of litigation and strategy needed.
There has been some inconsistency in determinations among Pennsylvania courts, as well as courts in other states, on this issue. This makes it very difficult to determine or predict whether a hospital fall case will be deemed a medical malpractice and, therefore, subject to the medical malpractice procedural requirements.
In Texas, which has tough medical malpractice requirements similar to those in Pennsylvania, doctors and hospitals have historically tried to use those requirements to have premises liability—otherwise referred to as “slip and fall”—cases which occurred in hospitals dismissed on procedural grounds. Recently, however, the Texas Supreme Court effectively put a stop to this.
Shareholder Michelle Christian, member of the Family Law & Divorce Group, authored the article Navigating Divorce Custody and Support, which was published in Times Publishing on October 6, 2015.
The article describes the process of dividing marital property and assets. In Pennsylvania, during a divorce this property is divided “equitably.” This equitable distribution is determined based on what is fair regarding the facts of the case, including everything acquired after the date of marriage. Occasionally, this means these assets are divided 50/50, but it can also mean, 60/40 or even 70/30. This is determined by the situation and facts presented.
This same equitable distribution also applies to determining child custody during the divorce case. “Legal custody, which is the right to make major decisions for the child, can be shared, but physical time with each parent could vary.” Typically, this means the Pennsylvania courts will look for the best interests for the child in setting custody parameters, but there can be even more factors involved depending on the case.
You can read the full article by clicking here.
Stark & Stark congratulates Shareholder Carin A. O’Donnell, who was recently elected onto the Board of Governors for the Pennsylvania Association for Justice (PAJustice).
PAJustice began in 1968, originally called the Pennsylvania Trial Lawyers Association. The goal was to create “cohesive and effective statewide organization to uphold and defend the Pennsylvania legal system, including trial by jury.” Since then, PAJustice has become a nationwide leader amongst trial lawyer associations, aggressively protecting citizens’ rights while providing members with a wealth of resources and education.
At Stark & Stark, Ms. O’Donnell is a Shareholder and member of the Accident & Personal Injury Group, and she is a frequent contributor to the Pennsylvania Law Monitor.
Bianca A. Roberto, member of the Business & Corporate and Beer & Spirits Groups, authored the article Raise a Glass: Pennsylvania’s Archaic Liquor Laws are Finally Changing, which was published in the Philadelphia Business Journal on October 27, 2015.
The article describes the impact that local brewers, distributors and retailers of beer have had on Pennsylvania’s economy in the last year. This impact has been both significant and positive, as the beer industry brought more than $9.2 billion into the Commonwealth in 2014. Even more positive, the industry employs nearly 41,000 people, and also helps generate jobs in similarly aligned industries like agriculture, finance, insurance and real estate.
Despite all this growth, Pennsylvania has extremely stringent liquor laws. Luckily, this does seem to be changing slowly, as “the Pennsylvania Liquor Control Board (PLCB) declared that beer distributors are permitted to sell 12-packs of beer.” Previous to this, these Pennsylvania beer distributors had been limited to only selling beer by the case or keg, and 6-packs could only be sold in bars, supermarkets or convenience stores permitted to sell them, usually at a higher cost.
Ms. Roberto also added, “the Concord Township Board of Supervisors approved beer sales at the Wawa located at 721 Naamans Creek Road in Chadds Ford. If approved, customers will be able to purchase up to two 6-packs of beer at the Delaware County store.”
You can read the full article by clicking here.
Metro Bank v. Board of Commissioners of Manheim Township (Pa. Commonwealth Court 2015) dealt with the appropriate calculation for a transportation impact fee. Metro Bank was approved to build a bank in Manheim Township, and was required to pay an estimated transportation impact fee prior to the start of construction. This dispute is due to the amount of the transportation impact fee to be paid.
Metro Bank’s consultant determined that the new bank’s location would generate 110 peak hour trips with a pass-by rate of 57%. Thus, it was expected that 63 of the 110 peak hour trips would be generated from vehicles that were already driving and passing by the new development. A transportation impact fee is intended to offset the strain on a municipality’s roads when the development is installed in an area.
Manheim Township disagreed with Metro Bank’s estimation, and determined that the impact fee should be based on all of the 110 peak hour trips. The bank countered that the impact fee should only be based on the 47 additional trips into the development not resulting from vehicles that were already on the road.
The Court looked at the Administration of Impact Fee provision contained in Section 505-A of the Municipalities Planning Code and determined that nothing in that section required the municipality to exclude pass-by trips. Moreover, the Court determined that Metro Bank’s interpretation would lead to an inappropriate result because, by excluding pass-by traffic, the revenues generated by the impact fee would fall significantly short of the Township’s total costs.
Additionally, under Metro Bank’s calculation, the initial developer would pay for an unfairly high percentage of the increase in vehicular traffic to an area. Thus, the Court held that the impact fee should be determined by multiplying the per-cost trip multiplier by peak hour trips attributed to the new development, with no exclusion for pass-by traffic.
Medicare is often discussed on the news, but very little time is spent explaining how precisely patients can qualify. Medicare Part A covers inpatient hospital stays or care in a skilled nursing facility. Medicare Part B covers outpatient medical care, such as doctor visits. In order to qualify for Medicare Part A and Part B, you must be a U.S. citizen or a permanent legal resident for at least 5 years.
In addition to this, you must also meet at least one of the following criteria:
- You are age 65 or older and are eligible for Social Security – You become eligible for Social Security at age 62. There is a possibility that you may be eligible for Social Security benefits at an earlier age because you have a disability pursuant to the Social Security guidelines. If you are already receiving Social Security benefits, you will automatically get Parts A and B when you become 65. If you are not already receiving Social Security benefits, however, you must sign up for Medicare. You can do sign up three months prior to your 65th birthday, but no later than three months after your birthday. If you sign up at a later date, you will pay a higher premium for your Part B benefit.
- You become permanently disabled and receive disability benefits for at least two years –You automatically get Parts A and B 24 months after Social Security has declared you disabled.
- You have end-stage Renal Disease – This means you have permanent kidney failure and require dialysis or a kidney transplant. You must apply for Medicare if you meet this criterion. Enrollment is not automatic.
- You have ALS (Amyotrophic Lateral Sclerosis a.k.a. Lou Gehrig’s Disease) – You will automatically get Parts A and B the month your Social Security Disability benefits begin.
If you have any questions about retirement benefits or social security, it is recommended that you speak with experienced legal counsel to discuss your situation.
In a medical malpractice case, the injured patient, otherwise referred to as the plaintiff, must first establish that a healthcare provider owed a legal duty to the patient. All healthcare providers, whether they are physicians, nurses, therapists, etc., owe a duty of care to the patient.
The plaintiff must also establish what the appropriate level of care was under the circumstances. Failure to meet this appropriate level of care is ultimately what leads to the healthcare provider’s alleged medical negligence.
The first step in proving that a healthcare provider owed a legal duty of care to a patient is to demonstrate that there was a relationship between the healthcare provider and the patient at the time the alleged malpractice occurred. The relationship is one that is voluntary and entered into by mutual agreement. Typically, the way to support the finding that the healthcare provider-patient relationship existed at the time of the malpractice is with evidence from the patient’s medical records.
Additionally, testimony can be used to prove this relationship, by showing that the patient chose to be treated by the particular healthcare provider; that the patient submitted to examinations for the purpose of treatment of a certain health problem or condition; and that the treatment by the healthcare provider was ongoing.
A healthcare provider must prove that they used the degree of care and skill of the average healthcare provider with a similar specialty practice, taking into account the medical knowledge that is available to the provider at the time the alleged malpractice took place. For example, for a physician, the standard of care is based on what the average physician, who practices in that area of medicine (orthopedics, gynecology, etc), would customarily or typically do in similar circumstances. The standard of care is the first element of a medical malpractice claim.
If you or your family believes to have experienced medical malpractice, please consult experienced counsel immediately.