Attorney Client Privilege and Pennsylvania Government Agencies

Posted in Legal Updates

In a recent unanimous decision, the Pennsylvania Supreme Court ruled that a government agency cannot assert lawyer-client privilege to protect records when the state attorney general considers those records necessary to fulfill his duties.   The Court went on to say that when the attorney general’s office looks into suspected wrongdoing at a state agency, the actual client of the agency’s lawyers is the public, not the agency’s employees.   The Court agreed with the state prosecutors who argued that government lawyers have special duties to act in the public interest and address wrongful official acts.

Company to Pay for Unsafe Infant Tylenol, Children’s Tylenol and Children’s Motrin

Posted in Legal Updates, Mass Tort, Medical Malpractice, Personal Injury

McNeil, a local Montgomery County  healthcare company which produced the medications infant tylenol, children’s tylenol and children’s motrin in its Fort Washington,PA location will have to pay 25 million dollars.  The company recently plead guilty because in 2009 when a consumer alert was issued,indicating there were black specs in the medicine,  the company failed to  initiate a corrective plan.  Consumers found what turned out to be nickel and chromium in the medication, which was not an intended ingredient. Upon investigation, the Food and Drug Administration found that there were more than 30 batches of children’s medication that had  nickel and chromium in them. The local Fort Washington company, which is a division of Johnson and Johnson, remains under a 2011 injunction and must  take corrective measures before it is permitted to reopen.

If a loved on has been injured by a defective drug contact Stark & Stark today for a free consultation.

Newly Legalized Immigrants may be Eligible for Social Security and Medicare or Medicaid Benefits

Posted in Employment, Legal Updates, Social Security

Immigrants who receive provisional legal status under President Obama’s new executive orders may be eligible for Social Security and Medicare or Medicaid benefits.  Under the President’s plan, U.S. residents can apply for provisional legal status if they have  lived in the U.S. for at least 5 years, can pass a criminal background check and have paid their share of taxes.

Provisional legal status, which must be renewed every 3 years, would allow qualified residents to obtain legal work permits and a Social Security number.  Consequently, they would pay into Social Security and Medicare through payroll taxes and thusbe eligible for benefits. Only those years after they obtain provisional legal status would count towards Social Security benefits and these individuals would have to work at least 10 years, legally, in the U.S., to receive Social Security Retirement benefits.

Nursing Home Arbitration Agreement Rejected By Judge

Posted in Legal Updates, Medical Malpractice, Personal Injury

Often nursing homes will require residents or their families to sign arbitration agreements before the resident will be accepted into the facility.   Such agreements vary but, in essence, they provide that, should the resident or their family believe that the resident has been the victim of negligence, abuse or neglect while at the facility, they agree not sue in court, but rather will resolve the claim via a private, binding arbitration.  An arbitration is a proceeding where the parties present their case to a neutral third-party, called an arbitrator (often a retired judge or experienced attorney), who then makes a decision and decides the amount of damages, if any.

Recently, a Berks County, Pennsylvania trial judge refused to enforce one such agreement, required by a Manor Care facility.  The judge concluded that this particular agreement was against public policy, because it was both one-sided and confusing.  The judge explained that cases involving injuries should not be the subject of routine arbitration unless both parties fully and completely negotiated and agreed to the final terms of the agreement.

By entering into these agreements, nursing home residents and their families must understand that they are giving up their right to have a future their case heard by a jury of their peers.  If you believe that you or a loved one has been the victim of nursing home negligence, abuse or neglect, contact the experienced attorneys at Stark & Stark for a free consultation.

Spousal Benefit

Posted in Legal Updates, Personal Injury, Social Security

If your spouse has already filed for his or her Social Security Retirement Benefit, and you have reached full retirement age (66 for the current crop of baby boomers), you can receive a monthly spousal benefit equal to half of your retired spouse’s full retirement benefit.  You can do this yourself without filing for your own retirement benefit, to which you will continue to contribute if you are still working.  The spousal benefit is not deducted from your retired spouse’s monthly check, so there is no diminution in the amount your retired spouse receives.

You can receive a monthly spousal benefit if your spouse is retired but you have not reached your full retirement age but if you take the spousal benefit before your full retirement age, you will be deemed to be filing for your retirement benefit, as well.  Your spousal benefit is then considered excess and it will definitely be less than half of your retired spouse’s full retirement benefit, and may even be zero.

Example:  Mary is going to be 66 next month.  She is working and intends to keep working for a number of years.  Her husband, John, is 70 and he retired a few years ago.  John’s full retirement benefit is $2,000 per month.  When Mary turns 66, she is entitled to half of John’s monthly benefit, $1,000 per month, despite the fact that she is still working.  Once she begins receiving her monthly spousal benefit, John will continue to receive a monthly benefit of $2,000 per month.

If you are interested in getting spousal benefits, you should make an appointment with your local Social Security Administration office to apply for the spousal benefit.

Commercial Drivers Physicals Only to be Performed by Certified Medical Examiners

Posted in Legal Updates

As of 2014 all new U.S. DOT physicals are required to be performed by health professionals who have qualified pursuant to stringent protocols and who are now listed on the “National Registry of Certified Medical Examiners”.  Mandatory U.S. DOT exams assess a driver’s condition to be able to competently and safely be behind the wheel of a commercial vehicle.   The exam includes assessing basic vision, hearing, muscle function, respiratory systems, and also assesses individuals for cardiovascular diseases or other health ailments that could affect the driver’s ability to operate such a vehicle.   Medical Examiners on the Registry are now required to maintain a certain level of competence and must attend periodic training sessions and go through a re-certification process.  If they fail to maintain these pursuant to Federal Standards, they will be removed from the National Registry.   It is critical when assessing a commercial driver’s competence/ability to operate commercial vehicles that their medical history and status of the medical certificate be assessed, and now with the new regulation the competency of the examiner is also critical.   Competency of the examiner is now based on training standards for these medical professionals who desire to perform commercial driver physicals.   Under the prevailing regulations, all Interstate commercial truck and bus drivers are required to undergo and pass a medical examination at least every two years in order to obtain/maintain a valid Medical Certificate, which in turn allows them to have an active commercial driver’s license.

As Secretary Anthony Fox of the U.S. DOT stated “safety is our highest priority and that every commercial truck and bus driver be qualified, alert and focused when they are behind the wheel”.

The Benevolent Gesture Act

Posted in Legal Updates, Medical Malpractice, Personal Injury

In 2013, the Pennsylvania legislature passed “The Benevolent Gesture Medical Professional Liability Act”, which is colloquially referred to as “The Apology Law”.  This statute allows a health care provider to apologize to a patient for a mistake or perceived mistake, or a bad outcome, without fear that the apology will be used against the health care provider in a medical malpractice lawsuit.  As long as the apology or benevolent gesture is not made after the lawsuit has been filed, or the apology is not also a statement of negligence or fault, it cannot be later used against the health care provider, in a court of law.

One of the intended results of the law was to lower the number of medical malpractice lawsuits filed, however, it has had little or any effect with regard to this statistic so far.

Lower Insurance Payments to Healthcare Providers Leads to Increased Medicare Spending

Posted in Legal Updates, Social Security

A recent study by researchers at Stanford University and Harvard University has shown that if a private health plan manages to negotiate lower prices with health care providers, they may make up the difference by providing health care to Medicare beneficiaries. The study examined data from more than 300 geographic regions in the U.S., including Medicare spending on inpatient and outpatient care as well as prescription drugs for fee-for-service beneficiaries.  The researchers found that a 10% lower private price for health care services is associated with a 3% increase in Medicare spending per member, per year, and 4.3% more specialist visits.

Surgical Complications vs. Surgical Mistakes

Posted in Medical Malpractice, Personal Injury

Not every complication which occurs during or as a result of surgery is actionable under the law.  Some complications are foreseeable and a risk of certain procedures. In addition, just because a surgery is unsuccessful does not mean that a surgeon was negligent.  However, many complications are the result of a preventable mistake, and if the patient has a complicated or prolonged recovery and requires subsequent surgeries to correct the mistake, that person may have a viable medical malpractice case.

Here are a few surgical errors that may be considered malpractice and should be investigated by a lawyer specializing in medical malpractice litigation.

  • Surgical Equipment Left Behind:  If a surgeon leaves behind a clip, a clamp, a needle, or even something larger, such as a hemostat or tweezers, that surgeon has been negligent.  If an infection results and/or subsequent surgery must be performed to remove the object, and there are sufficient damages, it may be worth investigating this claim.
  • Wrong Organ Removed:  If, for whatever reason, a surgeon removes the wrong organ or limb from the wrong side of the body, this is clearly negligence which should be investigated.
  • Organ and/or Tissue Damage:  Some tissue damage during surgery may be acceptable or necessary but if a surgeon accidentally cuts or damages an organ, or tissue, or a nerve, and this mistake results in substantial impairment to the patient, the surgery should be investigated

If you or a loved one has been injured due to a complication or mistake, contact Stark & Stark today for a free consultation.

Pedestrians Injured By Automobiles in Pennsylvania Not Bound By Limited Tort

Posted in Personal Injury, Vehicle Accident

I have previously written about the various exceptions to limited tort in Pennsylvania as contained in 75 Pa.C.S.A. 1705.  These exceptions allow drivers who have selected the limited tort option on their auto insurance policy to recover damages for pain and suffering as if they had elected the full tort option.  The most commonly applied exceptions are where the driver who caused the accident is convicted of DUI or operating a motor vehicle that is registered in another state.  In 2005, the Supreme Court of Pennsylvania effectively created an additional exception when it held that pedestrians injured by automobiles cannot be bound by the limited tort option.

In the case of L.S. v. Eschbach, 874 A.2d 1150, 1156-1157 (Pa. 2005), the Supreme Court considered whether an 11-year-old girl, hit by a car after exiting a school bus, was bound by her mother’s limited tort coverage. The Supreme Court determined that the girl, as an innocent pedestrian, was not bound by her mother’s limited tort election pursuant to § 1705. Id. at 1156. The Supreme Court noted that § 1705 is not written to apply to injured pedestrians, and a contrary result would do little to fulfill the legislature’s goal of promoting financial responsibility.  Id. at 1157.

If you or someone you know is injured in an automobile accident, contact the experienced attorneys at Stark & Stark for a free consultation.