Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

The history of asbestos litigation is, at its core, a tale of corporate greed. At the beginning of the 20th century, a lot of products were being manufactured with asbestos due to the fact that it was inexpensive and easily obtainable. These characteristics combined with its properties of extreme durability and resistance to heat made asbestos an ideal material for use in various insulation and building materials. However, it was soon discovered that the benefits of asbestos were accompanied by a serious downside.

As early as the 1930s, industry groups began to discover the dangers of prolonged asbestos exposure. Research uncovered a direct and irrefutable correlation between inhaling airborne asbestos fibers and a potentially fatal lung disease. However, this research also showed that, following exposure to asbestos, it could take anywhere from 20 to 40 years before the disease could be detected and diagnosed. Due to this latency period and the fact that the use of asbestos was so widespread and profitable, corporations were in no hurry to change their practices even in light of the inherent dangers of the product.

In 1970, the Occupational Safety and Health Administration (OSHA) began regulating the use of asbestos, in part through establishing permissible exposure levels (PEL’s). However, the use of asbestos has not been completely banned. The first lawsuits relating to asbestos exposure were filed in the 1970s. To date, new cases continue to be filed in Philadelphia and around the country. In fact, there have been several multimillion dollar asbestos verdicts in Philadelphia alone within the last year.

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Pennsylvania Law does not allow you to sue your employer for negligence. Therefore if you are injured at work as a result of fault of your employer, the only benefits you may be entitled to are Workers Compensation benefits. However, quite often, people are injured at work due to the fault of someone other than their employer. For example, lets say you are working in an office for company A. While in the office, you slip and fall on water that was spilled by a delivery person who worked for company B. The employee of B noticed the water but did not clean it up or warn anyone the water was there. You may have a negligence action for your injury (a/k/a personal injury claim) against company B for spilling the water. In addition, you have a worker’s compensation claim against company A since you were injured in the course of your employment

In the negligence action, against company B, you can recover for items including but not limited to the difference in your wages, future wage loss, pain and suffering and out of pocket medical bills. In the workers compensation action against A you are entitled to receive a portion of your pay check while you are unable to work and to have your medical bills related to the work injury paid for. Both of these claims can proceed at the same time and relate to each other.

Therefore, it is important to have an attorney that practices both workers compensation claims and personal injury matters.

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You may have read or heard about a legal case that was resolved through either the Mediation process or the Arbitration process. Many of you may not understand the difference between these two types of proceedings. Often for the purpose of expediting the resolution of a case as well as reducing the ultimate cost of a jury trial lawyers will agree to submit their case to either an Mediator or an Arbitrator. In part one of this blog I will describe the Mediation process.

The Mediation process starts when the lawyers who represent the various parties to a law suit believe there is a reasonable likelihood that a case can be settled, however, they also believe it might be helpful to have an objective third party, a Mediator, involved in the settlement negotiation process. The parties then agree to the Mediator. A Mediator is usually a lawyer who conducts mediations as a major part of his legal practice. The process involves a meeting attended by all lawyers and usually by the parties themselves although there is no formal testimony presented. The Mediator listens to all sides of the dispute and attempts to move the parties toward a settlement of the claim. The Mediator does not make a final ruling or decision in the case but rather points out to the parties his thoughts regarding the strengths and weaknesses of the case and where the parties are in agreement or where they disagree. By this process it is hoped that the parties will gain the perspective of someone who has no interest in the claim itself and that the discussions will help move the parties toward a resolution, or at least help limit the issues in dispute. Mediations have become very popular in the last several years because of the speed of the process, their rate of success and the reasonable costs associated with the procedure.

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Medical malpractice can take on many forms. Sometimes a doctor does something that actually causes a problem like prescribing the wrong medication or performing surgery on the wrong limb.  Other times, the doctor fails to properly diagnosis the patient’s problem.  Many times a client comes to us complaining that a doctor failed to properly read an x-ray, pap smear, EKG, blood test  or other diagnostic test.  In such a case the doctor did not cause the patients problem.  Instead, the doctor’s failure to make the proper diagnosis prevents or delays the patient’s treatment.

This scenario often comes up in cancer cases.  Let’s say a doctor or laboratory misreads a patient’s pap smear and says that it is normal when it is not.  As a result the patient develops cervical cancer and ultimately dies.  Of course, the doctor did not cause the cancer which killed the patient but the failure to properly interpret the pap smear denied the patient an opportunity to treat her condition and possibly avoid the tragic outcome.

In Pennsylvania we call these “loss of chance” cases.  In other words the doctor’s malpractice took away the patient’s chances of avoiding a bad outcome.  A skilled lawyer can make the difference in these types of cases.  First, the lawyer must be able to established that the doctor failed to timely diagnose the patient.  Second, the lawyer must prove that the delay was long enough to make a difference in the outcome.  For example, if a doctor fails to detect lung cancer on a chest x-ray but 1 week later another doctor makes the correct diagnosis the one week delay would not make a difference in the patients outcome.  On the other hand sometimes even very short delays can make all the difference.  For example, a delay of even a few  hours in diagnosing bleeding in the brain can make a huge difference.

In order to determine whether you have a case for delayed diagnosis it is important for the attorney to look closely at the specific facts of each case.  Therefore, if you believe that a doctor, lab, hospital or other health provider failed to timely diagnose a disease or condition it is important that you contact an attorney immediately to see if you have a case.

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Although many people who apply for social security disability benefits (SSDI) and supplemental security income benefits, are understandably dismayed at the amount of time it takes for their application or appeal to be processed, there are a group of specific conditions which warrant a quick review and decision.  This process is called Compassionate Allowance and it’s purpose is to provide benefits quickly to applicaants whose medical conditions are so serious that they clearly meet disability standards. 

Examples of these conditions are: fatal cancers, Tay Sachs Disease, early Alzheimers and other rare diseases, most of which are fatal.    The time frame for receiving a fully favorable decision if you or a loved one has one of the Compassionate Allowance Disabilities is usually 3 months or less. There is no special application required for Compassionate Allowance.  The process is triggered by the medical conditions noted by the applicant on the application which are  documented in the medical  records submitted.

There are currently 88 conditions which now qualify for Compassionate Allowance. A list of these conditions can be found on the social security website.

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Thanksgiving is just around the corner.  We will all be traveling to see family and friends.  Hopefully, we will all be eating a lot.  Here are some common sense safety tips that we should all follow during the holiday season:

1. Be safe on the roads.  Thanksgiving is the busiest travel period of the year.  You need to be extra careful when driving.
2. If possible, try to leave a day early to beat the traffic. 
3. As always, do not drink and drive.  
4. Keep your eyes on the road.  Do not drive while talking on a cellphone or sending text messages.
5. Buckle up.  If you wear your seat belt it reduces the risk of a fatal injury by half.
6. Be careful when cooking.  Thanksgiving is the leading day for cooking fires according to the National Fire Protection Association (NFPA).  When cooking, you should keep young children away from the kitchen.  Try to cook on back burners and turn pot handles in to prevent accidental spills. 
7. If decorating with candles, never leave them burning in an unattended room.  

Thanksgiving should be a fun, safe, and happy time for everyone.

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When evaluating a claim against a mental health provider, it is vital to consider the implications of all provisions of the Mental Health Procedures Act, 50 P.S. § 7107 et seq.   One such provision, 50 P.S. § 7111, serves to create a confidentiality privilege that is far broader in scope than the traditional doctor-patient privilege.  The Supreme Court of Pennsylvania has held that this privilege extends to all documents relating to regarding one’s treatment, not just medical records.  Zane v. Friends Hospital, 836 A.2d 25, 32 (Pa. 2003). 

Due to its broad nature, mental health providers may attempt to invoke this privilege in an effort to withhold documents that would otherwise appear to be well within the scope of discovery.  We recently dealt with such an issue in a professional negligence action against a mental health provider arising out of an assault and battery committed by a patient while in the care of the provider.  In this case, the provider objected to our simple request for an incident report relating to the assault on the grounds that it was subject to the broad confidentiality privilege discussed above.  Eventually, we were able to obtain a copy of the report after convincing the provider that the privilege did not apply because the incident report was entirely unrelated to the treatment of the patient.  However, we were met with far more resistance on this issue than we could have imagined.

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Just a few years ago, Pennsylvania was moving towards the monitoring of “preventable serious adverse events” or “never events” in acute care facilities in Pennsylvania. Progress on “preventable adverse events” has been inordinately slow but substantial in the Commonwealth. Unfortunately, the progress coincides with financial strains. The Pennsylvania Health Care Cost Containment Council reported this year that Pennsylvania acute care hospitals experienced a reduction in net income of $865 million from FY08 to FY 09. The loss was largely due to losses in investment income and other non-operating income. 

The problem for patients will be whether healthcare providers in this environment will be willing to take measures needed to make meaningful improvements in the quality of healthcare at a time when providers face the prospect of not being paid for poor care. 

On June 10, 2009, Pennsylvania finally passed the Preventable Serious Adverse Events Act, simply Act 1. P.L. 1, 36 P.S. §§ 449.91 - 449.97. This was a major piece of legislation for the Commonwealth and its impact will be sweeping. Whether this heralds in a new and improved system remains to be seen since it is still in its infancy. Specifically, while the effort is intended to improve the quality of care, in the short-term it is likely to cause a serious disruption in that quality. Much will depend on the extent to which the patients and their loved ones advocate for proper care.

The language in Act 1 is sweeping. The events at issue are described in Section 449.92 as:

An event that occurs in a health care facility that is within the health care providers control to avoid, but occurs because of an error or other system failure and results in a patient’s death, loss of body part, disfigurement, disability or loss of bodily function lasting more than sevn days or still present at the time of discharge from the health care facility.  The events shall be included on the list of reportable serious adverse events adopted by the national quality forum ir in a bulletin provided by this act. 

Three agencies in Pennsylvania are charged with duties including DPW, the Department of Health and the Department of State. 

Under the terms of Act 1, not only will the health care provider be prevented from seeking payment from either the patient or the payor (such as insurance company) but they cannot charge for services to correct or treat the condition. A separate provision has been made for nursing facilities. DPW is charged with the responsibility for these entities and issued a proposed bulletin for public comment on October 16, 2010. The bulletin lists 26 specific events as diverse as Stage 3 and 4 pressure ulcers acquired after admission to the nursing facilities and falls while being cared for in a nursing facility.  

The Department of Health is responsible for updating the list of reportable events adopted by the National Quality Forum and investigating complaints against health care facilities. The Department of State is to investigate complaints against providers other than facilities such as individual physicians.

For patients, the bottom line will be the impact on the quality of medical care. On one hand, will the implementation result in deterioration in quality of care by some providers?  Much will depend on monitoring and enforcement of the provisions of the act to prevent the premature discharge of patients, a rise in re-admissions and under-reporting/ non-reporting of events.

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USA Today recently reported that drowsy driving causes more than 5,500 traffic deaths a year and is a factor in nearly 17% of all fatal crashes - a much higher toll than previously estimated, according to a new analysis of federal data.

The analysis from AAA Foundation for Traffic Safety of National Highway Traffic Safety Administration (NHTSA) data from 1999 through 2008 finds a much higher prevalence of drowsy driving in deadly crashes than earlier studies.  A 1994 analysis found it was a factor in just 3.6% of fatal crashes, and NHTSA says it plays a role in 2% - 3% each year.

Clearly there is no question that drowsy driving is dangerous.  If you are tired, you should pull over immediately. 

Solve the Problem of Drowsy Driving

Reconsider your options before getting behind a wheel:

• Ask a friend for a ride or call a cab
• If you're arriving home from a business trip and feel too exhausted to drive find a ride and pick your car up from the airport the next day
• If you are a late-night worker, consider taking public transportation to and from work

Think about your sleep schedule. Americans tend to be sleep-deprived. As a culture, we tend to prioritize getting the job done over our health and our sleep. The result is highways filled with drivers who did not sleep much the night before.

Schedule breaks

For commercial drivers or others on a long road trip, take a break every few hours. A short break or even a power nap can greatly help your alertness

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Every year both adults and children are injured on rides in amusement parks and are looking for compensation for those injuries. Most people assume that an amusement park is responsible for whatever injuries would take place on their rides.  However, in Pennsylvania it is not such a straightforward process. The Pennsylvania legislature enacted the Amusement Rider Safety and Liability Act,  4 P.S. § 501-507, which places many duties and responsibilities on the riders of the amusement ride, to also be responsible for their own safety.

Among other Sections of the Act, a rider may not board or dismount for an amusement ride, except in a designated area. A rider may not act in any manner contrary to posted and oral rules while boarding, riding or dismounting. Further, a rider may not engage in any reckless act or activity, which may intend to injure himself or others. A sole rider may not disembark or attempt to disembark from any amusement ride before, during or after movement of a ride has started. There are a variety of other things riders are prohibited to do, including being under the influence of alcohol or a controlled substance, trying to enhance the intended speed or course of direction for the ride, and other such prohibitions.

Violation of any of these rider responsibilities under the Amusement Rider Safety and Liability Act can prevent an injured rider from receiving compensation for their injuries. Section 504 of the Act states in essence that if there is proof that a rider sustained an injury in the course of knowing acting contrary to any of the prohibitions listed within the Act such actions shall be evidence of comparative negligence in a suit against the operator of that ride.

Therefore, under Pennsylvania Law, though it is not an Assumption of the Risk for individuals riding on amusement rides, and certainly injured persons can still recover for damages due to some sort of malfunction or other defect of the ride, it is important to know that riders are also responsible for their own conduct and can and will be held contributorily negligent if they engage in any action deemed to be improper under the Act, and could face a situation of no monetary recovery for injuries suffered on a particular ride.

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Last month I addressed the defense of “sudden emergency.”  This month I would like to discuss the defense of “sudden medical emergency” or “unforseen unconsciousness” defense.  This is a defense which is generally rarely used in motor vehicle cases.
 

Under Pennsylvania law, the sudden medical emergency defense, also called the “unforseen unconsciousness” defense, is a complete defense to an action based on the asserted negligence of a defendant driver of a motor vehicle.  See Norvell License, 85 D. & C. 385, 387 (CCP Lycoming 1953).
   

It is generally recognized that an automobile operator who, while driving, is suddenly stricken by an unforeseeable loss of consciousness is not chargeable with negligence ... However, if such an operator is aware that he is likely to lose consciousness, he may be charged with negligence.  The application of this exception is dependent, of course, upon the circumstances and conditions under which the attack occurs.

Freifield v. Hennessy, 353 F.2d 97, 98 (3d. Cir. 1965) (citations omitted).

In cases involving the sudden medical emergency defense or the “unforseen unconsciousness” defense, the defendant must produce evidence of the medical emergency as well as evidence that the medical emergency was not foreseeable.  See Pagano v. Magic Chef, Inc., 181 F. Supp. 146, 148 (E.D. Pa. 1960).  Generally, the cases where the sudden medical emergency defense or the “unforseen unconsciousness” defense have been used successfully involved major medical events such as a stroke, heart attack, death and epileptic seizure.  The medical records and testimony have to support the occurrence of a sudden medical emergency while operating a vehicle.  Moreover, the medical emergency must be unforeseeable.

For example, I offer the following hypothetical.  The driver did not sleep well and took medication which has a side effect of drowsiness.  The driver ingested this medication without reading the directions and without consulting with a physician.  The next day, the driver caused an accident because of a blackout.  Could the driver use the defense of “sudden medical emergency” ?  The answer is NO.   The fact that the driver blacked out was a foreseeable consequence of ingesting medication with a side effect of drowsiness and not getting enough rest the night before.

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If you are the victim of a work-related or non work-related incident and have been receiving benefits, or have a pending claim for damages, BEWARE: someone may be watching you.
 
For years now, if you had a claim the insurance company responsible for compensating you would often hire somebody to spy on you. They would hire a company to follow you around, looking into your windows, trying to videotape your every move. Insurance companies have no problem invading your privacy. 
 
Recently, insurance companies have developed a new weapon in tracking your movements. They do this by invading social networking sites. We all know these social network sites like Facebook, My Space and Twitter and the impact of these sites can be enormous. Facebook maintains over 400 million active accounts and they advertise that they post over three million photos very month. My Space boasts over 100 million active members and Twitter has six million active members. It has been estimated that 75% of people active on-line in the United States are involved in active social networking sites. 
 
Insurance companies are directing defense lawyers to invade these social network sites. They are looking for anything that can throw doubt or attack your pending claim. They are often able to get this information without going through any legal process. If you are involved in a social network site and have not restricted access to your personal page, your information is available to anyone and everyone. 
 
Recently, a defense attorney was gloating when he informed me that he obtained photographs through a social networking site showing an alleged injured victim engaging in strenuous physical activity. He was able to obtain this information by simply turning on his computer.
 
If you have a current or pending claim and maintain a social networking site, you should take steps to ensure that the site is not publicly available to everyone. Avoid this invasion into your privacy by protecting yourself.

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Pennsylvania residents deciding which auto insurance package to buy should select a full tort policy say legal experts across the state. Full tort policies provide complete insurance protection if a policyholder is injured in an automobile accident.

Attorneys warn that a limited tort policy, which is the required minimum under Pennsylvania law, can be costly as it limits the policyholder's right to sue for pain and suffering compensation. Unfortunately, because most people are uninformed and only see the temporary financial benefits of a limited policy (limited tort holders save 15 percent on their premiums), many often fail to take advantage of full tort insurance.

Full tort gives policyholders the unlimited right to sue for pain and suffering for any injury received in an accident. Insurance experts recommend that policyholders also insist on uninsured/underinsured motorist insurance for protection in case of an accident with another driver who is not insured. The combination of full tort and uninsured/underinsured motorist insurance offers full insurance coverage in Pennsylvania.   

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