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

Typically, as we go through life, we make many changes to our auto insurance policies. Additional drivers and vehicles may be added to our policies as our families expand and our children begin to drive. Coverage limits may be increased or reduced depending upon our current economic situation. Finally, specific types of coverage are often added or rejected as we deem necessary. 

Due to the ever changing nature of insurance policies, attorneys often encounter difficulty in determining the types and amounts of coverage that were in effect on the date of an accident. For this reason it is important that you maintain documentation indicating the effective date of all changes to your auto insurance policy including the addition of any driver or vehicle and any increase, reduction, addition or rejection of insurance coverage. It is also vital that you maintain a copy of all renewal forms, waivers and other signed documents relating to your policy.

This is especially true when it comes to the rejection or reduction of coverage. Depending on the type of coverage, your insurance carrier may be required to have you sign a waiver indicating that you are knowingly rejecting or reducing coverage. Furthermore, in certain situations, your insurance carrier may be required to have you sign additional waivers as you make changes to your policy indicating that you still wish to reject or reduce coverage. If they fail to do this, the rejection or reduction may be deemed ineffective, entitling you to additional insurance coverage. 
 

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The U.S. Department of Transportation has recently proposed a new safety regulation aimed at eliminating blind zones directly behind vehicles that often hide the presence of pedestrians, especially young children and the elderly. The proposal, as issued by the national Highway Traffic Safety Administration (NHTSA), would require auto manufacturers to expand the driver’s field of view, allowing them to see directly behind the vehicle when the vehicle’s transmission is in reverse. NHTSA believes that auto makers will be prompted to install rear-mounted back-up cameras along with in-vehicle displays in an effort to meet the proposed standard. If this proposal is passed, these regulations will be phased in beginning in 2012, and all new vehicles will be required to comply by September of 2014.

NHTSA estimates that an average of 292 fatalities and 18,000 injuries are caused by pedestrian back-over crashes annually. Approximately 44 percent of these fatalities involve children under the age of 5 and 33 percent involve elderly people over the age of 70.

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As a follow up to a previous blog in which I discussed several things you should do if you are injured on someone else's property, here are a few things you should NOT do. First, avoid providing any statements to the property owner. Do not sign any statements or incident reports. Do not say anything that would imply fault on your part.

In many cases, following a premises liability accident, a claims adjuster will contact you to get more information about your injuries. Again, do not give a statement to anyone that contacts you. First, consult with a personal injury attorney that specializes in premises liability cases and will be able to advise you accordingly. Many adjusters are trained to try and persuade you to settle the claim immediately and sign a release, talk to a lawyer first.
 

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This time of year skiing, snowboarding and tubing are very popular activities. Each season, thousands of people head for the mountains and the slopes in Pennsylvania. Unfortunately, accidents and injuries often occur. Even more unfortunate, the victims of these accidents rarely have any legal recourse available against the ski resort, even if the owners or their employees were negligent in the design, maintenance or operation of the slopes. There are two levels of protection for ski resorts which prevent a lawsuit: (1) The Pennsylvania Skier's Responsibility Act and (2) The Release of Liability Forms.

In 1980, the Pennsylvania Legislature passed the Skier's Responsibility Act, which was specifically designed to prevent injured skiers from suing ski resorts. The Act recognizes that the sport of downhill skiing is inherently dangerous and that it attracts a large number of visitors to Pennsylvania who contribute to the economy. The Act states that the doctrine assumption of the risk applies to skiing activities. The doctrine of assumption of the risk stands for the proposition that someone who voluntarily engages in an activity known to be hazardous assumes the risk of being injured and cannot seek monetary compensation in Court if that harm actually occurred.

The Pennsylvania Supreme Court has determined that the Skier's Responsibility Act will relieve a ski area owner of responsibility for injuries resulting from any activities involved in the sport of downhill skiing such as skiing down a hill, boarding the ski lift, riding the ski lift up the mountain and exiting the ski lift. Legal responsibility is precluded even if it is alleged that some carelessness on the part of the ski area owner caused the injury, such as improper opening of dangerously icy slopes or improper operation of a ski lift.

In addition to the Skier’s Responsibility Act, ski resorts will require patrons to sign Release of Liability Forms. These forms usually include very broad and general terms which indicate that the patron is releasing the area from any potential claims arising out of injuries. The Pennsylvania Courts have consistently held that if these forms are clearly written and the Release language is prominent, the terms will likely be upheld. Essentially, the Courts have found that if you signed a form, your signature is a clear affirmation that you read it, understood it and agreed to its terms, including releasing the ski resort from liability.

Recently, the Supreme Court of Pennsylvania issued the opinion of Chepkevick v. Hidden Valley Resort, LLP, 2 A.3d 1174 (Pa. 2010). This case basically makes it impossible for skiers to pursue an action against ski resorts. In Chepkevick, the Supreme Court held that (1) the skier's fall was an inherent risk, such that action was barred by the doctrine of assumption of the risk and (2) the exculpatory clause in release was valid and enforceable. Essentially, the opinion is relatively broad and really makes it difficult to pursue cases against Ski Resorts. Specifically, the Supreme Court states:

The assumption of the risk defense, as applied to sports and places of amusement, has also been described as a "no-duty" rule, i.e. as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity. . . . .Our decision in Hughes made clear that this "no-duty" rule applies to the operators of ski resorts , so that ski resorts have no duty to protect skiers from risks that are "common, frequent and expected" and thus "inherent" to the sport of downhill skiing.  Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant- the Comparative Negligence Act is inapplicable- and there can be no recovery based on allegations of negligence.

 

The bottom line is that, although these activities are dangerous and negligence on the part of the facility owners or employees can make the activities more hazardous, lawsuits against ski resorts are usually barred by the Skier's Responsibility Act or by signed Release of Liability Forms.

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One of the first things a new client asks after they have suffered an injury as a result of someone else’s negligence is “what are the damages I can recover”? I am going to assume, for the purpose of this series of blogs, that the client has been involved in an automobile accident. The first in this series will address property or collision damage.

If a person is involved in an automobile accident and they are seeking legal representation it is likely that their car was damaged in the accident. Ultimately, the person who caused the accident will be responsible for paying either the cost of repairs or the value of the car on the date of the accident, whichever is less. If the cost of repairs is greater than the value of the car then the car is referred to as a “total loss”.

Occasionally, the insurance company for the party at fault for the accident does not evaluate and pay the property damage claim in a timely manner. This could leave the owner of the damaged vehicle with a car that is not driveable due to damage, or a car that is not driveable because it is a total loss. If the owner of the damaged vehicle has collision insurance it is often wise to have their insurance company pay for the property damage. Their insurance company will then recover the amount paid from the responsible party and reimburse their insured for any required deductible payment.

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More and more, workers are being forced to drive their own vehicles when performing during working hours in order to perform work activities and duties. However, less and less, employers are providing little or no protection for employees if they are involved in an accident.

This post is part four of a nine part series discussing what you should know when driving your car during work. This installment will discuss medical expenses for work-related motor vehicle accidents (You can view previous posts in this series online here)

The workers’ compensation insurance carrier is responsible for paying for any and all reasonable and necessary medical expenses needed in order to treat your accident-related injury(s). There is no other limitation on this benefit. If your work-related injury requires treatment for the rest of your lifetime, the workers’ compensation insurance carrier is responsible to pay the bills.

While you are receiving treatment, the workers’ compensation carrier may often try to challenge or deny medical treatments which you may need. If the carrier denies necessary treatment, you need to contact an experienced workers’ compensation attorney in order to obtain the necessary and needed medical treatment.

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Consider the following scenario:

A patient enters the hospital and is treated in the ER by Dr. A who diagnoses the patient with problem X and the patient is then released. The patient returns with worsening symptoms and is seen by Dr. B who again diagnoses the patient with problem X. The patient returns a third time and requires emergency surgery with a diagnosis of problem Y.

In this scenario, whether Doctors A and B ever find out about their misdiagnosis through a “feedback loop” or whether there are any efforts made to investigate the cause is anyone’s guess and sometimes only becomes an issue when the patient, frustrated over the lack of acceptance of responsibility, seeks recourse. 

Errors made in a medical diagnosis can be catastrophic, and in some cases, results in a patient’s death. The human impact of misdiagnosis cannot be overemphasized. Unfortunately for patients, medical errors are not always captured in data gathering efforts. In some cases, an organization’s culture does not lend itself to admitting them, investigating them or even taking corrective action. 

The Pennsylvania Patient Safety Authority in their September 2010 Advisory published an article “Diagnostic Errors in Acute Care” examining these errors in acute care settings. 

One of the problems the Authority found is that data gathering efforts do not always capture events caused by diagnostic errors. Such deficiencies notwithstanding, the Authority embarked on an effort to look at those events that would fall under the rubric of “diagnostic errors” between 2004 and 2009. The Authority, in its own study, found five categories which accounted for the most common cases of misdiagnoses: cancer, fractures, pulmonary embolism, acute coronary syndrome and appendicitis. The objective was to understand the processes that led to the errors.

Rates of such errors have been found to vary widely by specialty. Emergency department rates, for example, have been found in the range of 0.6% and 12% compared to other fields, such as pathology, where the rates are below 5%.

Autopsy studies have shown that diagnostic error rates can be significant. In one study, a median error rate of 23.5 % was found while in another 10-12 % and in a third 14%.

And the cost is similarly staggering. For example, one insurance company study cited in the article stated that the cost of such errors during the period of January 2005 through July 2007 amounted to $127 million in contrast to a price tag of $125 million for all other categories of patient injuries considered “high severity”.

The Authority’s September article cites a number of reasons why this area of patient safety has not been given proper attention. A patient may simply be unaware that he has been misdiagnosed if there are no consequences to his health. Further, a patient may simply walk away from a practice and seek treatment elsewhere, so the provider and the health system, in general, is never informed of the error. A third reason rests with the deficiency of what is termed a “feedback loop”. Because there is limited data readily available concerning diagnostic errors, providers may not be made aware of their errors.
   
According to the Patient Safety Advisory’s study, a lot depends on the organization’s culture and whether such feedback serves to result in change, either by the individual (such as thinking beyond the most obvious diagnosis) or organizationally (such as screening patients who are returning to the ER with recurring complaint within a 48 hour period). The absence of such feedback leads to overconfidence in diagnostic conclusions that go unchecked. 

Although they found many factors at work which contribute to diagnostic errors, the Authority concluded that healthcare facilities themselves can go a long way in minimizing them, ensuring that the following are in place:

• Implementing interventions that establish strong and effective feedback loops between and among physicians concerning diagnostic accuracy
• Ensuring that all steps in the diagnostic testing phase occur correctly and that all results are communicated back to ordering physicians and patients
• Acknowledging the lack of feedback mechanisms in healthcare facilities and seeking ways to give and receive collegial diagnostic feedback
• Accepting the possibility of diagnostic error ...lead[ing] to greater metacognition and recognition of diagnostic error when it does occur
• Involving patients in the diagnostic process

Such processes are critical to improvements in patient safety, which are necessary in order to prevent future incidents of pain, suffering, injuries and deaths.

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Some people, when they apply for Social Security Disability (SSD) benefits, are surprised to find that they cannot qualify for disability benefits because their disability arose after their “date last insured”.  This means that the time period available to them to qualify for these benefits expired after they stopped working but before the disability began. 

Social Security is, in this respect, no different from privately owned insurance.  You need to pay into Social Security in order to obtain disability  insurance coverage.  You pay for your insurance coverage and at some point in time after you stop paying, your coverage ends.   Your “premiums,” in this case, are your payroll taxes and the coverage is disability insurance. 

As an example, Barbara is 50 years old and has worked since she was 18.  However, From 1990 through 1996 she only worked sporadically, and part-time, so she could stay home with her young children.  Her social security payroll taxes were minimal during this time period. She  has an injury to her shoulder in 1996.   As this injury occurred “on the job” she receives worker’s compensation benefits and is out of work for several years.  She is able to work after this time, but does not choose to do so.  In 2002, 2 years after he worker’s compensation case is settled, she is diagnosed with Parkinson’s Disease.  In 2003,  she applies for social security disability benefits, based upon her symptoms from Parkinson’s Disease.  Unfortunately, she finds out her “date last insured” was December 1, 2001.  That is, because her contributions to social security were minimal during the years she stayed home with her children, and were non-existent during the years she was out-of-work with her shoulder injury, her social security disability coverage ended on December 1, 2001.  She cannot collect disability benefits for a disability, no matter how severe, that arose after this date.

Before you apply for social security benefits, you can find out your “date last insured.”  You can do this online or by speaking with a representative at your local social security office. 

You may still qualify for SSI, Supplemental Security Income, even if your disability began after your date last insured.  However, SSI is a poverty program for disabled, individuals or persons over 65 years of age, with a limited income.   If you are disabled, in addition to proving your disability,  you will need to prove that your income, and the income in your household, falls below a certain level, in order to qualify for this benefit.

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This matter involved a 53 year old lifelong incompetent patient who developed aspiration
Pneumonia and required a ventilator in order to breathe. The plenary guardians sought approval to remove the ventilator and asserted that they had the same powers as guardians as “a health agent” in order to make this decision. The Supreme Court decided this matter in the case of In Re: D.L.H. 2 A.3rd 505 (Pa. 2010).

In this case more specifically D.L.H. had suffered from what had been deemed profound mental retardation since birth, and his parents were acting as the plenary guardians/parental life- time guardians. The situation culminated when D.L.H. contracted pneumonia, and the treating physician of D.L.H. determined that a mechanical ventilator was necessary in order to keep him alive. The parents, in their role of plenary guardians, did not believe that it was in their son’s best interest to have that ventilator, and wished to have it not placed and/or removed. Factually, prior to this case working its way through the court system, after being on the ventilator for a number of weeks D.L.H.’s condition improved and it was no longer necessary for him to be on a ventilator.

The Supreme Court in this matter looked at two issues in determining whether the plenary guardians had the right to refuse life preserving medical treatment:

1. The Health Care Agent’s and Without Representatives Act, 20 Pa. C.S. Section 5451-5471, has a provision which requires that health care providers provide care necessary to preserve the patient’s life when the patient has neither an end stage medical condition or is permanently unconscious.
2. Under 20 Pa. Section 5462© (1), the sole exception is if the patient is competent and objects or if the health care agent objects pursuant to a health care power of attorney or a living will.

Basically, in order to appoint a health care agent, the patient must have been competent at some point, which he was not in this case. The Supreme Court held that a plenary guardian can never refuse life sustaining treatment for an incompetent person who is not in an end stage medical condition or in a permanent vegetative state, and the plenary guardian cannot refuse this life preserving medical treatment on behalf of a person who lacks or has always lacked the capacity to make such personal health decisions under the circumstances.

Therefore, in a situation such as this when a person is not in an end stage medical condition or in a persistent vegetative state, and the person prior to that time had never expressed any type of directive on life saving treatment, it is not within the purview of the plenary guardian to make the decision to withhold life saving treatment.

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It is an all too common experience: you go to your hair stylist for a routine coloring, and suddenly you experience a burning sensation on your scalp, forehead or some other place where the chemical contacted your skin. Maybe you suffer in silence for a few minutes or maybe your stylist washes the chemical out as soon as you complain. Hopefully you experience nothing more than some pain and redness which goes away after a few days. Other times you can be seriously burned leaving a permanent scar on your face or may even need a skin graft.

Chemical burns from hair care products happen all too frequently. Shockingly, these burns almost always occur in situations where the licensed professional fails to follow the basic instructions that come with the product.

Almost all hair colors and other treatments come with instructions that a “patch test” should be performed every time BEFORE the product is used. It does not matter if you have used the product before without any problems a “patch test” must be done. In our experience stylists almost never follows these instructions. Pennsylvania law specifically requires a licensed hair care professional “to follow the directions of the manufacturer and the regulations and instructions of the Federal Food and Drug Administration which appear on or come with the chemicals.” Thus, we have successfully argued that when a hair stylist fails to perform a patch test they are liable for any injury that chemicals cause.

So if you have been burned by chemicals used by anyone you paid we may be able to help you. First, follow the manufacturer’s instructions to reduce the chances of a burn. Second, if you feel burning report it to the stylists at once and remove the product in accordance with the directions. Third, seek appropriate medical attention. Fourth, take photographs of the injury. And finally, call an experienced attorney who can help you recover damages for the injuries you have suffered.

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The U.S. Department of Transportation has recently announced a new standard aimed at reducing the number of people that are completely or partially ejected from their vehicles during rollover crashes. Under the new standard, automakers will be required to develop safety measures that prevent an unbelted adult from moving more than 4 inches past the side window opening in the event of a crash. This standard will begin to be phased in during 2013 and all newly manufactured vehicles will be required to provide this protection by 2018.

According to the National Highway Traffic Safety Administration (NHTSA), rollovers are among the deadliest types of auto accidents, accounting for approximately one-third of all traffic deaths and over 10,000 fatalities annually. Approximately half of these fatalities are a direct result of passengers being ejected from their vehicles. David Strickland of the NHTSA has stated that he believes the new standard will prevent an average of 373 fatalities and 476 serious injuries annually when it is fully implemented.

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In part three of this blog series I discussed the Court Mandated Arbitration process. In this installment, I will discuss a variation on the arbitration theme: high/low binding arbitration. In some instances, when the parties have agreed to submit their case to voluntary arbitration, the lawyers will also agree that the verdict rendered by the arbitrator (or a group or panel of arbitrators), regardless of the amount actually awarded, will be molded or changed to reflect a binding high/low agreement.

This means that the lawyers may agree in advance that regardless of the arbitrator’s award, the actual amount to be paid will not be lower than some number and not be higher than some number. As an example: the lawyers agree to a $10,000 low and a $100,000 high. If the arbitrator awards anything less than $10,000, the award will be molded up to $10,000 and if the arbitrator awards more than $100,000 the award will be molded down to $100,000. If the arbitrator awards anything between $10,000 and $100,000, the award will not be molded and the amount awarded by the arbitrator will stand.

There are several reasons that lawyers may agree to proceed in this manner. The obvious advantage is to guarantee a litigant that he will get something regardless of the arbitration outcome. At the same time, a defendant in a lawsuit is guaranteed that he will never have to pay more than the high number, regardless of the arbitration result. As with almost all forms of arbitration, this method of litigating a case is generally cheaper and faster than a full jury trial and there is no appeal of the verdict.

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Generally, underinsured motorist coverage (UIM) allows you to recover additional benefits pursuant to your personal auto insurance policy in the event that you are injured in a motor vehicle accident and the individual that hit you does not have adequate insurance coverage to fully compensate you for your injuries. However, if you regularly drive a vehicle that has been provided to you by your employer, you may be precluded from recovering UIM benefits pursuant to your personal auto insurance policy. The language of many UIM policies contains a specific exclusion denying coverage where an insured is involved in an accident while driving or a passenger in a non-owned vehicle that is made available for their “regular use.” This “regular use” exclusion has been held to prevent recovery of UIM benefits where an insured was involved in an accident while driving a car that was provided to his wife as a benefit of employment. Burstein v. Prudential Property & Cas. Ins. Co., 809 A.2d 204 (Pa. 2002). 

It is important to note that driving a car that is owned by your employer does not automatically preclude you from recovering UIM benefits. Recently, in Dixon v. GEICO, the Pennsylvania Superior Court reversed a trial court decision which held that the “regular use” exclusion was valid as applied to a postal worker who was involved in an accident while driving a postal vehicle from one location to another after servicing the vehicle. The court determined that in order to fall within the “regular use” exclusion, there must be an understanding with the owner of the vehicle that the insured was permitted to use the vehicle at such times as he or she desired.

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Airway problems during surgery can be catastrophic:

A 58 year old male entered a major urban hospital for shoulder surgery. In the course of the lengthy surgery, an extravasation of fluid went unnoticed to the point where the patient’s airway was compromised.  The patient remained unconscious in SICU and required lengthy intubation.  Attempts to remove the tube were initially unsuccessful and the risk of a permanent ventilator was presented to the family of the individual as a possible outcome.  The excuse?  A thick neck.

A 57 year old active female was not so fortunate. She was admitted to a major urban hospital for neck surgery.   In the course of the surgery something happened that resulted in a bilateral injury to her vocal cords and a permanent trach.  In this case, the intubation was said to be a difficult one with multiple attempts.

In its December 2010 issue, the Commonwealth of Pennsylvania’s Patient Safety Authority in “Management of Unanticipated Difficult Intubation” argues that problems with intubation can be strategically anticipated so that they are properly managed.  The article describes an analysis of the American Society of Anesthesiologists’ closed claims of medical malpractice for the period 1975 through 2000.  Of the 2,632 patients within this group who died or were permanently brain-damaged, over 50 percent were due to “[r]espiratory-related damaging events.”  In the latter category, these were most often difficult intubations and inadequate ventilation/oxygenation.

In the Commonwealth, 448 complications related to anesthesia were reported to the Authority in 2009.  Of the number related to intubation problems, most were the result of unanticipated difficulties with intubation.

According to the Authority disastrous outcomes associated with difficulty in intubation can be reduced with proper steps such as a comprehensive preliminary patient assessment to anticipate possible problems, “multidisciplinary cooperation” entailing strategic planning of airway management and other steps such as awareness of difficult airways in patients with thick necks or sleep apnea.

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Recently, I addressed the issue of punitive damage claims in cases arising out of personal injuries/death where the defendant was driving drunk. I am now writing about whether punitive damages claims are justified in a case where it is believed the Defendant was using a mobile device while trying to operate his or her car at the same time. Cell phone use, including texting, surfing the web, emailing and talking on the phone while driving is a real problem which requires deterrence. The fact is people are being injured because someone wants to check their email, post to Facebook, text their friend or talk on their cell phone. Using a cell phone while driving requires attention and concentration that distracts drivers' attention from the road. 

Recently, in Deringer v. Li, No. GD10-019081, a Judge in the Court of Common Pleas of Allegheny County, overruled preliminary objections which would have thrown out a punitive damage claim in which the Plaintiff alleged the Defendant was using a mobile device and caused an accident. In the case, the Plaintiff claimed that the Defendant was using a mobile phone when he drove his vehicle into the rear end of the motorcycle operated by the Plaintiff. The Plaintiff claimed that if the Defendant was utilizing a mobile phone to text, call or use the internet, then such conduct was reckless and justified the imposition of punitive damages. The Defendant filed preliminary objections seeking to dismiss the claim for punitive damages. Specifically, the Defendant argued that such conduct constitutes mere negligence. The Defendant also noted that the legislature has not made cell phone use while operating a car illegal.

The Court disagreed and overruled the preliminary objections by Order. The Defendant had argued that he was not using his cell phone and the Court noted that the Defendants could revisit this issue in a Motion for Summary if it was determined that the cell phone was not in use at the time of the accident. 

The significance of the Court's ruling is that the Court, similar to cases involving drunk driving, was required to perform an analysis of whether the conduct at issue (use of a mobile device while operating a vehicle) could properly support a claim for punitive damages. Similar to the cases involving drunk driving, just because the Defendant was using his or her cell phone is not going to automatically entitle a plaintiff to a punitive damages award. In order to obtain a punitive damages award, an attorney will need develop more evidence to establish outrageous conduct.

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If you are injured on someone else’s property you should seek medical attention if necessary. Whether that requires a trip to your primary doctor or the emergency room, it is essential to seek medical care immediately since the severity of injuries is not always apparent.

In addition to seeking medical care, taking pictures is also important. Along with getting the names and contact information of any person that may have witnessed your injury or has knowledge of the dangerous condition. Most people have a camera on their cell phone, making it even easier for you to take pictures.

If you are injured while on the premises of a business, in most cases the store manager or security officer will make an incident report. Before you leave the premises, be sure you have a copy of the incident report BUT do not sign it.

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Supplemental Security Income is available to individuals who have been determined to be disabled under the Social Security guidelines, and whose income falls below a certain amount per year.  Generally, you cannot receive Supplemental Security Income unless your have income and resources are below $2,000 as an individual or $3,000 as a married couple.  If you are awarded Supplemental Security Income, you will be eligible for Medicaid benefits, beginning one month after all the disability and income requirements are met. 

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Current law allows police officers to cite drivers for ice and snow on the top of their vehicles if the ice or snow falls from the vehicle and causes injury or death. Specifically 75 Pa. C.S.A.§3720 reads “when snow or ice is dislodged or falls from a moving vehicle and strikes another vehicle or pedestrian causing death or serious bodily injury...the operator of the vehicle from which the snow or ice is dislodged or falls shall be subject to a fine of not less than $200 nor more than $1000 for each offense”. 

Recently however, Senators in Pennsylvania are sponsoring legislation that would allow police officers to issue fines if snow or ice on a vehicle is deemed a possible threat to people or property. If passed, drivers who do not make a reasonable effort to remove snow and ice could be fined $25-$75.  This proposal by the Senators of Pennsylvania is an effort to strengthen the current law by deterring people from leaving ice and snow on their cars/vehicles. 

So please while you are digging yourselves out of these recent snow storms, don’t forget to clear the ice and snow of the top of your vehicle to avoid causing any possible injury to drivers or pedestrians!

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More and more, workers are being forced to drive their own vehicles when performing during working hours in order to perform work activities and duties. However, less and less, employers are providing little or no protection for employees if they are involved in an accident.

This post is part two of a nine part series discussing what you should know when driving your car during work. This installment will discuss what you should do when an accident happens? (You can view previous posts in this series online here.)

If you are injured as a result of a work-related motor vehicle accident, workers’ compensation insurance benefits are primary.  Workers’ compensation will pay for all reasonable and necessary medical expenses related to the treatment of any and all accident-related injuries.

The first thing you should do immediately following an accident in which you were injured is to go to an emergency facility.  Workers’ compensation does not limit your ability to go to any emergency facility.  After your initial care, the workers’ compensation carrier may restrict your follow-up care to a designated “panel” provider. The workers’ compensation carrier must follow certain procedures if they want to control your medical care through a panel provider.  You need an experienced workers’ compensation attorney to help you determine who you may see to treat your injuries. 

If the workers’ compensation carrier follows certain procedural requirements, they may control your medical care through panel providers for ninety (90) days.  After the first ninety (90) days, you have the right to treat with any provider you chose.

Panel providers often create treatment issues. In my experience, they tend to downplay injuries and the need for necessary treatment. You may need to become an aggressive advocate for your own care. If you feel as though you are not receiving the proper level of care, you need an experienced workers’ compensation attorney to fight for your rights.

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The Pennsylvania Superior Court recently reiterated Pennsylvania Law in this area in the  case of Lance v. Wyeth, 4 A.3rd 160 Pa. 2010. In this action, the Estate of Catherine Ruth Lance brought an action against Defendant Wyeth, the manufacturer of a prescription drug called Redux, which has been used to treat obesity.

Catherine Ruth Lance was diagnosed with Primary Pulmonary Hypertension (PPH) approximately seven years after she stopped using the prescription drug Redux. Studies have determined that the prescription drug Redux carries with it a significant risk for causing PPH. PPH was a cause of Ms. Lance’s death in December, 2004. She had only been diagnosed with PPH on or about November 15, 2004, approximately one month before her death. She had ingested the drug for approximately three months before discontinuing its use, in the time frame of approximately January 15, 1997 through April 1997.

During this litigation, Defendant Wyeth filed a Motion for Summary Judgment, stating that the Estate of Ms. Lance did not assert a cognizable claim for strict liability under Pennsylvania Law. Partial Summary Judgment was granted and the Superior Court affirmed, based on the fact that in Pennsylvania there are only two possible strict liability claims for dangerous drugs: (1) Manufacturing defects or (2) failure to warn.

In this case the Estate of Lance had conceded that they were not asserting a failure to warn, but that Wyeth was negligent in placing an unreasonably dangerous product into the market, in essence alleging that Wyeth should be held liable for  “Unreasonable Marketing” and “Unreasonable Failure to Remove (Redux) from the Market”. The Court disagreed but allowed the case to go forward on the negligent design claim part of the manufacturing defect prong of the current test where strict liability claims can be brought as it pertains to dangerous drugs.

Therefore, Pennsylvania Law has not been expanded in this area.

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Car accidents can happen at any minute. So many people are hurt or injured every year because of careless driving. With the start of the New Year, in addition to trying to lose weight or quit smoking, we should all try to become safer drivers.

Here are some simple things that we can all do to accomplish this important goal:

1. Slow down. Excessive speed is the number one reason for car accidents;
2. Put down the cell phone;
3. Fasten your seat belts;
4. Do not eat while you are driving;
5. Never drink and drive;
6. Do not tailgate. You should leave at least a two-second cushion between your car and the one in front of you;
7. Stay awake. If you need to stop or take a nap, pull over and do so;
8. Remove all snow and ice from your vehicle before driving; and
9. Make sure that your car is working properly. Check the tires and the brakes.
10. Be aware of other drivers. Even if you're being cautious, others might not be.

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An editorial in this week’s New England Journal of Medicine suggests that sleep-deprived surgeons should not be allowed to perform certain surgery without first informing their patients. Dr. Michael Nurok is an anesthesiologist at the renown Hospital for Special Surgery in New York and a member of the Department of Global Health and Social Medicine at Harvard Medical School. In the editorial he writes “we think institutions have a responsibility to minimize the chances that patients are going to be cared for sleep-deprived clinicians.” He goes on to advocate that “sleep-deprived physicians should be required to inform patients of their condition and the potential hazards that can come with this impairment” before any elective surgery.

Easily preventable mistakes are often the source of tragic outcomes I regularly see in my practice. According to a study published in the Journal of the American Medical Association in 2009, “interns commonly work shifts that are longer than 24 hours.” “Studies have shown that sleep deprivation impairs psychomotor performance as severely as alcohol intoxication.” 

Dr. Nurok stated that “sleep deprivation affects clinical performance. It increases the risk of complications. And it is clear from survey data that patients would want to be informed if their physician was sleep-deprived and that most patients would request a different provider.” He concluded that “we think institutions have a responsibility to minimize the chances that patients are going to be cared for by sleep-deprived clinicians.”

Of course, if you or a loved one has had a bad surgical outcome it is unlikely that you will be able discover what really happened in the operating room. Together with the medical malpractice team here at Stark & Stark I investigate hundreds of potential medical malpractice cases each year. While not all bad outcomes are caused by malpractice the only way to know whether you have a case is to consult with an attorney who will carefully investigate the matter for you. My team and I are happy to do that at no charge. If after our investigation I believe you have been a victim of medical malpractice I am happy to represent you on a contingency fee basis. Please feel free to call me at 267-907-9600 if you believe you or someone you care about may have been a victim of malpractice.

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