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

How good are the Commonwealth’s inspections of nursing homes?

In Pennsylvania, nursing homes are inspected by the Commonwealth’s Department of Health.  This agency conducts annual inspections to determine whether the nursing facility of meeting standards set by the federal and state government.  If noncompliance with regulations is found, the home will be subjected to more frequent visits and corrective action must be taken.

The inspections are performed by a team.  If there are areas of noncompliance with regulations, these are reported and available for free on-line.  Go to www.health.state.pa.us .  Once there, on the left side of the page you will find a list of options.  Select the option “FACILITIES, PROVIDERS AND MANAGED CARE PLANS”.   This page will show a box of “Quick Links”.  Select the first one Nursing Care Facilities.  You will get a map of Pennsylvania that will show all the counties.  Just click on a county and it will bring up a list of nursing homes in that county.  If you want to see survey results (i.e. the inspection results) for a specific nursing home, just click on Patient Care Survey for that facility.  Once there, it will show you the latest results for that facility – that is, was it in compliance or not.   If you want to look at that home’s history, you can select specific dates of inspections that will show you details regarding what problems were found, if any.  You can also look at building surveys and other services that the nursing home states that they offer.

These inspections are one source of information on a nursing home but the limitations are significant.   For example, on February 12, 2011, the Boston Herald reported that one nursing home resident suffering from dementia killed another resident in the dementia unit.  Staff of the Cambria Care Center in Ebensburg, Pennsylvania became aware of the attack by the resident when they found the victim lying in a pool of blood as a result of being bashed in the head with a door by the other resident.  Additionally, bruises were found all over the victim’s body. 

Recent evaluations for this Care Center on the Commonwealth’s web site are instructive as to both the Center and the inspections themselves.  Results for the period January through August showed noncompliance issues in the areas of Visitations; Notification of Medicare/Medicaid Benefits; Prevention of Decreases in Range of Motion; the Completeness, Accuracy and Accessibility of Records; Services to Prevent Pressure Ulcers; Provision of Care/Services for the Highest Well-Being; Requirement Services Meet Professional Standards and others.  Additionally, in three cases patterns of violations were found, including Accurate Procedures for the Pharmacy Services, Safe Sanitary Environment and Self-Determination.   

No single violation here precisely foreshadows the events of February 11, 2011.  Nevertheless, cumulatively they are suggestive of the need for a much closer review of the practices, staffing and management of the home.  Notably, the fact that violations continued to be found is especially concerning.  It is important to remember that the inspections are extremely limited in scope, are only as good as the inspectors and can vary according to the time of day, day of the week and many other variables.  Finally, they capture only those violations that reflect noncompliance with minimum regulations that are oftentimes sketchy and vague.

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The Philadelphia Code places the burden upon both owners and tenants to remove snow and ice from their sidewalks.  Chapter 10, Section 720 requires owners and tenants to thoroughly clear a path not less than 30 inches in width on all sidewalks bordering the building or premises within 6 hours after the snow or ice has ceased to fall.  This ordinance further states that it shall be a violation to place snow or ice that has been removed from sidewalks in the street. 

While the penalties for violating these provisions are relatively minor, ranging from a minimum of $100 to a maximum of $300, failure to remove snow may expose residents to civil liability for amounts far greater than this in the event of an injury.  If you have been seriously injured as a result of a fall on snow or ice, call an experienced personal injury attorney for assistance.

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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 six of a nine part series discussing what you should know when driving your car during work. This installment will discuss how to obtain wage benefits in the event your work-related injuries prevent you from returning to work. (You can view previous posts in this series online here)

When a work-related accident results in an injury which prevents you from returning to work, you are entitled to wage benefits. Workers’ compensation provides you with wage loss benefits if your work injury results in any  loss of wages. Your wage benefit is based upon a complicated calculation that the employer and the workers’ compensation carrier determine. More often than not, this calculation is wrong and results in you receiving a sum of money which is less than what you are actually entitled to.

You may also be entitled to additional wage benefits under other policies of insurance.  That is why you need an experienced workers’ compensation and personal injury litigator to assist you in identifying any and all wage benefits you may be entitled to.

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The last ten years in the Commonwealth of Pennsylvania there have been changes promulgated in Tort Law, including the MCARE Act, which limits the rights and remedies of individuals to seek recourse for professional negligence in medical malpractice and other health care actions.

Also during the 2000's there have been efforts to promulgate even more extensive Tort changes. That is especially true with the new makeup of the Pennsylvania Legislature and Governor Tom Corbett, who had promised such changes as part of his campaign.

The Pennsylvania Insurance and Business community as well as Hospital and Health Care Leaders have indicated that they believe that this is the time where these changes will be passed.

There is currently legislation being proposed in the Pennsylvania Legislator which is substantially similar to a law that was vetoed in 2006 by then Governor Edward G. Rendell. A variety of substantial victim’s rights are being challenged by the proposed passage of this legislation:

Pennsylvania contains under its Tort law, the Joint and Several Liability provision, which holds that when there are multiple defendants, any defendant who is held 1% liable can be held responsible for the entire amount of an award awarded to a Plaintiff. The new legislation would change that long time Pennsylvania Law to have damage payments be spread among the defendants based on their level of responsibility for the injury, unless one defendant is more than 60% liable, then that defendant could be liable for the full damages awarded to the plaintiff.

Other proposals that would be pushed in the General Assembly by the business leaders here in Pennsylvania include one that would eliminate what they characterize as venue shopping in Tort cases. If enacted, the new law for venue choice in Pennsylvania would be substantially the same as that covering medical malpractice suits which has been in effect since 2003 when the Pennsylvania Supreme Court changed the Rules of Civil Procedure, which in essence limited medical liability actions to the counties where the injury occurred. If enacted, the legislation would affect the venue selections in all Tort actions within Pennsylvania.

There are also indications that some changes are attempting to be made to Product Liability laws but at this point the proposals are not as certain. The proposed changes may include such things as imposing a Statute of Repose and an “innocent seller provision”. What happens once the legislative session begins remains to be seen.

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There are generally two types of damages a person can make a claim for in a personal injury lawsuit. They are ECONOMIC damages (loss of things that cost money) and NONECONOMIC damages ( intangible losses). In this blog we will address the NONECONOMIC damages.

NONECONOMIC damages can be further broken down to include pain and suffering, embarrassment and humiliation, loss of ability to enjoy life’s pleasures and disfigurement.

Pain and Suffering: An injured party is entitled under the law to be fairly compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that he or she has suffered  from the date of the injury until the date of trial and also for those same injuries that the party is projected or expected to suffer in the future.

Embarrassment and humiliation: To the extent that party has experienced present and/or future embarrassment and humiliation they are entitled to a sum of money that fairly compensates them for that loss.

Loss of life’s pleasures: Likewise a party is to be fairly compensated for loss of life’s pleasures. That is the inability, both present and future, to enjoy life in the same ways that the individual enjoyed life prior to the accident. For example a grandparent who can longer pick up or play with their grandchildren like they did before the accident experiences this type of loss. Also an inability to continue to engage in a hobby that brought a party pleasure would be the type of damages awarded under this category.

Disfigurement: A party is entitled to be compensated for any disfigurement they may suffer as a result of an injury. For example, someone who suffers scarring from an accident or from a surgical procedure necessitated by an accident can recover this type of damage.

When a jury is asked to award these types of damages, because there is no mathematical method of making a calculation, a Judge will instruct the jurors to consider the following factors:  1) the age of the party, 2) the severity of the injuries, 3) whether the injuries are temporary or permanent,  4) the extent to which the party is unable to perform the activities that he or she used to perform before the injury, 5) the nature and extent of the treatment for the injuries, 6) the duration and extent of the pain and suffering, 6) the physical and mental condition off the party before the injuries suffered, and 7) in cases where there is disfigurement the nature and extent of the disfigurement. For example if the party has scarring the jury must consider the location and size of the scar.

In a personal injury action, a jury is asked to consider the above factors when deciding the amount of the NONECONOMIC damages to be awarded to a party. These are also the factors that an attorney considers when negotiating a settlement of a personal injury claim.

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In a unanimous decision, The United States Supreme Court has determined that car manufacturers are subject to suit based upon their failure to install shoulder belts in the rear inner seats of their vehicles.  In the case of Williamson, et al. v. Mazda, the Williamson family brought suit in California state court on behalf of the estate of Thanh Williamson alleging that Thanh died in a motor vehicle accident because the rear inner seat of the Mazda minivan in which she was riding had a lap-only seatbelt as opposed to a lap-and-shoulder belt.

The state trial court dismissed the suit, holding that the Williamson’s claim was pre-empted by a  federal regulation that gives car manufacturers the option of installing lap-only seatbelts or lap-and-shoulder belts in rear inner seats.  The State Court of Appeal affirmed this ruling relying upon the case of Geier v. American Honda Motor Co., in which it was held that federal regulation requiring passive restraints pre-empted a state tort suit against an auto manufacturer for failure to install airbags.

The U.S. Supreme Court overturned this ruling holding that the only way that Mazda would be immune from suit is if the "significant objective" of the federal regulation at issue was to give auto manufacturers a choice of which seat belts to install.  The evidence introduced indicated that the Department of Transportation’s decision not to require manufacturers to install lap-and-shoulder belts was purely cost driven, having no relation to the safety goals of the regulation.

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Despite the fact that nursing homes and other long term care facilities are paid tens of thousands of dollars to care for our loved ones, the unfortunate reality is that far to many people are victims of abuse or neglect.  This can be a serious problem since residents often cannot communicate what is happening to them.  Even in the nicest appearing nursing home residents can be victimized when just one care giver fails to do their job.  Even the most vigilant family cannot, and should not have to, watch their loved one 24 hours a day.  Although abuse and neglect can occur at any hour of the day, most frequently they occur during the overnight shifts when the staffing is at its lowest and where the newest staff members are often assigned.

The best way to help protect your loved one is to visit them as frequently as possible.  Use your common sense when things don’t seem right.  Ask questions. And call us if you think your family member may be a victim.

Additionally, here are some warning signs that you should be looking for:

• Open sores.  In addition to being extremely painful these sores can often give rise to deadly infections.
• Areas of redness on the skin especially on the heels, elbows, shoulder blades or just above the buttocks.  This can be an early warning sign of bedsores.
• Sudden weight loss.
• Frequent bruising.
• Unexplained injuries including broken bones and cuts.
• Sudden changes in behavior.
• Lack of cleanliness.
• Begging for food or drink.  These can be signs of malnutrition or dehydration.
• Absence of staff.
• Lack of fall precautions

It is also important to listen to your loved one and take their complaints seriously.  This is difficult if your family member is suffering from dementia.  They may not be able to explain clearly what is happening to them but if, for example, they start to complain about “that woman” doing something do not assume it is an imaginary person.

In the end, your commons sense should be your guide.  If things don’t feel right or just don’t add up, call us.  Our consultations are free.

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In Pennsylvania, “The Landlord and Tenant Act of 1951” (“The Act”) governs all residential leases entered in Pennsylvania. The Act provides certain terms in the relationship between a landlord and tenant that cannot be waived by the tenant, even where the written lease has provisions contrary to the Act. 

A common issue that arises between landlords and tenants in residential leases governed by the Act is the handling of the tenant’s security deposit at the conclusion of the lease. Residential landlords should be wary of the Act’s remedies for improperly withheld security deposit monies. The Act requires a landlord under a residential lease to provide the now former tenant with a written list of the damages to the premises that the landlord claims are the tenant’s responsibility within 30 days of the termination of the lease.

The list of damages must be accompanied by payment of the difference between the amount claimed for the damages and the amount of the security deposit with interest.  If a landlord fails to provide the written list of damages and repayment of security deposit amounts in excess the amount of damages claimed within the 30 day window, they will be deemed to forfeit the rights to withhold any portion of the security deposit or to sue the tenant for damages to the premises. If the landlord fails to pay the amount of the security deposit for which no claim is made within 30 days of the termination of the lease, the landlord can be held civilly liable for double the amount of the security deposit wrongfully withheld. A tenant’s claim for double the security deposit can be mitigated if the landlord can prove the amount of actual damages done to the premises to the satisfaction of the Court. This procedure may be employed by a tenant regardless of the terms of the written lease agreement or other writing between the landlord and the tenant.

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Under Pennsylvania law, property owners are to employ reasonable care in keeping sidewalks on their property free of hazardous and defective conditions. However, as recently reiterated in the case of Alston v. Commonwealth, a Philadelphia County Common Pleas Court case, (Phila. Co. Dec. 13, 2010; Levin J.) there are limits to the nature of the size of the defect and surrounding circumstances which would impute liability.

In this case it was determined that the defect in the sidewalk that the Plaintiff, Kira Alston, tripped, fell and was seriously injured on was 5/8". The Court ruled that this was a trivial defect as a matter of law in this matter. Judge Levin in his opinion states “it is simply unreasonable and utterly unrealistic to hold municipalities and property owners to a standard of care maintaining pavement in pristine condition”. Further, within the opinion, Judge Levin pointed out that (1) there were numerous Appellate decisions in the Commonwealth, finding deviations greater in size than the 5/8" deviation in this case as a matter of law, not providing any basis for liability against the property owner. Further (2) that in this case one of the liability experts for the City of Philadelphia which was proceeding on a cross-claim, conceded at trial that there were thousands of city sidewalks with elevations levels of less than one inch.

Given the circumstances of this matter Judge Levin entered a compulsory non-suit at the end of Plaintiff’s case in favor of the property owner.

Therefore, though a property owner bears a reasonable standard of care to keep a sidewalk in a reasonably safe condition under the circumstances, if the defect to the sidewalk is determined to be trivial, as a matter of law, the lawsuit can be dismissed on those grounds regardless of the nature and extent of injuries to the Plaintiff.

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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 five of a nine part series discussing what you should know when driving your car during work. This installment will discuss who you should notify after a work-related motor vehicle accident has occurred. (You can view previous posts in this series online here)

When a work-related accident occurs you need to notify all entities who may provide you benefits. First and foremost, you should immediately notify your employer and their workers’ compensation carrier. Failure to provide this notice may preclude you from receiving workers’ compensation benefits.

Next you need to identify insurance coverages that may be available to you and notify those entities. For example, if you are driving a car which you own and insure, you may have coverages available to you under your own policy (i.e. wage loss benefits/uninsured motorist coverage, etc). If you are in an employer’s vehicle, there may be additional coverages available to you. You should consult with an experienced workers’ compensation and personal injury litigator who can help you with providing notices to all entities responsible for benefits.

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SSD
SSD, or Social Security Disability benefits, as will as retirement benefits, stop for people who are in jail for more than 30 continuous days after a conviction.  These benefits are referred to as "Title II" benefits.  Your checks will stop with the month you entered jail and were convicted. For example, if you were sent to jail on 3/21/01, convicted of a crime on 3/29/01, and the court ordered you to serve a 6-months sentence, your benefits would stop beginning with, the check you receive in April 2001.

Your benefits completely stop until you are released from jail. Once released, you need to contact your local Social Security office with your release papers and apply to get your benefits started. Also, if you are in jail awaiting trial, you will continue to get your Disability or Retirement benefits until you are convicted.

SSI
SSI, or Supplemental Security Income pays monthly checks to people who are 65 or older, or blind, or have a disability and who do not own much or have a lot of income.

If you get a monthly SSI check and you are in jail, your SSI check will stop after you are in jail for a full calendar month. For example, if you were in jail on 3/21/01 and you will stay there to serve a three-month sentence, SSA will stop your SSI check beginning with April 2001.  Your monthly SSI check will not start again until you contact your local Social Security office and bring your proof of release from jail with you to reapply for benefits.

Medicare
If you receive Medicare benefits, when you go to jail, your hospital insurance (Part A) continues.  However, your medical insurance (Part B) will end unless you pay the monthly premiums.  If your Part B coverage ends, you can enroll during the general enrollment period (January - March each year).  However, your Part B coverage will not start until July of the year in which you enroll.  In addition, you will be responsible for any unpaid past-due premiums and the cost of your Part B coverage may be higher.

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Although this winter season has already seen a great amount of snow accumulation, weather forecasters are predicting more snow will hit us in the coming weeks. Of course, all of this snow makes for dangerous walking conditions. As the amount of snow accumulation continues to increase, so does the chance of being hurt as a result of slipping on ice or snow.
 
There are a few things that you should do if you are hurt on someone’s property as a result of snow or ice. The first thing is to be sure that you seek medical attention. If you are seriously hurt, you should call 911 and wait for an ambulance. 

Next, you should notify the property owner so that they may correct the dangerous condition. You do not want anyone else to be hurt as you were. Also, this will help prove that you were really hurt on their property. If you are hurt on a commercial property, they may want you to complete a report or give them a statement. Be careful when doing this. They will usually try to use whatever you tell them against you later.   

Pictures. Pictures. Pictures. If possible, you should take pictures of the dangerous condition. If you have a digital camera or cell phone with a camera built in, take several pictures of the area where you were hurt. Pictures can be very valuable in proving that the dangerous condition existed. Also, it will prove that the property owner should have taken care of the condition before you were hurt. These pictures could help you win your case.

Your next call should be to an attorney that handles slip and fall cases. At Stark & Stark we handle these cases every day. We will have experts that will want to inspect the dangerous condition as soon as possible. Also, we will want to make sure that you are fully compensated for the damages that you suffered.

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