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

I recently came upon an article in a health publication that discussed an area of the law that gets very little attention and yet is extremely important to many people, especially those who have no health insurance coverage. Although the article was written many years ago it is just as relevant today as it was when it was written.

There is a federal statute known as the Anti-Patient-Dumping Law. The law was created to deter and penalize Hospital Emergency Room Departments from failing to treat potential patients who have no insurance by refusing to admit them to the hospital, transferring them to another facility or discharging them from the hospital before the patient is medically stable. If a hospital fails to comply with the law they may be subject to financial penalties as well as to a lawsuit for any damages incurred by the patient for the failure to provide the proper medical care. This law applies only to Medicare participating hospitals with emergency departments. Here is a link to the article that provides detailed information about the law as well as some examples of how it has been enforced.

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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 eight of a nine part series discussing what you should know when driving your car during work. This installment will discuss what you are entitled to through other claims. (You can view previous posts in this series online here)

What other claims can I make?  What other benefits am I entitled to?  The answer to these questions is that “it depends”. It requires an extensive investigation to examine and evaluate potential claims against various persons/entitles. Benefits may be available under policies of insurance that provide coverage for persons/entities/businesses connected to the party(s) responsible for causing the accident.
   
It also requires an extensive investigation to examine and evaluate other claims that may be made under “other” policies of insurance that may provide benefits. Typically, this involves investigation of policies providing uninsured/underinsured motorist benefits. These types of coverages may be found in an individual’s policy of insurance or in an employer/business policy.  These polices can be complex and difficult to understand. Consulting an experienced attorney will ensure that you receive the maximum compensation you deserve.

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Pennsylvania is part of the small minority of states that provides for a peculiar form of ownership of property between a husband and wife which often frustrates the creditors of one spouse. Known as a “tenancy by the entireties,” this estate in property is founded upon the idea that when spouses marry, they become a single legal entity or person. Therefore, when a husband and wife purchase a house or other real or personal property, each is deemed to acquire a one hundred percent undivided interest in the property which cannot be severed or encumbered by the acts of only one of the spouses.  This form of ownership is presumed in Pennsylvania upon conveyance to a husband and wife unless there is an affirmative effort to title the property in another matter.

The practical consequence of a tenancy by the entireties is that the debts and judgments against one spouse cannot affect property held by the entireties.  To the extent that all of a judgment debtor’s property of value is held with the judgment debtor’s spouse, it is shielded from execution.  In Pennsylvania, a tenancy by the entireties can even survive the sale of property – Courts in Pennsylvania view the proceeds of sale of property held as a tenancy by the entireties to be exempt from execution, even after deposited into the bank account titled only in the name of the debtor spouse. 

There are very few ways around the roadblock of a tenancy by the entireties for creditors.  If a debtor conveys property to himself and his spouse in an effort to frustrate his creditors, the transfer may be avoided under Pennsylvania’s Fraudulent Transfer Statute.  If the non-debtor spouse predeceases the debtor spouse, then title to the property passes to the surviving spouse by operation of law, and a judgment creditor may execute upon the property. 

To illustrate how a tenancy by the entireties benefits creditors, the 2005 Pennsylvania Supreme Court case of Regions Mortgage, Inc. v. Muthler is instructive and eye-opening.  In Regions Mortgage, a husband and wife applied for a Mortgage jointly.  The Mortgage Company, in a unilateral mistake, prepared the Mortgage with only the husband’s name, however the Deed named the husband and wife as grantees, creating a tenancy by the entireties.  Shortly after recording the Deed, the husband passed away, and by operation of law the wife became the sole owner of the house, however the debt to purchase the property did not pass to the wife.  The Mortgage Company then sued the wife to “reform” the Mortgage to make the wife responsible for the debt.  The Pennsylvania Supreme Court held that the Mortgage Company could not reform the Mortgage to make the wife responsible for the debt, and when the husband died, the wife came to own the property free and clear of the Mortgage Company’s Mortgage Lien. 

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A root cause analysis is a way for healthcare facilities to examine what went wrong in a particular case and how to prevent the error from occurring again. The article, Techniques for Root Cause Analysis, published by Baylor University Medical Center in April 2001 considers the process entirely positive. Among the benefits is the ability to determine the frequency of particular errors or to identify the how often a specific part of the facility is involved.

Of particular importance, according to the article, is the participation of all the staff involved in the error. A different take on this has been suggested in Testing the Limits of Transparency in May 2008 by Patrice Spath who argues for the inclusion of not only staff involved in the incident but also patients and patients’ families.

Ms. Spath recounts the experience of parents who were asked to attend a root cause meeting by John Hopkins Hospital after their daughter died because of a medical error. Ultimately, the parents became involved with the hospital in corrective action. Some other facilities have since let down their guard and included families in root cause analysis but not without doubts. 

Indeed, when confronted by the prospect of a widow’s involvement, one CEO reportedly was horrified, concerned about the liability risks. The process was found to be significant for identifying a problem, for allowing the family member to express her anger and emotions and explain a perspective that was not otherwise available.

Did it prevent a claim from being filed? The CEO did not know if that was the case and said that was not the intent. Rather “transparency was the right thing to do.”

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A custodian at a Bucks County High School recently recovered over $100,000 for injuries that she suffered as a result of tripping over an exposed pipe in the school’s kitchen. The custodian injured her larynx and neck when she landed on a nearby sink. Her injuries prevented her from singing in her church choir for months.

The school was undergoing a major renovation. It was the end of the summer and the custodian and her employees were having a lunch celebration for all of their hard work in preparing the school for the new school year. After the party, the custodian was returning pots and pans to the kitchen when she tripped over the exposed pipe. This pipe is supposed to be covered by a large industrial kitchen table. There were several outside contractors that may have recently been working in the kitchen and could have moved the table. These contractors may have left the pipe exposed and did not provide any warnings to the custodian or others about the tripping hazard.

Initially all of the contractors denied any liability for the incident. However, John Cordisco and I were able to prove that the contractors were in fact responsible for the incident and that they should compensate the custodian. The good news is that after she recovered from her injuries, she was able to rejoin her church choir.

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As attorneys representing injured clients, we have become intimately familiar with recently enacted Medicare legislation and the resulting impact on our practice. However, I am increasingly surprised by the number of attorneys who fail to inform their clients of the practical implications that this legislation will have on their case. At Stark & Stark, we believe that communication plays a vital role in a healthy attorney-client relationship. To this end, we make it a priority to discuss the impact of Medicare with all Medicare eligible clients at the onset of their case.

First and foremost, if you have received Medicare benefits for treatment of your injuries, it is important to be aware that Medicare has an absolute right to recover these payments upon resolution of your case. This will ultimately serve to reduce the amount of your recovery and it is certainly a factor that needs to be considered in evaluating your case. 

It is also important to be aware of the fact that the involvement of Medicare can significantly delay the timing of your recovery. In order to speed up the process, it is essential that you inform your attorney that you are a Medicare recipient as early as possible. This will allow your attorney to open up a dialogue with Medicare at an early stage in the proceedings in an effort to determine the amount that Medicare is ultimately entitled to recover. As you continue treatment for your injuries, this amount is likely to increase; however, opening up an early dialogue with Medicare will provide your attorney with a ballpark figure that will be helpful when attempting to resolve your case.

Once your case is resolved, your attorney is required to notify Medicare of the settlement/award amount along with the associated attorney’s fees and costs. Based upon these figures, Medicare will generally agree to reduce their recovery by some amount. However, you must be aware that you will not receive your recovery until your attorney receives a finalized figure from Medicare. While Medicare estimates that it will take approximately 35 days to provide this information, I have seen it take in excess of two months. Generally, there is nothing that can be done to speed up this process and some patience is required. At Stark & Stark, we find that increasing client awareness regarding the Medicare recovery process makes these delays far more tolerable.

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On January 24th of this year, child custody law in Pennsylvania changed.  Previously, child custody disputes where decided by a judge based upon the “best interests of the child” standard.  This broad standard gave litigants, counsel and judges broad discretion in deciding what facts and factors constituted “best interests.”  The new law helps focus the best interest inquiry and will aid in removing personal biases of judges, create more uniformity in decisions, and allow for better reasoned and more child-centric custody decisions.

Starting January 24th, the court must now “give weighted consideration” to the following 16 “best interest” factors:

• Which party is more likely to encourage and permit frequent and continuing contact between the child and another party
• The present and past abuse committed by a party or member of a party’s house-hold, whether there is a continued risk of harm to the child and which party can better provide adequate physical safeguards and supervision
• The parental duties performed by each party on behalf of the child
• The need for stability and continuity in the child’s education, family life and community life
• The availability of extended family
• The child’s sibling relationships
• The well-reasoned preference of the child
• The attempts of a parent to turn the child against the other parent
• Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs
• Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child
• The proximity of the residences of the parties
• Each party’s availability to care for the child or ability to make appropriate child-care arrangements
• The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.
• The history of drug or alcohol abuse of a party or member of a party’s household
• The mental and physical condition of a party or member of a party’s household
• Any other relevant factor       

Additionally, under the new law Judges must provide the reasons and facts they relied upon in reaching their decision. These changes should provide greater predictability and uniformity in custody disputes throughout the state.

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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 seven of a nine part series discussing what you should know when driving your car during work. This installment will discuss the limitation of workers' compensation benefits in after a work-related motor vehicle accident. (You can view previous posts in this series online here)

Under Workers’ compensation law, you are basically entitled to medical benefits for reasonable and necessary medical treatment and wage loss benefits if you are out of work because of the injury(s) you sustained as a result of the work-related motor vehicle accident.

Workers’ compensation does not entitle you to compensation available in other types of claims. Additionally, workers’ compensation does not entitle you to other traditional claims available in civil law such as compensation for pain and suffering/compensation for your inability to enjoy life’s pleasures because of your injury or other economic loss(es).

Are you entitled to benefits beyond workers’ compensation? If you are unsure of the answer to this question, contact an experienced personal injury litigator who can assist in identifying all potential claims.

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Under-ride guards on tractor-trailers often fail in crashes, with deadly results, so the Insurance Institute for Highway Safety is petitioning the federal government for a tougher standard. "Hitting the back of a large truck is a game-changer," said the IIHS in a statement on Tuesday. "You might be riding in a vehicle that earns top marks in frontal crash tests, but if the truck's under-ride guard fails — or isn't there at all — your chances of walking away from even a relatively low-speed crash aren't good."

An estimated 423 people in passenger vehicles die each year when their vehicles strike the backs of large trucks; nearly 5,000 are injured, according to the National Highway Traffic Safety Administration.

Even when your vehicle earns top marks in government or insurance crash tests, it’s important to know that your car remains vulnerable to unusual types of accidents.  For example, someone could rear-end you and push you into the back of a tractor trailer. 

The Insurance Institute for Highway Safety chillingly has illustrated this fact through a series of tests in which passenger vehicles rear-end the backs of some of America’s most popular tractor-trailers. 

The study concludes that it’s not the passenger cars, but the tractor-trailers that fail to keep passengers safe. Oftentimes, the guard rails on the back end of trucks failed basic requirements even though the rails were certified to U.S. and Canadian safety standards.

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When to start receiving social security retirement benefits is one of the most important decisions you can make when contemplating retirement.  Retirement benefits can  start as early as age 62 or as late as age 70.  However, your monthly benefit amount will be different, depending upon the age you start receiving it.

You must be insured under the Social Security program before retirement benefits can be paid to you or your family. That is, you must have earned a certain amount over a certain period of time to become fully insured for Social Security Retirement purposes.  Social Security  considers  the number of quarters of coverage you earned to determine if you are insured. You earn a quarter of coverage (QC)—also called a "credit"—for a certain amount of work covered under Social Security, but you may earn no more than 4 QCs per year.  Generally, to be fully insured for retirement benefit purposes, you need at least one QC, which equals 1 credit, for each calendar year from age 21 to age 6f2.

If you choose to start your benefits at age 62, the monthly amount that you receive will be reduced based upon the number of months you receive benefits before you receive your full retirement age.  If you wait until your full retirement age, your benefits will not be reduced.  If you wait until after your full retirement age, the amount you receive every month will be increased based upon the number of months you do not receive benefits between your full retirement age and age 70.  There is no additional benefit for working beyond age 70.

Full retirement age had been 65 for many years. However, beginning with people born in 1938 or later, that age gradually increases until it reaches 67 for people born after 1959.

You should apply for retirement benefits no more than four months before you want your benefits to begin.  Even if you have no plans to receive benefits, you should still sign up for Medicare three months before age 65.

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