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

In today’s world it is difficult to find a time when you are not being filmed. Surveillance cameras are being used everywhere from retail stores to SEPTA buses to highly trafficked intersections. The increased availability of surveillance footage has certainly had a significant impact on our practice here at Stark & Stark. In many cases, we are able to obtain surveillance footage of the incident that caused our client’s injuries. Obviously, this footage can prove to be extremely helpful in obtaining a successful resolution to a case.

One of the many things that clients need to understand about surveillance footage is that it is usually destroyed quite often. For instance, many retail locations have their surveillance cameras on a loop system and footage may be lost as quickly as 24-hours after it is filmed. For this reason, it is extremely important to notify a store manager of an injury immediately after it occurs. Once the store is notified of your injury, they have a responsibility to preserve the surveillance footage that captures the incident that caused your injury. After notifying the store of your injury, it is important to speak to a lawyer as soon as possible to allow the lawyer to confirm that this footage has been preserved. 

In the event that the store fails to preserve the footage after you have notified them of your injury and your lawyer has sent a letter confirming that the footage has been preserved, the store may face sanctions for failing to preserve this evidence. One such sanction is what is referred to as an “adverse inference.” This simply means that, at the time of trial, the jury will be instructed that the store failed to preserve the surveillance footage despite being notified to do so. Based upon this fact, the jury is entitled to determine that the surveillance footage would have been beneficial to the plaintiff’s case. Often times the threat of this “adverse inference” will serve to advance settlement negotiations and allow your lawyer to obtain a favorable settlement prior to trial.
 

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House Bill 797 has recently been passed in both the Pennsylvania House and Senate. This Bill proposes a law that focuses on firefighters who work to protect our communities. Specifically, the Bill is designed to allow firefighters to collect workers’ compensation benefits if they develop cancer directly related to fire or hazmat exposure while working as a firefighter.

To be eligible, however, a firefighter must be involved in continuous firefighting duties for four or more years and have successfully passed a cancer free physical exam prior to engaging in firefighting duties. Supporters of the Bill feel there is no greater tragedy than a firefighter who, after retirement, develops cancer that was obtained while protecting our communities. They are hopeful that the Governor will pass this Bill. It was presented on June 28th but there is no time table for its consideration.
 

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he Center for a Just Society recently published an interesting article entitled The Hidden Dilemma of Elder Abuse. The article discusses why Elder Abuse is allowed to continue and not be prevented. The authors believe that the root of the problem is a “lack of dignity and respect constitute disregard for the older person which in turn becomes ageism or discrimination against those who are aged.” That is why “there is not an ongoing cry against Elder Abuse.”

The authors argue, and I agree, the number one problem is lack of sufficient staff on all three shifts per day in our nursing homes. Moreover, when a staff member is intent on cutting corners the best victim is the nursing home patient who cannot stand up for themselves. A victimized patient probably does not tell another staff member of the abuse. They may not even be able to verbalize their plight. When they do complain they may not be believe or their complaints may be dismissed.

The authors give 4 points to summarize the dilemma:

1. We put people with high level care needs in homes and use regulations to protect them:
2. We do not make certain that the homes are adequately staffed;
3. As a result vulnerable patients can be victimized even over long periods of time; and,
4. When our society learns of abuse we get angry but then put our heads in the sand and avoid standing up for the elderly until AFTER the abuse occurs.

If you suspect that a loved one has been abused in a nursing home, assisted living facility, personal care home or group home report your suspicions immediately to Pennsylvania Department of Health (for complaints regarding a Nursing Home/Long Term Care Facility call 1-800-254-5164; for complaints regarding a Personal Care Home/Assisted Living Facility call1-877-401-8835). Then contact me at 267/907-9600. Together with our team here at Stark & Stark we have a proven track records of representing our clients throughout the Delaware Valley in Elder Abuse cases. Of course, the best thing you can do for your loved one is to everything you can from preventing abuse in the first place. Make sure you ask them if they are having problems and if the say they do BELIEVE THEM and do everything you can to carefully investigate the problem.

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Alimony reform appears to be gaining momentum across the country.  Last month New York State modified their alimony laws by adopting a formula for setting alimony thus making alimony fairer and easier to predict.  Massachusetts is currently considering a bill that would cap the duration of alimony based upon the length of marriage.

Are these reforms a good idea?  Certainly the use of a formula to determine alimony will take much of the guess work away from parties and their lawyers which should, in turn, lead to more cases settling rather than being tried before a judge.  Additionally, the formula should put an end to extreme alimony awards and make the awards much more consistent in each case.

What happens in a Bucks County or Montgomery County Divorce?
Pennsylvania follows a similar “formula” type approach as New York State just adopted.  But Pennsylvania only applies this to “temporary alimony” (also known as alimony pendent lite) which is in effect until the Divorce is finalized.  To determine an alimony award (or support after the marriage is over) Pennsylvania, and the majority of other states, use various factors such as: length of marriage; respective income of each party; assets distributed to each party; ages and health; marital misconduct; etc.  The use of these factors, and which factors are more heavily weighed, varies dramatically from Court to Court and Judge to Judge.  As a result alimony awards are highly unpredictable.

Changing alimony awards from a gamble to something more predictable should make the divorce process much fairer and reduce litigation.

If you are considering a divorce or even just separation, it is important to consult with an attorney to discuss how much, if any, support you can expect to receive and for how long.

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Depositions are normally held in either the office of the Plaintiff’s attorney or the office of the Defendant’s attorney. Typically the following individuals are present: the Plaintiff, Plaintiff’s attorney, Defendant(s), Defendant(s)’ attorney, and a stenographer.

Deposition Instructions: During your deposition, you may hear the following instructions prior to the deposition taking place:

• Reminder that your testimony is under oath and has the same force and effect as if you are testifying in open court;
• Listen to the question carefully and if you do not understand the question, say you don’t understand the question;
• Allow the question to be asked completely before answering to avoid talking at the same time.  The stenographer cannot record two people talking at the same time;
• Provide verbal responses.  Since a stenographer is recording the deposition, only words can be recorded.  Gestures or shaking of the head cannot be recorded;
• You may be asked if you are under the influence of any substance that would effect your ability to understand the question(s) or provide answer(s) to the question(s);
• If you need a break during the deposition for any reason just say so and a break will be provided.

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After an accident the police, insurance companies and attorneys often ask whether the injured party was wearing a seat belt. In a trial, the defense may attempt to introduce evidence of failure to use a seat belt to prove that the injured party was “comparatively negligent” and therefore contributed to their injury, seeking a reduction of the damages recoverable.

Pennsylvania has a statute, 75 Pa. C.S.A. section 4581 (e) that prohibits the introduction of evidence at trial of whether a seat belt was used even in the situation where a seat belt may have limited or avoided the injury. There are very limited exceptions to the rule but they are based on the evidence being admissible for some reason other than trying to prove that the injured person’s actions were a cause of his injuries.

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In 2009, the United States Census reported that of the 285.7 million individuals in the U.S. population over 5 years old, 20 percent (or 1 in 5) speak a language other than English at home. Approximately 8.6 percent speak English less than “very well”.

Access to healthcare for this Limited English Proficiency [“LEP”] group is challenging. In an article “Access to Hospital Interpreter Services for Limited English Proficient Patients in New Jersey: A Statewide Evaluation”, Glenn Flores, M.D., et al, reported on studies that found fewer preventative care measures such as mammograms and PAP smears, a higher probability of drug complications and hospital admissions and misunderstanding of “diagnoses, medication and follow-up” as well as other risks.

The Pennsylvania Patient Safety Authority recently released the results of a study of the challenges in Pennsylvania in “Managing Patients with Limited English Proficiency” in its March 2011 Pennsylvania Patient Safety Advisory. 

The authors reviewed 232 cases reported to the Authority in 2004-2010 that were characterized as LEP-associated problems. Of these, 40 percent involved falls by patients, 27 percent were errors or complications in surgical procedure and 6 percent were related to medicine. 

The cases disclosed several deficiencies. The most glaring deficiency is the failure to offer the LEP patient access to a trained interpreter. One study that was cited by the Advisory indicated that an interpreter was not provided to 46 percent of the LEP patients visiting an Emergency Room.

Equally problematic is the fallback position wherein a friend or family member fills in as an interpreter. In a comment by Dr. Flores, the provider may rely on an individual who accompanies the LEP patient to the hospital, quite possibly someone without language proficiency in both languages.
   
According to the Advisory, some protections exist for individuals under federal law, specifically Title VI of the Civil Rights Act of 1964, and federal guidelines published by the U.S. Department of Health and Human Services and national standards on informed consent published by the National Quality Forum. In Pennsylvania, the Advisory cites Pennsylvania Title VI as covering physicians and hospitals that obtain federal money.   
   
Access to such services has been found to improve not only patient satisfaction but also to improve the quality of care.

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Tyler Tomlinson, Esq., a shareholder in Stark & Stark’s Accident & Personal Injury Group, is currently representing several of the individuals that were seriously hurt when a large tree landed on a covered wagon tour in Pennsylvania’s Grand Canyon.

On June 2, 1011, Mountain Trail Horse Center was showing the Pennsylvania Grand Canyon to a group of senior citizens from New Jersey. It was towards the end of their trip when a large oak tree came crashing down on a covered wagon on the Pine Creek Trail. The trunk split off from the base of the main trunk and crashed across the middle of the horse-drawn wagon sending ten people to hospitals in helicopters and ambulances. 

Fortunately, Wellsboro Fireman’s Ambulance Association, Inc., personnel had trained for a similar situation and were already at the station for a hazardous materials drill.  It took all of the ambulances in Wellsboro, Pennsylvania, plus several more from nearby, and a few helicopters to evacuate the injured to safety.

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In my last blog entry I discussed past and future wage loss as items of economic damages recoverable by a person injured through the negligence of another. In this entry, I will discuss past and future medical bills, as well as miscellaneous expenses which are also considered economic damages recoverable in a personal injury lawsuit.

Past Medical Bills: This damage is the amount of medical bills that have been incurred to date, as a result of the injured party’s medical or psychiatric treatment. The amount of the bills must be reduced by the amount that was paid either by the injured party’s insurance carrier if it was an automobile accident or by a health insurance carrier if any of the medical bills were paid by the injured party’s health insurance. Recovery of past medical bills may become complicated in cases where a party has received medical benefits from their health insurance carrier because often these insurers have liens against the total final recovery from the negligent party in the case. A lien is created when a third party (health insurance carrier, etc.) pays bills that are ultimately recovered from the party responsible for the incident that is the basis of the law suit. Different types of insurers may have different types of liens, but in all cases it is necessary to analyze the nature of the lien and how it may affect the injured party’s recovery.

Future Medical Bills: This damage represents the amount of money that the injured party’s
doctors project will be necessary to cover all future medical treatment. This amount is a “best guess” based upon the nature of the injury, the types of treatment available, and the injured party’s age. Attorneys often use life care planners who are specialists in evaluating future medical needs to help them predict future medical costs. Because medical expenses increase faster than the general rate of living expenses, attorneys also utilize the services of an economist to determine the real dollars that will be necessary to fund all of the future expenses.

Miscellaneous Expenses: Each case is different and needs to be treated on an individual basis. For that reason, an injured party may experience an economic loss that is particular to their life or life style. In that event, it is the job of the attorney to present the specific loss in a way that is calculable and easy for a jury to understand.

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There are 3 - 4 separate parts to Medicare which become available to you once you are 65.  If you are already getting social security benefits when you turn 65, your Medicare Part A starts automatically.  If you are not already receiving Social Security benefits when you turn 65, you should sign-up for medicare several months before your 65th birthday.

Medicare Parts
Part A, or hospital insurance, covers inpatient hospital care and certain follow-up care.  You have already paid for this as part of your Social Security taxes while you were working. 

Part B, or medical insurance, pays for physicians’ services and some other services not covered by Part A.  This coverage is optional, and you must pay for it in monthly premiums.

Medicare Advantage (Part C) plans are available in many areas. People with Medicare Parts A and B can choose to receive all of their health care services through one of these provider organizations under Part C.   These organizations are often referred to as "Medicare HMOs"

Part D, or prescription drug coverage, pays for prescription drugs.  This insurance is also optional and requires that the recipient pay monthly premiums.  If you have a limited income, you may qualify for extra help paying the premiums, deductibles, and prescription co-payments.
 

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