“Defensive Medicine” is a phrase used when doctors order extra tests or perform additional procedures because they are concerned about being sued for “missing something.” However, studies do not support the idea that the extra tests or procedures are warranted and actually reduce the risk of a physician being sued.
In fact, numerous studies have shown that the greatest predictor of whether a physician is likely to be sued is whether he or she has been sued before. In other words, physicians who have been sued once are much more likely to be sued again. Between 1991 and 2005, 6% of all doctors in the United States were estimated to be responsible for 58% of all malpractice payments.
Recently, New York Times journalist Robert Pear published an article on the Precision Medicine Initiative (PMI). According to Mr. Pear’s article, in November or December of 2016 you may be selected to join the Precision Medicine cohort, a long-term population-based health research study that will provide valuable research on disease and illness in the United States.
Government scientists are seeking a million volunteers willing to share information on their genetic background, environment, and lifestyle choices. The PMI hopes to collect ten (10) years of data related to diet, exercise, smoking, drinking, sleep patterns, and other social behavior that will permit researchers to identify possible risk factors for health, including from air pollution and lead levels in drinking water.
McDonalds has recalled 29 million Happy Meal toy fitness trackers in the U.S. and Canada because of reported rash and burn injuries. The McDonalds “Step It” trackers included two versions of brightly colored, wearable tech: one that counts steps, and one that signals walking speed with flashes of light. These Step It “toys” are not high dollar adult wear and yet the injuries reported—rashes and burns—are eerily similar to injuries from Fitbits that the company was forced to recall in 2014. Just three weeks ago, another company, Basis, recalled its Peak tracker for causing burns and blisters.
For those unaware, government immunity is the doctrine that provides federal, state, and local governments with immunity against certain legal claims arising out of torts committed by a government employee, official, or agent. The doctrine comes from English law, which held that the crown could do no wrong. What this means today in Pennsylvania, in practical terms, is that in order to sue the Commonwealth of Pennsylvania, your case must fall into one of several exceptions to government immunity.
One of the exceptions to government immunity is the motor vehicle exception, which seeks to hold the government responsible for motor vehicle accidents caused by government employees acting in the scope of their employment as a government employee. The motor vehicle exception to government immunity essentially waives immunity where the negligent act that caused the plaintiff’s injuries involves the movement and operation of the government owned or controlled vehicle or its parts.
A recent BMJ (British Medical Journal) study listed medical errors as the third leading cause of death in the United States. The BMJ recommends that healthcare providers make prevention of patient harm the top healthcare priority and institute policy and procedure changes directed toward that objective.
The study points out that the medical cause of an injury or death on the death certificate doesn’t reflect that “communication breakdowns, diagnostic errors, poor judgment, and inadequate skill can directly result in patient harm and death.”
If you are partially at fault for a fall you may still be able to recover damages from a property owner. In most states your recovery will be reduced by your percentage of fault for the injury. Different states have different rules on how this applies. Some states use a strict “contributory” negligence standard of liability based on your actions. Most states, however, have switched to varying levels of a “comparative” negligence standard that balances the award against contributing fault for the injury.
- Contributory Negligence: In states that follow the Contributory Negligence standard, if you are even 1% at fault you cannot recover any damages.
- Pure Comparative Negligence: Under the “pure” comparative fault rule, which is used in New York, no matter who is more or less at fault, the property owner will pay the amount that equals the percentage of their contribution to the injury. If you are 90% at fault and the property owner is 10% at fault, your recovery will be 10% of the awarded damages.
- Modified Comparative Negligence: New Jersey and Pennsylvania use the “Modified” or “51%” rule. Under this standard, if the injured party is at least 51% at fault, the property owner pays nothing. If the injured party is less than 51% at fault, that person can recover the percentage of negligence assigned to the property owner. For example, if you are determined to be 40% at fault for the accident, your award will be 60% of the amount deemed appropriate for the injury.
There are also complex issues associated with claims against more than one person or entity regardless of amount of contribution to the injury. In some cases, a plaintiff can recover the damage award from only one party in the case—the party at fault. In other cases they can recover all or part from any of the parties. For example, let’s say you file a claim against two property owners—the store owner and the owner of the building where the store is located. In court your comparative liability is determined to be 20%, and each of the property owners is allocated 40% responsibility for the injury. Instead of trying to collect 40% from each owner, you may be able to collect 80% from one or the other and let them wrangle with each other to be reimbursed. This makes it easier for a winning plaintiff to be “made whole” as quickly as possible. In these cases it is even more important to have an experienced attorney who can determine whether or not there is a good cause of action, analyze the chance for recovery, and make the case against more than one defendant.
If you have been involved in a slip and fall accident it is recommended that you consult with an experienced attorney in your area.
You slipped, you lost your balance, and you fell down and got hurt. Does this automatically mean it is the fault of the property owner? The answer is, “Maybe.” If the property is in disrepair or the owner knew about the risk and ignored it, you could have a claim. But before you start planning on the owner paying your medical bills, you should think about the conditions of the property, the steps the owner took to prevent an accident, and whether or not those steps were reasonable. Ask yourself these questions and then call an experienced, knowledgeable attorney who can assess your options for insurance claims, or, if warranted, for a negligence claim:
Congratulations to Stark & Stark Shareholder Tyler Tomlinson for being selected as one of the National Trial Lawyers: Top 100 Trial Lawyers List for 2016*. The Top 100 Trial Lawyers List is “an invitation-only organization,” which is comprised of the foremost trial lawyers across every state and region. The selection process for every candidate is rigorous, and is completed through a “multi-phase objective and uniformly applied process which includes peer nominations combined with third party research.”
Congratulations to Stark & Stark Shareholders Tyler Tomlinson and Jeffrey Krawitz for their election to the Disciplinary Board of the Supreme Court of Pennsylvania. Mr. Tomlinson is a new Hearing Member for the District II Bucks County board, while this is Mr. Krawitz’ reappointment to the same aforementioned board.
The Disciplinary Board is a peer-review system, because an attorney is entitled to a hearing in front of a panel of volunteer attorneys before discipline can be imposed on said attorney. Each appointment is a three-year commitment.
Shareholder Tyler Tomlinson is a member of the Accident & Personal Injury Group at Stark & Stark in the Yardley office. Mr. Tomlinson concentrates his practice in wrongful death cases, and has extensive experience handling cases involving automobile accidents and slip-and-fall cases.
Shareholder Jeffrey Krawitz is also a member of the Accident & Personal Injury Group at Stark & Stark in the Yardley office. Mr. Krawitz concentrates his practice in casualty litigation which focuses on complex injury, coverage issues, and bad faith claims.
To learn more about the Disciplinary Board of the Supreme Court of Pennsylvania, please click here.
In a recent blog post, Tesla revealed that the Model S vehicle that was involved in a fatal accident on May 7 in Williston, Florida was in Autopilot mode at the time of the collision. This marks the first known fatality in a Tesla vehicle where Autopilot was active. The National Highway Transportation Safety Administration is currently in the midst of an investigation of the cause of the collision which is believed to include a determination of whether the Autopilot system was working properly at the time of the accident.
According to various news sources, the accident occurred when a tractor trailer drove across a divided highway and in front of the Tesla vehicle. Due to the height of the trailer, the Model S actually passed under the trailer with the initial impact occurring to the vehicle’s windshield. Tesla CEO Elon Musk stated on Twitter that the radar system used by the Autopilot feature did not help in this case because of the height of the trailer. According to Musk, the system “tunes out what looks like an overhead road sign to avoid false breaking events.” Tesla believes that the Autopilot system would have prevented the accident if the impact had occurred to the front or rear of the trailer.
This accident represents the first in what will undoubtedly be many similar accidents that will raise questions regarding the safety of Autopilot systems. Tesla is one of the first automakers to utilize such technology and they have reiterated that they require customers to sign an agreement acknowledging that the system is in a “public beta phase” before they can use it. Some driving experts have criticized Tesla for introducing an Autopilot feature too early believing that the system gives drivers the false impression that the car can handle anything it encounters. By way of contrast, GM has only tested their Autopilot feature privately and Volvo has indicated that they intend to take full liability for their cars when the feature is activated.