In 2013, the Pennsylvania legislature passed “The Benevolent Gesture Medical Professional Liability Act”, which is colloquially referred to as “The Apology Law”.  This statute allows a health care provider to apologize to a patient for a mistake or perceived mistake, or a bad outcome, without fear that the apology will be used against the health care provider in a medical malpractice lawsuit.  As long as the apology or benevolent gesture is not made after the lawsuit has been filed, or the apology is not also a statement of negligence or fault, it cannot be later used against the health care provider, in a court of law.

One of the intended results of the law was to lower the number of medical malpractice lawsuits filed, however, it has had little or any effect with regard to this statistic so far.

Not every complication which occurs during or as a result of surgery is actionable under the law.  Some complications are foreseeable and a risk of certain procedures. In addition, just because a surgery is unsuccessful does not mean that a surgeon was negligent.  However, many complications are the result of a preventable mistake, and if the patient has a complicated or prolonged recovery and requires subsequent surgeries to correct the mistake, that person may have a viable medical malpractice case.

Here are a few surgical errors that may be considered malpractice and should be investigated by a lawyer specializing in medical malpractice litigation.

  • Surgical Equipment Left Behind:  If a surgeon leaves behind a clip, a clamp, a needle, or even something larger, such as a hemostat or tweezers, that surgeon has been negligent.  If an infection results and/or subsequent surgery must be performed to remove the object, and there are sufficient damages, it may be worth investigating this claim.
  • Wrong Organ Removed:  If, for whatever reason, a surgeon removes the wrong organ or limb from the wrong side of the body, this is clearly negligence which should be investigated.
  • Organ and/or Tissue Damage:  Some tissue damage during surgery may be acceptable or necessary but if a surgeon accidentally cuts or damages an organ, or tissue, or a nerve, and this mistake results in substantial impairment to the patient, the surgery should be investigated

If you or a loved one has been injured due to a complication or mistake, contact Stark & Stark today for a free consultation.

Philadelphia Court of Common Pleas Judge Albert J. Snite has denied Defendant, Parx Casino and Racetrack’s motions for post-trial relief following a $7.8 million verdict awarded to the widow of a horse jockey who was killed when he was trampled by a horse at the racetrack. On the morning of May 30, 2010, jockey, Mario Ramiro Calderon of Croydon, Bucks County, was exercising his horse, Cassidy Blue, when a chicken entered the track and frightened the horse causing it to buck and throw Calderon off the saddle. Calderon’s foot remained caught in the saddle and the horse repeatedly kicked him in the head and chest.  The jockey was pronounced dead approximately three hours later.  Calderon’s attorney alleged that Parx created an unsafe environment by allowing chickens to roam free on the racetrack even though they were aware of at least one prior incident where a jockey was injured when a chicken frightened his horse.

Following a $7.8 million verdict entered in favor of Calderon’s widow, including $5 million in punitive damages, Parx sought post-trial relief arguing that Plaintiff’s should not have been allowed to introduce photographs and video taken over a year after the accident for the purpose of showing how chickens were able to wander onto the track. Parx argued that this evidence was not relevant as it did not accurately portray the track conditions on the date of Calderon’s incident. Judge Snite disagreed, stating that the photographs and video were relevant to show how chickens were able to get onto the racetrack and to corroborate and/or impeach the testimony of various expert witnesses on this issue.

Dogs are one of our most trusted and loved companions, and there are millions of dog owners in America. While pets can be cute and cuddly, they can also attack and cause injury to their owners and others. The U.S. Centers for Disease Control and Prevention estimates that dogs bite 4.5 million people each year.

Pennsylvania Dog Bite Law:

The state of Pennsylvania’s laws regarding dog bites hold the owner of the dog liable for certain damages depending upon the circumstances. As such, the victim of the dog bite will fall into a specific category, and will be able to file a suit to recover compensation depending upon the category into which he or she falls.

The first category is for victims bitten by a dog that has previously bitten another person or shown intention to do so. This is known as the “one-bite” law. In the case that a dog that has already bitten another person bites a new victim, then the most recent victim is entitled to full compensation under the “one-bite” law.

However, there are also protections in place for those attacked by a dog that has never before bitten someone. In these cases, a victim can file suit to recover compensation for medical expenses alone if the injury is non-severe. But a victim may pursue a claim for medical expenses and other losses or damages if the injury is severe.

A severe injury is defined as an injury that results in:

  • disfiguring lacerations that require sutures;
  • cosmetic surgery; or
  • broken bones.

Victims who may not meet these categories may recover full compensation if the owner acted negligently or violated a law. If you’re unsure whether you fit into any of these categories, consult with us at Stark & Stark.

The danger continues, but devices are helping avoid this danger.  More and more each year we hear about the horrific accidents which occur as a result of operators of passenger cars and commercial vehicles being distracted by use of cell phones, even the use of phones for texting while driving.  Although Smart phones have begun to incorporate software which can be put into “safe driving mode” and disallows an operator of a vehicle to text while driving.  These phones sense the motion, companies are working to provide products that will eliminate any ability to have drivers’ texting while the car is moving.   One company in particular out of Roanoke County, VA, a high tech start-up company known as Origo, launched a product in 2013 with the sole intent of preventing drivers, whether they be of passenger vehicles or commercial trucks, from picking up the phones to email or text.   The product known as Origo Safety is a design which creates an ignition interlock system which prevents texting while driving.  This device prevents a vehicle from starting unless a driver’s cell phone is placed in a dock which is mounted in the interior of the car.   Vehicle operators can then only use the phones via Bluetooth while driving and cannot perform any manual tasks on their phone.  

Over the past many years use of cell phones while driving has been estimated to be the cause of 28% of motor vehicle accidents in this country involve operators of vehicles using cell phones and texting.   (National Safety Council 2011).                 

Medical errors which occur in U.S. hospitals remain one of the most poignant issues that receive little attention according to the Chairman of the Senate Subcommittee on Primary Health and Aging.  Approximately 15 years ago there was a study reported by the Institute of Medicine which drew attention to the issues that needed improvement in hospitals and focus on preventable medical errors.  

Ashish K. Jha, M.D., MDH is a practicing General Internist and is a Professor of Health Policy at the Harvard School of Public Health and is a newly elected member of the Institute of Medicine.  He recently testified before the Senate Subcommittee on Primary Health and Aging and stated that if the question is “are patients clearly safer in U.S. hospitals today than they were 15 years ago?”,  “the unfortunate answer is no”. Dr. Jha focuses his research on improving quality and reducing costs. The Subcommittee Chairman, Senator Bernie Sanders convened the panel in order to raise awareness to the fact that premature deaths associated with “preventable harm”, to hospital patients total approximately 400,000 per year, more than four times higher than what was reported in 1999.   Senator Sanders even at one point called the current system and hospitals “dysfunctional, profit oriented and not patient centered”. He further has advocated a need for Federal Legislation through the Health System to stress fundamental system redesigns and make safety a part of the “culture of the institution”.   Dr. Jha even said “until we get, to the point where the CEO of the  hospital is lying awake at night worrying about patients safety, I don’t think we’re going to move the needle”.  

If you or a loved one has been injured, contact Stark & Stark today for a free consultation.   

In December, 2013 the Federal Motor Carrier Safety Administration (FMCSA) proposed changes to allow all States to obtain results from adjudicated citations related to roadside inspection violation data collected in the MCMIS.   Much of this data is driven pursuant to the condition under the Code of Federal Regulations that States participate in the Motor Carrier Safety Assistance Program (MCSAP) and States must establish programs that insure accurate and timely motor carrier safety data are reported so that appropriate violation data is part of the FMCSA data systems.   A large part of the focus with regard to this new program was dismissed citations.  There was significant commentary that even though citations were dismissed does not always mean that the violations did not occur at the time of the inspection and therefore dismissed citations should not be the sole basis for removing violations from inspection reports in the database.  Under the new reporting program, if citations associated with the violation under the Federal Motor Carrier Regulations is dismissed without a fine or Court costs or there is a not guilty finding then that violation will be removed from the database.  However, if there is a conviction of a lesser charge there will be a notation that there was a resultant conviction of a different charge so critical convictions are not masked or hid through the reporting of the data.  This will help avoid critical convictions even if for lesser charges from failing to appear being masked through the MCMIS program.  These are convictions that should be part of the available data.                              

With the summer officially underway and many people, adults and children, will be on the roads on bicycles.  Riding a bicycle is great exercise and help to the environment.  However, given the number of car on the road it is imperative to understand safe protocol while sharing the roads with cars.  Here are ten tips for bicyclists to keep safe on the roads.

  1. Always wear a helmet
  2. Always obey traffic lights and signs
  3. Always use hand signals before turning or stopping
  4. Ride in the road about 2 to 3 feet from the curb
  5. Ride in a straight line and do not weave
  6. Watch carefully for cars
  7. Maintain eye contact with other drivers before turning
  8. Ride in the same direction as the traffic flow
  9. Avoid road hazards such as potholes, wet areas, pooling of water, gravel, debris etc.
  10. Avoid riding at night

NASCAR may issue an edict before tomorrow’s race at Michigan International Speedway that makes it mandatory for drivers to stay in their cars until safety personnel arrive. Tracks around the country have changed their rules after Kevin Ward Jr.’s death in a sprint car race.

Ward was sent into the wall when his car was bumped by Tony Stewart’s in a dirt-track race on Saturday night in Canandaigua. Ward got out of the car and walked onto the track, where he was hit by Stewart.  Authorities are still investigating whether to file criminal charges against Stewart.

Brewerton Speedway and Fulton Speedway, New York dirt tracks under the same management, announced new rules that drivers would be required to stay in their cars during an accident.

"If a driver, for whatever reason, exits a car on the track during a caution period, the race will automatically be placed under a red flag and all cars will come to a complete stop," a news release on the tracks’ website says. "A driver may exit a car if requested by a safety crew member or if safety warrants in cases such as a fire. Drivers that exit a car without permission, for whatever reason, are subject to fine and/or suspension at the discretion of track management."

Recently in New Jersey State Court, suit was filed alleging that CVS Pharmacy Redness Relief Drops were tainted or contaminated.  The plaintiff, Gregg Schweck put the drops in both eyes and immediately felt extreme pain, burning and detected a smell of bleach according to the Complaint which has been filed.   If in fact it is determined that these drops were tainted, CVS would be facing claims of liability under the theory of res ipsa loquitur which creates the presumption of negligence as a result of the nature of the injury i.e. the injury could not have occurred but for negligence.  

Although CVS has denied that the drops were tainted or contaminated, the suit proceeds on and to the extent there is no formal recall by CVS, customers beware should they experience any similar circumstances.  The CVS which is alleged to have been the seller of the contaminated eye drops is a store on River Road in Edgewater, NJ with the sale occurring in late March, 2014.  

Over the years, pharmacies such as CVS have been found to be liable for not only dispensing or selling contaminated products, but for dispensing wrong medication.    It is important to retain any remaining product should there be any experience of illness or injury from a product purchased from a pharmacy or pharmaceutical chain so that serial numbers, lot numbers and manufacturing dates can be utilized in the claims presentation process. If you or a loved one has been injured by a product, contact Stark & Stark today.