Philadelphia Personal Injury Lawyer Blog

Insurer Lloyd's Syndicate has withdrawn its $215 million lawsuit against the Kingdom of Saudi Arabia and others for providing financing to the 9/11 terrorist attacks.  Lloyd's sued the Saudis and a few of their banks and charities to recoup money it paid out following 9/11 to insured airlines, jet manufacturers, airport authorities, security companies and other parties.

Attorney Stephen Cozen of the Philadelphia law firm Cozen O'Connor said Wednesday that, "I am instructed to make no comments, other than to say the lawsuit was voluntarily dismissed."   The case - filed in U.S. District Court in Johnstown - was dismissed "without prejudice."  When a suit is dismissed without prejudice it can be re-filed on later date.

Withdrawing the case could signify any number of things:  A settlement may have been reached (although unlikely since it was filed just two weeks ago), that it's being handled through diplomatic channels, or that the plaintiff has determined the case is too weak to proceed.

The driver of a pickup truck with tinted windows sped away after striking and killing a woman on Torresdale Avenue in the Wissinoming neighborhood this morning, police said.

A little over an hour later, police found a pickup matching the description of the truck on the Delaware River waterfront nearby.  The owner of the pickup truck reported the vehicle stolen about the time police found it.

Police said the woman, who was said to be 46-year-old, was struck about 6:50 a.m. on Torresdale near Fraley.  Afterward, police broadcast an alert for a blue pickup with tinted windows, silver flames on the side and a custom grill.  About 7 a.m., police found the wanted vehicle at Comly and Milnor Streets, an industrial area a block from the river.

Police were questioning witnesses and the owner of the truck.

SOURCE

A driver who leaves the scene of an accident is not only committing a crime but also a civil offense for which they can be held liable.  In many cases, hit and runs are the result of a drunk driver or a driver under the influence.

Hit and run accidents are disturbing events.  Victims are usually left seriously injured and wonder how they will pay for medical expenses.  Hit and run drivers need to be held accountable for the injuries, pain and suffering, anguish, lost wages and medical bills that they have caused.  

One possible source of benefits is uninsured motorist (UM) coverage.  UM coverage applies where the at-fault driver is not insured.  However, it also covers motor vehicle accidents where the at-fault driver cannot be found, such as in a hit and run accident.  If you are injured by a hit-and-run driver call me for a free consultation.  You may be entitled to compensation for medical treatment, lost wages, pain and suffering, and other costs.

Pennsylvania has an express privilege between mental health providers and patients.  The purpose of the psychologist/patient privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure.  The privilege is based upon a strong public policy designed to encourage and promote effective treatment and to insulate the client's private thoughts from public disclosure. 

42 Pa.C.S. § 5944 provides:

No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L.136, No.52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

The privilege of confidentiality of communications to licensed psychologists and psychiatrists created by 42 Pa. C.S. § 5944 is not absolute.  The privilege may be waived in civil actions where the client places the confidential information at issue in the case.  For instance, if a personal injury claim contains allegations of mental injury or severe emotional trauma requiring treatment, this may result in a waiver of privilege protecting confidential communications pertaining to prior treatment for those conditions.  Courts have held that placing one's mental condition at issue in a civil trial is an implicit waiver of pertinent statutory privileges.

Recently in Gormley v. Edgar, 2010 Pa. Super. 71 (2010) the Superior court distinguished between general allegations of noneconomic damages, which do not warrant discovery of psychiatric/psychological records, and allegation of mental injury, severe emotional trauma requiring treatment or psychiatric/psychological conditions, which do allow for such discovery.  The Court held that averments of "shock, mental anguish and humiliation" did not place a party's mental condition at issue nor result in a waiver of privilege.  However, the Plaintiff's allegation of anxiety, a recognized mental condition, rendered the mental health records discoverable.  

A Royal Caribbean Cruise ship passenger alleges that she was struck and injured by a falling piece of the shower in Stateroom 2547.  Ms. Boden was on a nine day cruise on the "Enchantment of the Seas," a cruise ship owned by Royal Carribean, when she was allegedly injured by the shower and broken metal pieces falling on her. 

Ms. Boden claims she was severely injured as a result of these hazardous conditions.  The Complaint seeks damages in excess of Seventy Five Thousand Dollars ($75,000.00). 

The Plaintiff was required to bring her claim in the United States District Court for the Southern District of Florida due to the ticket that was issued to her at the time of voyage.

Source

Cruise lines typically limit a passenger's choice of "venue" (where you may file a lawsuit).  By imposing venue restrictions, cruise lines hope to limit the number of claims filed against them.  Cruise lines are aware (and hopeful) injury victims will be deterred from bringing suit if they reside in a different state than the predetermined venue.  In addition to limiting where suit can be filed, cruise lines also limit the time in which suit needs to be filed.  In many cases, a passenger's cruise ticket provides for a one-year statute of limitations on personal injury claims - which is shorter than a typical statute of limitations imposed by state statutes.  

Without question, cuise lines have stacked the deck in their favor.  If you are injured on a cruise it is important to consult an attorney immediately to level the playing field.  Call me for a free consultation, I will investigate your claim promptly and help you get the compensation you deserve.

In Passarello v. Grumbine, the Pennsylvania Superior Court found no impediment to retroactive application of the holding in Pringle v. Rappaport in which it explored the history of the error in judgment rule and precluded its use in Pennsylvania on its basis of inconsistency with standard of care.  The error in judgment rule holds that a surgeon could be excused for his negligence by claiming that although in retrospect it appears he made errors during a procedure, he used his best judgment at the time and therefore did not violate the standard of care.

In Passarello, a three judge panel granted a new trial to the parents and estate of a two-month old baby who died while under his physician's care. The trial court gave the jury instruction beyond the standard of care instruction and also discussed the error in judgment rule. The trial judge instructed the jury that "Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence." At trial, defense counsel gave several examples of "error in judgment" to the jury and told the jury that doctors don't practice medicine by textbook and don't have applications on their Blackberrys to look up cures for certain symptoms. Defense counsel asserted that requiring doctors to be perfect is impossible. The Court stated that it was defense counsel's exploitation of the error in judgment charge locked in its decision.

The holding in Passarello reaffirms the Pringle decision which held the error in judgment rule is precluded in Pennsylvania and extends this ruling to apply retroactively to cases which the final judgment of the verdict had not been entered before the 2009 filing date of Pringle.

A Lehigh County jury awarded more than $23 million to a woman who lost portions of both legs to infection almost three years ago.

Attorneys for the 55-year-old Lehighton woman argued that a home care nurse failed to report a bacterial infection in the feeding catheter of the patient, who was being treated for complications from Crohn's disease, and the delay resulted in a near-fatal bloodstream infection in October 2008.  A Lehigh County jury late Friday found the nurse and St. Luke's Miners Memorial Home Care liable, awarding $23.1 million for medical expenses, lost earnings and pain and suffering.

Source:  The Associated Press, Posted Sept. 18, 2011 

I expect many readers will see this headline and jump to the conclusion the jury awarded an excessive verdict.  An "excessive verdict" is a verdict considered by the court as awarding shockingly and unreasonably high damages to the plaintiff even assuming that all the evidence most favorable to the plaintiff is true.  Despite this jumbo-sized award, the verdict will not be considered excessive if it is supported by the "weight of the evidence."  Here, the plaintiff's attorney presented evidence of catastrophic damages, including amputation of both legs, wage loss, lost earnings, medical expenses and pain and suffering.  

In Pennsylvania, where a verdict has been sustained by the lower court, an appellate court will generally not reverse unless the verdict is so grossly excessive as to shock the appellate court's sense of justice.  Nevertheless, it is not uncommon for an appellate court to reduce a verdict which it finds to be excessive under the particular circumstances of the case.   To determine whether the verdict is excessive, the Court will consider what evidence there is to support the award.  Where the injury is manifested by broken bones, disfigurement, loss of consciousness, or other objective evidence, the appellate courts have counted this in favor of sustaining a verdict. On the other hand, when a plaintiff lacks any physical evidence of injury and only supports her allegations with subjective testimony of discomfort, the appellate courts have been more inclined to find the verdict excessive. 

In this case, if appealed, the catastrophic injuries and future expenses may be found to support the verdict as it has no doubt changed the plaintiff's life forever.  Even so, the Court may reduce the award upon appeal if it finds the $23 million verdict punitive or capricious.  

In Pennsylvania, under most circumstances, an employee cannot sue its employer if he/she is injured while working.  Instead, the employee must file for workers' compensation which may cover work-loss benefits and medical benefits related to the injury.  However, if a negligent third party is the cause of the employee's injury, the employee may bring a lawsuit to recover from the tortfeasor.  For example, if a construction worker is hit by a negligent motorist while fixing the road for PennDOT, he/she would be able to file a workers' compensation claim against PennDOT and would also be able to file a lawsuit against the negligent motorist.

Even though the worker may bring both a workers' compensation claim and a third party lawsuit he/she will only be allowed to recovery once for his damages.  The underlying purpose of the Pennsylvania Workers' Compensation Act is to allow the employee to be made whole for his injury, but not receive a double benefit.   To achieve this purpose, the legislature permits an employer to be subrogated to the extent a negligent third party causes a compensable injury.  ("Subrogation" allows an employer to "stand in the shoes" of the injured employee so to transfer the employees claim to the employer.)   The Act provides that the employer be reimbursed for "compensation" payments paid due to the wrongful act of the third party.

What does this mean in regards to your personal injury claim?  Generally speaking, if you receive workers' compensation benefits and then settle your personal injury claim, your recovery will be reduced by the benefits paid by your employer minus reasonable attorney's fees and costs (prorated between the employer and employee).   In Pennsylvania, an employer has an absolute right to subrogation.   Therefore, if the third party claim settles for less than the value of the workers compensation lien, the employee may receive no recovery for pain and suffering.  This scenario is commonplace because settlement values are usually less than a victim's "total damages" due to issues with disputed liability, causation, and damages.   To avoid this inequitable result, it is important to negotiate the workers' compensation lien down prior to settlement.  Usually, lien adjustors will compromise a lien so to facilitate a settlement when risks associated with a jury trial are explained. 

Heffner v. Riddle Memorial Hospital

A Delaware County, Pennsylvania, jury awarded $3.8 million to the estate of a 52-year-old woman who died of sepsis at Riddle Memorial Hospital 14 hours after going to the emergency room with severe constipation.

The award is said to be one of the highest medical malpractice awards, if not the highest, in the county in several years and is one of less than a handful of cases that have gone in the plaintiff's favor in five years.

Source:

Medical negligence (also called medical malpractice) occurs when medical treatment falls below the professional standard of care. Physicians can be held liable for negligent acts or omissions which cause injury to a patient. Inadequate skill, care, and speed are the most common causes of medical negligence claims.

In the above case, the jury found that the house physician and attending doctor failed to diagnose the decedent's Sepsis with adequate speed and failed to use reasonable skill required by a physician under the circumstances. The jury awarded $3 million in Wrongful Death Act damages and $806,785 in Survival Act damages.

This substantial verdict is a win for injury victims in Delaware County. Delaware County juries are notorious for rendering defense verdicts or awarding only nominal damages. For this reason, hospital insurers refuse to compensate malpractice victims with meritorious cases because they know it is expensive and risky for them to go to trial. This award serves as a reminder to defense insurance companies to fairly evaluate claims. Failure to do so may leave them footing the bill on a hefty tab.

Medicare has implemented a $300 threshold for certain Liability Insurance cases.  If all of Medicare's criteria are met, the MSPRC will not recover against the beneficiary's settlement, judgment, award or other payment.

If you're a beneficiary, what does this mean for you?

As of September 6, 2011, if you've received a lump sum settlement of $300 or less, and your case meets certain conditions, Medicare will not recover from that settlement. These conditions include:

1. Your settlement is related to an alleged physical trauma-based incident, not an alleged exposure, ingestion, or implantation, and
2. You do not have any additional settlements related to the same alleged incident.

This threshold specifically excludes settlements where an insurer is paying your medicals bills directly or on an ongoing basis.  This threshold also does not apply if a demand letter was already issued for your case.   

SOURCE

Although this is a low threshold, the bigger story is that Medicare may be starting to adjust its policies to make the system less convoluted.   The byzantine system is a nightmare for any personal injury attorney seeking compensation in a case where Medicare has paid bills.  Medicare's statutory right to subrogation has made it impossible for personal injury attorneys to settle cases expeditiously due to red tape, incompetence and understaffed Medicare offices.   A threshold on liability settlements is a small step in the right direction towards creating a system that is fair for victims.