Medical Malpractice
Wednesday, May 26th, 2010Medical providers, such as doctors, surgeons, nurses, therapists, hospitals, and nursing homes are all part of the health care delivery system upon which we rely. When one of these providers renders negligent care which causes injury, compensation may be due to the injured victim.
Medical Malpractice, What is it?
Malpractice simply put is negligence in performing a professional act. Medical providers are required to exercise reasonable care in accordance with the standards of care for the profession involved. If a doctor, surgeon, hospital, or other medical provider, acts or fails to act in a manner that deviates from the accepted standard of care, then that provider may be liable for money damages. Before a provider will be found liable for malpractice there must also be a finding that the deviation from the standard of care caused the injured party’s condition or made the condition worse. In Pennsylvania, a plaintiff may also prove his/her case by virtue of the health care provider’s negligence, if there was an increase in the risk of harm to him/her or a decrease in the chance of avoiding injury.
How Do You Prove a Medical Malpractice Claim?
The hardest part of any malpractice investigation is getting an expert opinion that supports the claim of professional negligence. It is virtually impossible to pursue a medical malpractice claim without an expert witness. The expert must be able to render an opinion that the defendant provider fell below the standard of care and that the deviations from the standard of care caused injury to the plaintiff. As one might suspect, it is very difficult to get an expert from the local medical community to testify against a colleague. This difficulty often requires the use of experts that are geographically distant. It also subjects those experts to cross examination as a “hired gun.” If the expert was selected by an expert locator service there is even a greater chance of the expert being labeled as a “hired gun.” In our firm we try to find the best expert that has not made a career out of testifying. The defendant medical community usually has little difficulty getting colleagues to testify that their actions did not fall below the standard of care.
In order to help prove your case you need to be your own investigator. Ask questions of your doctor. Sometimes what is said is unguarded and revealing. At times defendants’ statements are admissions that can be legally decisive in court. There is occasion that excuses given for a poor medical outcome are not substantiated in the medical records which may be persuasive to a jury.
The referring physician, who sent you to the surgeon you suspect caused you injury may be a great source of information. However, do not expect a local doctor to willingly testify about his/her observations of negligence. On many occasions our clients have told us that their family doctor told them that the specialist “really messed up.” When a follow up phone call is made to talk to the family doctor there is usually no willingness to discuss the specialist or the “mess up.” However, you should not discount the value of comments made by family doctors, nurses or other health care professionals. Even the comments made with the understanding that you will not call them as witnesses let’s you know that perhaps there has been a medical error, and that you need to look elsewhere for follow up care as well as getting a medical-legal opinion.
If you suspect malpractice do not confront the defendant health care provider until you get a copy of your records. Do get a copy of your records to get a second opinion. When getting a second opinion listen carefully and ask the second opinion doctor how your condition occurred. Even the second opinion doctor’s silence may be revealing from an informational standpoint. If you do want to confront the doctor suspected of malpractice, try to have a witness present, such as a spouse or close relative.
In fairness to medical practitioners not every unfortunate result is falling below the standards of care. Jurors are told just that. The suspected malpractice must be one that is not just a different school of thought on how to treat a patient, but a medical error. Not only must you prove an error, but also that the error has or will make a difference in the outcome.
Medical Malpractice, Frivolous Lawsuits, and the Current Climate
As of this writing there is a move by lobbyist on behalf of the medical profession to limit the rights of injured malpractice victims. The doctors are saying it is time to put an end to “lawsuit abuse.” What these people fail to mention is that the courts are not necessarily friendly to malpractice cases. You cannot get to a courtroom without an expert witness who has already said that the doctor or hospital has fallen below the standard of care. The days are long since past that cases are brought in the hope of a quick settlement. Doctors are exercising their rights under the “consent to settle” clauses in their insurance contracts. The doctors do not want settlements to go on a national data bank of cases settled by them. Yet the information in that data bank is not obtainable by the injured plaintiffs. Further, in all Pennsylvania counties the jury verdicts are consistently in favor of defendant medical providers. Even in the most favorable venue for malpractice cases the statistics reveal that two out of three cases are won by the defense. The insurance crisis is believed by many trial attorneys to be more a function of the insurance market forces and not due to actual losses.
As a practical matter, our firm accepts only those cases in which we are able to find an expert that will stand behind an opinion of malpractice and the case has significant damages. These cases are expensive cases to handle. We work on a contingent fee basis. If we do not win, we receive no payment for legal fees. We take only cases that are meritorious. A frivolous lawsuit hurts everyone, including attorneys who represent plaintiffs. So the next time you hear that there are too many frivolous malpractice lawsuits, remember the source of this propaganda.
If you believe you, a friend, or a close family member is a victim of medical negligence, please give us a call for a no charge consultation.
Written by Frank P. Murphy
Workers Compensation
Wednesday, May 26th, 2010When a person is injured at work it can be one of the most frustrating and difficult experiences with the legal system. The injured worker suddenly has a hundred questions, and no one to answer them. The employer tells the employee one thing, the Workers’ Compensation insurance carrier says another, and the medical examiner hired by the company may be telling the employee something altogether different. If what you see or are told does not make sense or you are unsure of your rights, you should consult with an experienced workers’ compensation attorney.
Who Can Make A Workers’ Compensation Claim?
Employees who are injured on a job can make such a claim. This seemingly simple statement is in fact a very complex inquiry. Are you an employee, or will your employer contend that you were an independent contractor? Will your employer concede you were “on the job” or will the employer contend that you were on your own time? Are you “injured”, or is your condition one that was not caused by work, but just coincidentally happened at work? These are just some of the issues that can come up in a workers compensation case.
What Is Covered Medically By Workers’ Compensation?
An employee that is injured at work is entitled to reasonable, necessary and related medical expenses to treat the work related injury in accordance with the Workers’ Compensation Act as amended by Acts 44 and 57. In other words you do not have general health insurance that pays everything on an indemnity basis. A workers’ compensation carrier will only pay those treatments and procedures that are reasonable, necessary and related to the work injury. Further an employer/workers’ compensation carrier, in most circumstances, is able to direct the injured worker’s treatment for the initial ninety days of injury. An employer/carriers right to direct treatment depends on certain posting requirements.
Nothing is more frustrating to an injured worker than being told helpful treatment is not being approved. Many times an employer/carrier engages in a course of conduct aimed at preventing or minimizing treatment without following the provisions of the Act. Then of course there is the “Independent” medical exam to which an employer/carrier sends the injured worker. It is absolutely amazing how many injured workers are found not to be in need of treatment or not injured at work by these “Independent” examiners. An injured employees has medical treatment rights. What the employee does not know will hurt him/her.
An injured employee has many rights, including the right:
- to a second opinion before 90 days expire.
- to file a petition to have the medical treatment sought approved.
- to file a petition to correct the injury description.
- to treatment with a provider of his or her selection after 90 days.
- to appeal any decision of Utilization Review regarding necessary treatment.
- to refuse medical exams by the employer if more than once every six months.
Injured employees should not fear that he or she has no rights. If you feel that you have questions concerning your rights you should contact an experienced workers’ compensation attorney.
What Wage Benefits Are Covered By Workers’ Compensation?
An injured employee is entitled to two-thirds of any wage loss caused by a work related injury up to the statewide maximum average weekly wage as determined by the Department of Labor and Industry for the year of the injury. There are also certain minimum payments that apply as well. So if for example you earned less than $403.50 per week in 2008 you would receive 90% of actual wages earned. Many times a dispute arises as to what is included in wages. For example car allowance is part of wages but health insurance is not. Overtime actually worked in the past is required to be used in the calculations not just base pay. Commissions and bonuses are included in the calculations as is additional part time income that by virtue of your injury you can no longer perform.
In practical terms if you earned less than $62,946 per year at the time of your injury or less than $1,210.50 per week you will be entitled to two-thirds of your earnings. If you earned more than that amount your weekly benefit is capped in the year 2008 at $807.00 per week.
What Do You Do When Your Compensation Carrier Tries To Stop Your Wages?
If you are receiving workers’ compensation wage payments, the carrier can not stop your weekly checks without an agreement by you to do so, or by an Order from a Workers’ Compensation Judge. What usually happens is that the employer/carrier gets the idea that you can work, maybe not at your old job, but somewhere doing something. First thing the carrier/employer does is have you examined by a physician of its choosing. If the physician states in a report that you can return to some form of work, then the employer/carrier sends you a “Notice Of Ability To Return To Work.” This warning notice advises you of your alleged ability to work and the legal consequences of not returning to work.
The next thing the employer/carrier might do is to make a specific job offer at the employer with or without restrictions as outlined in the medical report. If there is no offer of a specific job, then the employer/carrier might hire a vocational examiner to find work available in the market place, who in turn will notify you of these “opportunities.” Or the employer might choose to have the vocational examiner assess your earning capacity based on doing a labor market survey of available jobs in the regional economy that fit your medical restrictions.
Once any of these assessments occur, the employer/carrier will likely file a petition to reduce or stop your compensation payments based on the medical or vocational opinions. This will be in the form of a Petition to Modify, Suspend or Terminate benefits. In addition the employer/carrier will be asking the Judge to immediately stop payments. This is called a supersedeas request. If it is granted, then your benefits will stop. You obviously need an attorney before the supersedeas hearing. You should contact an experienced workers’ compensation attorney in our firm as soon as the request for a medical exam occurs.
Why Else May I Need An Attorney In A Workers’ Compensation Case?
You may need an attorney for some of the following reasons:
- to correct the amount of weekly benefits.
- to correctly describe the injury for the records.
- to fight unreasonable requests for medical exams.
- to defend attempts to reduce or eliminate benefits.
- to reinstate previously stopped or reduced benefits.
- to get medical bills paid.
- to get appropriate medical treatment.
- to help you negotiate resolution of your claims to a lump sum.
Lump sum settlements are called Compromise and Release Agreements. The correct valuation of a claim for lump sum settlement is something that needs experience and understanding of how the system works.
Where Can I Find Out Official Information?
The official website for the Bureau of Workers’ Compensation can be accessed by clicking here www.dli.state.pa.us/landi/cwp/view.asp. Then click on workers’ compensation links to get to the Bureau’s information page. There is a good Frequently Asked Question (FAQ) section
How Do I Protect My Rights?
Do not sign any documents until you consult with an experienced workers’ compensation attorney. Feel free to call the experienced attorneys at Murphy Woodward & Haskins at 610-272-4222, or you can e-mail us at fpm@fmurphylaw.com.
There is no fee for initial consultation and all cases are taken on a contingent fee basis.
Slip and Fall Injuries
Wednesday, May 26th, 2010Injuries caused by slips, trips and falls are everyday occurrences. These injuries could be at home, in a public place, on a sidewalk, at work or in a commercial establishment. One of the initial reactions to almost every individual who slips, trips or falls is embarrassment. The person feels extremely embarrassed that he or she has fallen to the ground. He or she looks around to see who may have seen him or her and tries to get up as soon as possible and walk away so as not to be further embarrassed. This is a normal human reaction. However, it is frequently a reaction that makes proof of a case very difficult. If for example, you tripped, slipped or fell as a result of coming into contact with a foreign substance, i.e. liquid coming from a meat case at a deli department in a grocery store; or ice in a parking lot as you are walking towards your car, it becomes extremely important to be able to identify the substance that caused your fall, where it was located, the dimensions of the slippery surface, and the potential source from which the foreign substance came. So, if you are in a situation where you slip and fall in a supermarket near the deli counter, land on the ground and get up and walk away and then report it to the manager ten minutes later after you start feeling significant pain it may be too late. If you return to the spot where you fell and there are no markings on the floor and there is no foreign substance on the floor that indicates what, if anything, you fell upon, your ability to pursue such a case without your being able to identify what substance was on the floor, its size, and where it most likely originated, is greatly reduced.
There is also a natural inclination for people who are sitting in judgment either by way of being an insurance adjuster, arbitrator, judge and/or jury to denigrate or look suspiciously upon people who slipped and fell as though there is always some fault on the person who fell. People frequently are asked the question by insurance company defense lawyers, “Why didn’t you see the danger if you were looking where you were going?” This ignores the reality of how people actually walk. As people are looking ahead they are not scanning immediately below their feet. If one turns a corner in a supermarket aisle and slips and falls on a liquid product leaking from an end-shelf display, it is nearly impossible for that person to perceive the spill prior to the fall. This is the way a normal person walks and looks around the corner. People do not walk with their head down or there would be many more injuries from people bumping into objects because they were not looking ahead.
There is a tendency for people to believe that it is not appropriate to bring a claim where you were a participant in your own injury by virtue of having tripped, slipped or lost your balance. Pennsylvania operates on principles of general fairness. Pennsylvania has adopted the Comparative Negligence Standard. This allows fact finders to weigh relative fault for an incident. In the case where somebody is walking on a sidewalk and does not see an icy discharge from the side of a building during winter time, a jury and/or finder of fact may conclude that the person should have seen this and assess some percentage of fault. However, an assessment of a percentage of fault of fifty percent or less does not deprive the injured person of a remedy. Given the above example, if a jury and/or judge were to conclude that a person walking down a sidewalk perhaps should have been more aware of his or her circumstance and concludes that person is 20% at fault, this does not mean that the injured person cannot recover. It means that if that person’s injuries were assessed at $100,000.00, that person will only be able to collect $80,000.00 or eighty percent (80%) given the comparative nature of fault. As long as the injured party is not greater than fifty percent (50%) negligent, the person can recover their relative portion of fault from the wrongdoer.
Many times the only way to prove a case of an inexplicable fall is to determine what body mechanics were involved in the particular circumstance. In numerous cases handled by Murphy, Haskins & Dengler there have been situations where architects and/or engineers were necessary to talk about the human factors involved in someone walking up and down a set of steps or entering and/or exiting a building. Many times the building itself is defective. In one case where a young 12 year old girl was playing in an apartment complex running in and out of the entrance door with her cousin, she accidently put her hand through a pane of glass which sliced two nerves in her dominant hand causing considerable disability. On its face, there appeared to be a situation where the young girl was predominantly at fault because of the horseplay in which she was engaged. However, after investigating the door in question, it was learned that the particular apartment complex had decided to save money when fixing glass panes in the entrance and exit doors by using “plate” glass and not the Code required “safety” glass. It is well known that users of exit and entrance doors frequently push upon the glass either intentionally or inadvertently and, therefore, all building codes in the last 30 years require that safety glass be used in entrance and exit doors. Safety glass would have eliminated any chance that this young girl would have had lacerated tendons. As a result, our firm was able to obtain a substantial recovery for this young victim. Likewise, there have been numerous examples of people who have inexplicably lost their balance and could not understand how that could have happened. Some might write this off to advanced aging or poor concentration. Frequently, our attorneys have found that the person was stepping from a non-standard step. Most entrance and exit ways are required to have steps that are of a certain height. When steps are too short or too tall and outside of the standard expectations, the human brain reacts differently and is signaling the body that it is about to fall because they should have reached the sidewalk or next step by now and since it has not done so the body then prepares itself for falling and shifts balance which then causes the person to lose balance. The science involved investigating slip and fall cases is sometimes obvious and sometimes requires expert testimony.
What should you do if injured in a slip and fall? First, you should recognize your surrounding circumstance and determine what, if anything, caused your slip, trip or fall. Was it the slippery surface of your shoes, in which case it would not likely result in recovery. Is it the overly slippery floor such as a marble floor in an office building with no mats that became wet by virtue of people coming in tracking water and shaking out umbrellas. This situation is clearly foreseeable by the building owner. There should be walk off mats to absorb moisture from the outside in inclement weather so that the slippery floor does not become more slippery. Did you slip on ice? If it is in the middle of an ice storm in a parking lot, then there may not be any likelihood of recovery. If, however, it is four days after a snowfall and the snow that would normally have been shoveled by a prudent landowner or homeowner was left to pack down into a hard sheet of ice, the law does allow a recovery. Another thing that should be looked at is whether or not there were alternative methods of travel. The law is particularly difficult on people who are making claims who had the ability to travel along a safe path but chose the dangerous path, i.e. the pedestrian who decides to leave his or her car and walk across the icy area when there are less dangerous paths, because it is more convenient is going to have a difficult time proving a case. If, however, the entire parking lot has icy patches all through it, one cannot be faulted for choosing a path that appeared to be safe but, in fact, was not.
The first thing to do is to report the slip and fall to someone in a position of authority at the location where the fall occurred. It is important to document by way of complaint to the homeowner, landowner, or business owner your injury as soon as practical. Obviously, if you are taken away by ambulance you may not be able to do that. The documentation of being transported by ambulance is usually sufficient to justify why such a complaint was not made promptly. If on the other hand you are walking into a large department store and you slip and fall on moisture that is near the entranceway and none of the counter people or store personnel come to your assistance, it is in your best interest to look at your surrounding circumstances, note whatever you can note, take a picture with your cell phone camera if you have the presence of mind to use one and go and report the fall and bring someone back to show the foreign substance or reason why you fell. It is also important for you to try to document the existence of any injuries as early as possible.
If you have any questions concerning any injury you may have had by way of a slip, trip or fall, please do not hesitate to contact any of the attorneys at Murphy, Haskins & Dengler
