Stories of neglect are all too common in nursing homes all across America. Its estimated that 14,000 nursing home residents have died from malnutrition and dehydration alone. In addition, nearly 160,000 residents have had at least one pressure ulcer, yet only 35 percent of those with the most severe ulcers have received special care for their wounds. Personal Injury Trial attorneys, acting on behalf of injured and neglected residents, have obtained agreements from nursing home corporations to greatly improve patient monitoring and care procedures.
In a case involving medical malpractice, the Pennsylvania Superior Court determined whether the trial court abused its discretion by precluding the defendant doctor from offering expert witness testimony in the field of radiology. At issue was whether the doctor held sufficient qualifications and expertise, beyond what is considered ordinary.
Dr. Andrew Albert, an anesthesiologist, administered anesthesia to Pauline Abramowich at the Memorial Medical Center in Johnstown, Pennsylvania, while she underwent a scheduled surgery (laparoscopic cholecystectomy). Mr. and Mrs. Abramowich claimed that Dr. Albert negligently intubated Mrs. Abramowich, resulting in a one-centimeter esophageal laceration that required a secondary surgical procedure and further hospitalization and treatment.
The Abramowiches brought this lawsuit against Dr. Albert, and Dr. Albert intended to testify as an expert in anesthesiology. An expert diagnostic radiologist, Dr. Robert Hurwitz, provided testimony relating to diagnostic imaging and its impact on the Abramowiches’ theory of liability.
In all Pennsylvania personal injury suits, the allegedly at-fault party must owe a duty to the injured person. If the defendant fails to uphold his or her duty under the law, and an injury results because of the failure, the injured person can receive compensation for the expenses incurred, which include lost wages and medical bills. If the behavior that led to the accident was particularly egregious, there is the possibility that punitive damages may also be available. Even if a claim is filed and a civil action started, investigations for personal injury actions are on-going, which may lead to the discovery of other avenues of legal relief or reveal additional damages the injured person may be entitled to receive.
In Gallo v. Conemaugh Health System, Inc. (2015 PA Super 85), a gentleman sought treatment for a toe that was blackened and odorous. The patient had previously seen a doctor for the toe and was scheduled for an amputation, but he arrived at the emergency room to see if he could have it amputated earlier. The original treating physician was not available, so another doctor assumed care and scheduled the amputation the next day. A separate doctor performed the anesthesia consult and ultimately administered the anesthesia, but he failed to perform a physical examination, cardiac evaluation, pulmonary assessment, chest x-ray, or electrocardiogram test in his pre-surgical evaluation, despite the patient’s medical history of having cardiac and pulmonary medical conditions. The man died either during surgery or immediately after the amputation from a heart attack.
The administratrix of the patient’s estate filed a wrongful death and survival action against the hospital, the physician’s group, and the individual doctors involved in the man’s surgery. The administratrix alleged that the anesthesiologist, who had previously obtained eight DUIs from several states and lost his medical license in another state, was impaired by alcohol. During the initial phases of litigation, the administratrix filed a Motion to Compel specific responses to questions regarding his alcohol treatment. The trial judge allowed the request to compel, reasoning that the doctor had waived his privilege by denying the allegations of impairment as a result of alcohol use. The doctor appealed, countering that he was not required to disclose that information under federal and Pennsylvania law.
In Pennsylvania, when parties enter into an agreement with one another, part of that agreement may include a requirement to arbitrate a claim in lieu of filing a lawsuit through the Commonwealth’s court system. Arbitration operates similarly to the judicial system, with an arbitrator deciding the case rather than an elected judge or jury. Agreements that require submission of claims to an arbitrator are governed by the Pennsylvania Uniform Arbitration Act. If an agreement defers to arbitration rather than the civil justice system, the damages that can be recovered by an injured party can potentially be smaller than what they would have been if a civil action was filed.
The Superior Court recently considered an appeal by a healthcare entity that objected to the trial court’s refusal to send a set of wrongful death and survival claims to arbitration. The civil suit originated from the injuries and ultimate death of a woman who lived in special housing that included non-acute medical care. The woman, while living at this residence, needed hospitalization after becoming unresponsive. Seven months later, she broke her hip and needed surgery at a different medical center. While the woman was hospitalized, a skin tear and redness were noticed on her tail bone, but no pressure ulcer.
The woman was then moved to a different nursing facility under the same company that owned her original residence. At this point, three pressure ulcers , or bed sores, were noticed, and in a week the woman gained 15 pounds from the added fluid and began experiencing cardiac issues. The pressure ulcer began to increase in size and was filled with infected fluid that needed to be drained. By the next month, the wound was extremely infected, and the woman had pitting edema in her legs. The woman was transferred twice after that to be treated for the wound, but she eventually died in hospice care.
Experienced litigators are crucial in order to effectively try a personal injury lawsuit. The majority of suits do not go to trial and are often settled before the trial date is reached. However, for those that do go to trial, knowledge of the law and what’s permitted by the civil rules of procedure is essential to obtaining a favorable verdict. Personal injury defendants’ main goal is to eliminate or minimize liability to the injured party, and they will attempt everything in order to avoid paying damages that the injured party is awarded.
In the medical malpractice case of Deeds v. Univ. of Penn. Medical Center, the trial judge allowed the attorney for the defendant to tell the jury that the plaintiff’s injuries are being adequately cared for because she qualified for government benefits. The child’s mother twice sought emergency medical care during her pregnancy from the same hospital. The first visit was for back and abdominal pain, and the second visit was for headaches, uterine contractions, and blurred vision. The medical records show that she had a physically small placenta and a history of sickle cell disease and physical trauma. Two days after the second visit, the mother delivered the child through an emergency cesarean section.
The attorney for the child appealed after the jury found for the defendants. The Superior Court of Pennsylvania acknowledged that the standard of review when considering a new trial is to uphold the decision of the trial court unless a clear abuse of discretion occurred. The Court found that the trial court did abuse its discretion by permitting the attorney for one of the defendants to talk about the availability of payments from another source. Continue reading
While asbestos is no longer used as popular insulating material, its presence in Pennsylvania and across America is still felt. A once-popular mineral used for its sound absorption, strength, and resistance to fire, it is now synonymous with serious and fatal illnesses, including asbestosis and mesothelioma. The fibrous make-up of the substance makes it impossible to escape the lungs once it is inhaled, and it can take decades to reveal itself. Since it is a highly dangerous material, Pennsylvania’s Department of Labor and Industry lists the regulations in place for asbestos removal.
Litigation for claims and damages have stretched over several decades as new cases of cancer and illness fall upon the exposed individuals. As a result, special funds have been created and specific litigation procedures made in an attempt to compensate those who have suffered injury or death as a result of asbestos exposure. The Superior Court of Pennsylvania recently published Krauss v. Trane US Inc., regarding some of these asbestos-specific legal procedures.
The deceased bricklayer worked at many job sites throughout the Southeast United States. His estate claimed that he was exposed to asbestos at many job sites by interacting with several products that contained asbestos. The estate attributed the mesothelioma to the asbestos that landed on his clothes and hair and that was eventually breathed into his lungs. Several of these companies were made a party to the suit. Motions for summary judgment were made by all the defendant companies, which were granted by the lower court. Continue reading
To successfully pursue and recover compensation in different types of Pennsylvania personal injury cases, a unique legal strategy must be considered and used for each case. Some cases, like car accidents, rely on photos of the damage and physical injury, and they benefit from witness statements taken close to the time of the accident. Other cases, like medical malpractice actions, depend more on expert witness testimony to help fact-finders understand the injury and what type of care was or will be necessary for the injured person. All personal injury cases benefit from thorough investigations and experienced counsel, who understand what facts are significant and what can maximize recovery.
The Superior Court of Pennsylvania issued a decision in Pomroy v. Hosp. of the Univ. of Pennsylvania, that discusses the type of proof necessary in a medical malpractice action for a deceased patient with a long history of gastrointestinal health problems. The patient used the same doctor for a long time and informed her that she suffered from a large, possibly cancerous polyp in her colon. Different treatment options were discussed with the patient, since there was concern about the size of the polyp and the high possibility of the perforation of her bowel if it were removed during a colonoscopy. The testimony shows that he explained the colonoscopy procedure would inject saline between the walls of the colon, which would increase the risk of perforation, but he did not explain the exact risk of perforation. Even though the polyp was not cancerous, her treating physician recommended surgery due to its size and referred her to a surgeon. Continue reading
While it is rare to see a cancer diagnosis associated with a personal injury action, there are certain types of cancers like mesothelioma that are caused by negligent and reckless asbestos exposure. Certain workers and family members may have been unnecessarily exposed to asbestos while employed in the construction industry or for a company that manufactures products often used in the construction business. Many civil claims have been filed over the last several decades for those who have suffered from asbestos-related diseases. Recently, the Third Circuit Court of Appeals released a precedential opinion in early September, which reversed a lower court’s dismissal of a class action suit against an employer for its deceptive conduct.
In Williams v. BASF Catalysts LLC, several employees and estates of deceased employees filed suit against a company that produced talc products. The injured parties alleged that the company knew the products contained disease-causing asbestos and actively deceived the employees and family members to avoid accountability and responsibility for damages. The plaintiffs claimed that the destruction of evidence led to the settlement and dismissal of claims that would have been pursued for the asbestos-related diseases. Continue reading
When faced with a serious operation in Pennsylvania, you want your doctor to perform to the best of her or his abilities. In any procedure or examination, surgeons are expected to uphold the standards and practices of their profession. When a doctor fails to provide this level of care, he or she may be held liable through a medical malpractice action. A recent decision in the Superior Court of Pennsylvania, Fessenden v. Robert Parker Hospital, provides an example of what type of evidence is required in a medical malpractice personal injury action.
In Fessenden, the patient underwent an esophagogastrectomy, which removes the lower portion of the esophagus and a portion of the stomach. Soon after the surgery, the patient experienced occasional abdominal pain, which led to an emergency room visit. A CAT scan revealed that a laprotomy sponge had been left in the patient’s abdomen. Within a month, another surgery was performed where the sponge was removed and the abscess, or infection, was drained. A portion of the patient’s gallbladder and the small bowel was also removed. Another surgery was required to drain an abscess, and the patient stayed in the hospital for several days.
In Pennsylvania medical malpractice actions, state statute Pa.R.C.P. 1042.3(a) requires that either a licensed medical expert provide a written statement that affirms there was a reasonable probability that the care, skill, or knowledge exercised did not meet professional standards, that there was a deviation from an acceptable professional standard, or that expert testimony was not necessary to pursue the claim. The patient filed the certificate of merit, choosing the third option, arguing that the fact-finder can infer from the circumstances of the injury that the harm suffered was due to the negligence of the defendant. The hospital countered that the patient failed to show that the harm was caused by the retained sponge. Continue reading
A cancer diagnosis is a trying and often traumatic event in the lives of patients, but to undergo weeks and months of cancer treatment all to discover its misdiagnosis is a travesty. The intensity of unnecessary cancer treatment can cause serious, life-long injuries and require an equal amount of energy and money to repair. Whether you’re from Pennsylvania or outside the U.S., the financial, emotional, and physical burdens caused by radiation therapy and invasive surgeries can quickly become staggering.
Recently, a Ukrainian woman was featured in a report as the recipient of donated medical care to correct the severe deformities and disabilities caused by a misdiagnosis of cancer in her jaw. The woman was hit in the jaw at a basketball game, and the doctors discovered a lump in her jaw. The lump was originally diagnosed as cancer but later identified as a benign cyst. At the height of her original treatment, the woman was down to 79 pounds, homeless, and could only open her jaw a millimeter. Multiple procedures over the course of several months have already begun as doctors seek to replace missing sections of jaw with parts of her leg bone. The surgery costs are estimated to be over a million dollars, which has been graciously provided by a university surgeon in the U.S.
Within the last year, the Pennsylvania Superior Court issued a non-precedential decision that upheld an award of over 14 million dollars to the estate of a man who died after a misdiagnosis of a brain tumor. The misdiagnosed man sought medical care after suffering from severe headaches. A mass was found with diagnostic imaging and doctors at a hospital in West Virginia diagnosed him with gliobastoma multiform, an aggressive type of brain tumor, or possibly a brain abscess. He was diagnosed again at a university hospital in Pennsylvania with the same condition, and he was scheduled for surgery. While waiting for surgery, the man waited in a hospital unit and was supervised by the nursing staff. The day before surgery was scheduled, his pupils began to display an uneven size and he experienced substantial pain. The nurse noted that the uneven size of the pupils indicated increasing pressure on the brain on that side and called the doctor, who did not report to the hospital or conduct emergency surgery. The man’s condition worsened, and surgery was performed, but he eventually died. It was revealed that he actually had a brain abscess, and due to the lack of treatment, he suffered brain herniation. Continue reading