Articles Posted in Pennsylvania

A new hot topic in medical malpractice is infection cases. A Pennsylvania woman who allegedly contracted a staph infection which that resulted in facial scarring while she was working as a prison guard at Graterford Prison in 2003 settled her claim or $226,000. Alas, this was a not a medical malpractice claim but a workers’ compensation claim against the prison.

You can read the full article here (since removed, sorry) which includes a picture of the scarring. Obviously, a successful medical malpractice claim would have resulted in a larger recovery of 90% of the time. Proving a workers’ comp claim – that the staph came from the prison – will generally not be that difficult for an evidentiary standpoint. The hard part of a hospital staph infection case is proving negligence.

The Scope of the Infection Problem

Pennsylvania’s highest court last week in Fitzpatrick v. Natter that circumstantial evidence provided by a plaintiff’s spouse in a medical malpractice lawsuit is sufficient to get past summary judgment in an informed consent malpractice claim. The court found that a Pennsylvania Superior Courty had erred in concluding that Pennsylvania’s informed consent law required the Plaintiff to testify herself about information that was not provided by her doctor.

The Pennsylvania plan to help doctors pay their medical malpractice insurance premiums is on hold in the Pennsylvania legislature. The five-year, $1 billion subsidy lapsed this year when Republicans opposed a Democratic initiative to use the surplus from the malpractice subsidy to expand health care insurance for uninsured adults. The delay in renewing the malpractice subsidy is Governor Rendell’s refusal to renew the medical malpractice subsidy absent a global deal on the health care plan.

The subsidy works in Pennsylvania largely because the revenue source is a 25 cent tax on cigarettes. Accordingly, most people are not bitter that they are subsidizing rich doctors’ malpractice insurance because most people do not smoke. Of course, that money could also go to education, tax breaks, and a host of other worthy causes. I’m not opposing the subsidy, I’m just pointing out its slick political package.

The Pennsylvania Supreme Court disclosed that the number of medical malpractice lawsuits filed in Pennsylvania declined again in 2007, the third consecutive year medical malpractice lawsuits have decline. In fact, malpractice lawsuits have declined some 40% since 2002.

Clearly, the key has been “medical malpractice reform” but the kind of malpractice reform that even plaintiffs’ medical malpractice lawyers largely believe is a good law: the requirement that a doctor certify to a reasonable degree of medical probability that medical malpractice caused the plaintiff injury.

A Lehigh County, Pennsylvania jury awarded a Monroe County woman almost $4 million in a medical malpractice case for failure to diagnose her cancer.

Because the jury found that the Plaintiff was also 35 percent negligent, the total award against the defendant under Pennsylvania’s comparative negligence scheme in personal injury cases is reduced to $2.6 million.

The doctor accused of malpractice had diagnosed the lump as a sebaceous cyst of the chest wall. He told the Plaintiff it was not cancer but that she could have it drained if it became a problem. Accordingly, the Plaintiff’s medical malpractice lawyers argued at trial that the doctor was negligent in failing to recommend follow up testing that would have uncovered her breast cancer before it spread to her bones.

The Insurance Journal reports that a Pennsylvania jury awarded $10.2 million to a teenager who paralyzed in a drunken-driving crash while wearing a lap belt in the backseat of a Volkswagen.

The verdict assigned 51 percent of the liability to the drunk driver, 39 percent to Volkswagen, and 10 percent to the utility company who owned the pole utility to the pole that the driver hit.

There is no way to be sure, but I suspect this case was all about Volkswagen. The drunk driver I’m sure already tendered their policy of insurance, whatever that was. The utility company also settled before trial. But Volkswagen owes Plaintiff over $3.9 million. This sounds like a lot but she has already incurred about $5 million in medical bills.

A medical malpractice lawsuit was filed this week in Pennsylvania by the mother of lung transplant patient who died after he received the cancerous lungs of a 31-year-old smoker. Plaintiff’s medical malpractice lawsuit contends that the doctors at the Hospital of the University of Pennsylvania knowingly misrepresented the identity of the lung donor. The lawsuit also names the doctor who determined the lungs to be suitable for transplant and the organ donation program that provided the lungs.

I can’t speak to the merits of the case. But it is certainly a sad case. The Plaintiff’s son had had pulmonary sarcoidosis – a rare disease that can thicken lung tissue to where it can no longer transmit oxygen into the bloodstream. To receive the gift of life after a transplant—which is always a risky proposition—only to lose it again is tragic regardless of whether the cause of death was negligence or simply bad luck.

Last week, we wrote about how New Jersey might be coming of age and allowing pain and suffering damages as a component of their lost wage claims. The Pennsylvania legislature should also take a long look. Currently, the only way to obtain a significant recovery in a wrongful death case is having financial loss from the wrongful death because Pennsylvania does not allow pain and suffering or any type of emotional loss damages in wrongful death cases. See Marko v. Philadelphia Transportation Co., 216 A.2d 502, 503 (Pa. 1966). Accordingly, the damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had he or she lived, and funeral and medical expenses. But when you lose a spouse or a child, what is the primary loss? It is certainly not economic, and it is not loss of services. It is the loss of your husband or wife, the loss of your child. This is a law that needs to be changed.

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