Medical Malpractice Verdicts at 15 Year Low

There were 101 medical malpractice jury verdicts in Pennsylvania in 2015. Seventy-nine of these verdicts were defense verdicts. The number of medical malpractice verdicts is a fifteen year low. Between 2000 and 2002, there was an average of 326 medical malpractice jury verdicts per year.

Further, the total number of medical malpractice filings in 2015 was 1,519, which is down from an average of 2,733 between 2000 and 2002. The reduction in verdicts and total filings was caused by the 2002 MCare Act, which made it more difficult to file medical malpractice actions in Pennsylvania.

In discussions about tort reform, it is important to know these numbers, which show that tort reform is already in effect and drastically reducing the number of medical malpractice lawsuits in Pennsylvania.The reduction in lawsuits, however, has not corresponded with a reduction in medical costs or insurance premiums.

Is your doctor making money off of unnecessary surgical implants?

The Senate Finance Committee issued a recent report on Physician Owned Distributorships (“POD”s) and their impact on patient care. PODs are

physician-owned entities that derive revenue from selling, or arranging for the sale of, implantable medical devices ordered by their physician-owners for use in procedures the physician-owners perform on their own patients at hospitals or ambulatory surgical centers.

Unsurprisingly, this arrangement creates incentives for surgeons to recommend surgery at a higher rate, with the knowledge that they will get additional income from the use of implantable medical devices supplied by their POD.

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Golden Living nursing homes kill two in Minnesota.

This article from the Minnesota StarTribune describes two recent deaths at Golden Living facilities in Minnesota. One occurred after a resident’s prescription for a blood-thinner was given to the wrong person. The resident who went without the proper medication died of blood clots in the brain. The second death occurred when a resident was given ten-times the prescribed amount of morphine. State investigators concluded that Golden Living “was not monitoring the performance of the nurses and had not conducted annual medication competencies of the nurses.”

Golden Living, one of the nation’s largest for-profit nursing home chains, has had its share of troubles in the past. It should come as no surprise that errors such as these occur in a company where Pennsylvania nursing employees had to fight to earn $15 per hour. Given the tendency of for-profit nursing home chains to value profit over quality care (as noted in this article), private causes of action against these facilities are the main tool to deter abusive conduct.

Discussing the Limitations of PA State Nursing Home Inspections

Here is a good article from ABC27 News about the nursing home state inspection process. The article describes how Golden Living nursing homes might be inappropriately adjusting staffing levels during inspections. The article notes that, although inspections are supposed to be unannounced, the Pennsylvania Attorney General’s lawsuit against Golden Living alleges that Golden Living increases staff numbers when inspections occur. Sometimes office and administrative staff are used to “provide direct care to residents.” This activity is confirmed by witnesses quoted in the article who had family members staying in Golden Living homes. Continue reading

Some Clarity on FMVSS Application to Self-Driving Vehicles

It’s still anyone’s guess when self-driving cars will become commonplace. Elon Musk has stated that Tesla will produce an autonomous car in two years. While that prediction is perhaps overly optimistic, McKinsey & Company predicts mass adoption of self-driving vehicles by 2030. The Institute of Electrical and Electronics Engineers predicts that by 2040 up to 75% of vehicles on the road will be autonomous.

When self-driving cars are adopted, they will affect a large number of professions. Personal injury lawyers, auto-body workers, chiropractors, towing companies, and insurance salespeople will all be impacted.

In a recent letter to Google, the National Highway Traffic Safety Administration (NHTSA) responded to a November 12, 2015 request from Google for interpretation of a number of provisions of the Federal Motor Vehicle Safety Standards (FMVSSs). The letter is dense. There are two things that I want to focus on. Continue reading

Hall v. Episcopal Long Term Care

I was recently reading Hall v. Episcopal Long Term Care, 54 A.3d 381 (Pa.Super. 2012). This case does a nice job of describing the deplorable conditions that we see in nursing home abuse cases, and the conditions that can lead to punitive damages and damages for corporate negligence.

Hall involved a resident who suffered from neglect while at the Philadelphia Nursing Home, which was managed by Episcopal Long Term Care. The resident died on January 17, 2005 from cerebral vascular disease. Continue reading

Nursing Home Arbitration Clauses: Be Careful When Signing

Dealbook has an interesting article on nursing home arbitration clauses. The article tells the story of Elizabeth Barrow, who was strangled by her roommate in a Massachusetts nursing home. The nursing home had notice of the roommate’s potential to harm others, yet still placed her with Ms. Barrow.

When Ms. Barrow’s son tried to bring a lawsuit against the nursing home, he learned that he had signed admissions paperwork on his mother’s behalf that contained a clause requiring disputes to be submitted to private arbitration. The case proceeded to private arbitration. That process revealed something that is an ongoing concern in cases involving large companies and the private arbitration process: The arbitration firm had previously handled 400 cases for the nursing home’s law firm, calling into question its ability to be impartial in the matter. In Ms. Barrow’s case, the arbitration firm ruled in the nursing home’s favor without comment. Continue reading

More Bad News for Golden Living Nursing Homes

The news keeps getting worse for Golden Living, which operates thirty-six skilled nursing facilities in Pennsylvania. Golden Living is defendant in an action filed by the Pennsylvania Attorney General’s Office. Complaints in that matter were filed in July and September 2015. The amended complaint can be found here.

That action alleges, among other things, that continent residents were left in diapers because they could not be helped to go to the bathroom. Residents were left in dirty diapers, were not properly repositioned, were not properly cleaned or dressed, did not receive proper exercises, and were not provided all meals. The facilities are alleged to be understaffed, with increases in the number of staff during state inspections. It is also alleged that records are falsified under direction or fear of management.

It is now being reported that, at an October 22, 2015 inspection of a Golden Living facility in East Pennsboro Township, Pennsylvania, maggots were found in a patient’s feeding tube.

For those of us who practice in the area of nursing home abuse, this conduct is not surprising. For individuals who support tort reform, it is important to keep these situations in mind. As we limit the ability of victims to bring lawsuits against facilities like Golden Living, we increase the likelihood that this conduct will continue.

 

The Impact of Tort Reform in Pennsylvania

Many people do not know the extent to which tort reform has progressed at the state level. This page has some good information on the impact of Pennsylvania’s 2002 MCARE Act. The MCARE Act placed additional demands on medical malpractice plaintiffs. Most importantly, it required that they bring the lawsuit in the county where the malpractice occurred and it required a “certificate of merit” by a qualified physician prior to filing. The number of medical malpractice cases filed statewide from 2000 through 2014 and the percentage of defense verdicts in cases that went to trial are below: Continue reading

The Notice Requirement in Premises Liability (Slip and Fall) Cases

From a plaintiff’s perspective, one of the most difficult parts of a premises liability case is proving that the defendant had notice of the dangerous condition that caused her injuries. Generally, the plaintiff must prove that the defendant knew or should have known of the dangerous condition. Below, I provide portions of my response brief to a motion for summary judgment in a trip and fall case. The defendant argued that it was entitled to judgment in its favor because we couldn’t prove that it had notice of the dangerous condition. I have omitted identifying information, facts, analysis, and conclusions, so that all that remains is the law.

  1. Because Plaintiff was a business invitee, Defendant owed her the highest standard of care owed to any entrant upon its land.

The standard of care Defendant owes to Plaintiff depends on whether Plaintiff was a trespassor, licensee, or invitee when she entered and remained on Defendant’s property. Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). Because Plaintiff was on Defendant’s property for a business-related purpose, she is a business invitee. Emge v. Hogosky, 712 A.2d 315, 317 (Pa. 1998). Defendant concedes that Plaintiff was a business invitee. (Defendant’s Brief at pg. 9).

The duty of protection that the landowner owes to a business invitee is the highest duty owed to any entrant upon land. Treadway v. Ebert Motor Company, 436 A.2d 994, 999 (Pa.Super. 1981). “[T]he landowner is under an affirmative duty to protect the business visitor not only against dangers which he knows, but also against those which with reasonable care he might discover. The business visitor enters landowner’s premises with implied assurance of preparation and reasonable care for his protection and safety while he is there.” Id.

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