Articles Posted in Personal Injury

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In a medical malpractice action, Monongahela Valley Hospital (“MVH”) contracted with UPMC Emergency Medicine, Inc. (“ERMI”) to provide staffing and administrative services for its emergency room. Both MVH and ERMI claimed the statutory evidentiary privilege in the Pennsylvania Peer Review Protection Act, 63 P.S. secs. 425.1-425.4 (PRPA) protected from disclosure the performance file of Marcellus Boggs, M.D. (“Dr. Boggs”) that had been prepared and maintained by Brenda Walther, M.D. (“Dr. Walther”), who served as the director of MVH’s emergency department and was Dr. Boggs’ supervisor. Dr. Boggs and Dr. Walther were employees of ERMI. In January 2011, Eleanor Reginelli was transported by ambulance to MVH’s emergency department with what she reported at the time to be gastric discomfort. She was treated by Dr. Boggs. Mrs. Reginelli and her husband, Orlando Reginelli, alleged Dr. Boggs failed to diagnose an emergent, underlying heart problem and discharged her without proper treatment. Several days later, Mrs. Reginelli suffered a heart attack. In 2012, the Reginellis filed an amended complaint containing four counts sounding in negligence. The Reginellis deposed, inter alia, Dr. Boggs and Dr. Walther. At her deposition, Dr. Walther testified that she prepared and maintained a “performance file” on Dr. Boggs as part of her regular practice of reviewing randomly selected charts associated with patients treated by Dr. Boggs (and other ERMI-employed emergency department physicians). In response, the Reginellis filed discovery requests directed to MVH requesting, among other things, “the complete ‘performance file’ for [Dr. Boggs] maintained by [Dr. Walther.]” MVH objected to production of the performance file, asserting that it was privileged by, inter alia, the PRPA. Under the facts presented in this case and the applicable statutory language of the PRPA, the Pennsylvania Supreme Court determined neither ERMI nor MVH could claim the evidentiary privilege: ERMI was not a “professional health care provider” under the PRPA, and the performance file at issue here was not generated or maintained by MVH’s peer review committee. Therefore, the Court affirmed the Superior Court to uphold the trial court’s ruling that PRPA’s evidentiary privilege had no application in this case. View "Reginelli v. Boggs" on Justia Law

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The Pennsylvania Supreme Court granted allocatur to determine whether the Pennsylvania Department of Transportation (“PennDOT”) was liable for injuries caused by negligently and dangerously designed guardrails erected on Commonwealth real estate. Specifically, the Court found the issue reduced to whether the Commonwealth owed a duty of care when PennDOT installed a guardrail alleged to be dangerous. Pursuant to the plain language of the Sovereign Immunity Act, 42 Pa.C.S. sections 8521-8528, the Court found the Pennsylvania General Assembly waived PennDOT’s immunity as a bar to damages caused by dangerous guardrails affixed to Commonwealth real estate. Dean v. Dep’t of Transp., 751 A.2d 1130 (Pa. 2000) did not control under the facts presented here. The Court reversed the decision of the Commonwealth Court and remanded for further proceedings. View "Cagey v. PennDOT" on Justia Law

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The employer, Allegheny County, was ordered to pay $14,750.00 in attorney’s fees under Section 440 of the Pennsylvania Workers’ Compensation Act after the Workers’ Compensation Appeal Board (“WCAB”) determined that the County unreasonably contested its liability under the Act. Though the County sought supersedeas of that order, arguing that the finding of liability was in error, supersedeas was denied. Thus, the County complied with the order and paid the awarded fee to the employee’s counsel. Upon reaching the merits of the County’s appeal, however, the Commonwealth Court reversed, concluding that the County not only had a reasonable basis for its contest, but a prevailing one, and that the employee was no longer entitled to workers’ compensation benefits. Thereafter, the County filed a separate petition before a Workers’ Compensation Judge (“WCJ”) in which it sought reimbursement of the erroneously awarded attorney’s fees from the employee’s counsel. The Pennsylvania Supreme Court granted allowance of appeal in this matter to consider whether a court could order an employee’s attorney to disgorge erroneously awarded, but already paid, unreasonable contest attorney’s fees pursuant to Section 440, when the substantive basis for the award was later overturned on appeal. The Supreme Court found that the General Assembly, in enacting the Workers’ Compensation Act, did not provide any mechanism by which employers could recoup erroneously awarded counsel fees, once paid. The General Assembly contemplated that when a merits appeal is undertaken, a court may grant supersedeas of an order awarding attorney’s fees. Because such a supersedeas was requested and denied in this case, the Court held that the County may not recoup the already paid attorney’s fees from the employee’s counsel. The Court vacated the Commonwealth Court’s order and reinstated the order of the WCAB, which affirmed the denial of the County’s reimbursement petition. View "County of Allegheny v. WCAB (Parker)" on Justia Law

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In this appeal by allowance, the Pennsylvania Supreme Court granted allocatur to consider, inter alia, the collateral order doctrine and whether a plaintiff in a civil personal injury action had the right to have counsel present and to record a neuropsychological examination of that plaintiff by a defendant’s neuropsychologist under Pennsylvania Rule of Civil Procedure 4010. In 2010, Appellee Scott Hafer was operating a motor vehicle owned by his mother, Appellee Paulette Ford. Appellant Diana Shearer alleged Hafer pulled his vehicle into the path of the vehicle that she was driving, causing an accident. As result of the collision, Shearer and her husband Jeff Shearer filed a personal injury action against Hafer and Ford. Appellants’ claims included damages for cognitive harm to Mrs. Shearer caused by the accident, including a closed head injury that resulted in headaches, cognitive impairment, and memory deficits. In preparation for trial, Appellants hired a neuropsychologist to perform a cognitive evaluation. This evaluation, which employed standardized testing procedures, was conducted without Appellants’ counsel or any other third party present. The Supreme Court determined Appellants did not satisfy the second and third prongs of the “collateral order doctrine.” Thus, the trial court’s order disallowing representation during the standardized portion of the neuropsychological examination was not an appealable collateral order as of right under Rule 313 and, consequently, the Superior Court erred in considering Appellants’ appeal. As a result, the Supreme Court did not reach the merits of the underlying issues on which allocator was granted; rather, the order of the Superior Court was vacated, the present appeal was quashed as an unauthorized interlocutory appeal, and the matter was remanded to the Court of Common Pleas for further proceedings. View "Shearer v. Hafer" on Justia Law

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In an appeal by allowance, the issue presented to the Pennsylvania Supreme Court was whether the Superior Court applied the correct statute of limitations for a survival action in a medical professional liability case. In 2005, Elise Dubose was admitted to Albert Einstein Medical Center (Einstein) after she fell in her home and sustained severe head injuries, including anoxia and a brain injury. She was transferred to Willowcrest Nursing Home where Mrs. Dubose suffered malnourishment, dehydration, conscious pain from bedsores, a bone infection, and a sepsis systemic infection. An ulcers located at the sacral region of the spine which Mrs. Dubose developed during her initial hospitalization, gradually increased in size. The sacral ulcer became infected with bacteria from contact with feces. This infection caused sepsis in Mrs. Dubose in September 2007, and she was admitted to Einstein with sepsis. On October 18, 2007, Mrs. Dubose died from sepsis and multiple pressure sores. On August 13, 2009, Robert Dubose, as administrator for Mrs. Dubose's estate, filed a complaint against Willowcrest and Albert Einstein Healthcare Network (collectively Appellants) sounding in negligence and alleged wrongful death. The Supreme Court concluded the statute of limitations for medical professional liability cases in the form of wrongful death or survival actions was two years from the time of the decedent’s death. View "Dubose v. Willowcrest Nur. Home" on Justia Law

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The facts of this matter arose out of a fatal accident involving a collision between a motor vehicle and a pedestrian. In this appeal by allowance, the Pennsylvania Supreme Court considered the admissibility of the pedestrian’s postmortem blood alcohol content (“BAC”) in a personal injury action against a motorist and, whether independent corroborating evidence of the pedestrian’s intoxication was required, in addition to expert testimony interpreting the BAC, before the BAC evidence may be admitted. The Court declined to adopt a bright-line rule predicating admissibility on the existence of independent corroborating evidence of intoxication and instead held that the admissibility of BAC evidence was within the trial court’s discretion based upon general rules governing the admissibility of evidence, and the court’s related assessment of whether the evidence establishes the pedestrian’s unfitness to cross the street. Thus, the Court found the trial court properly exercised its discretion in admitting the BAC evidence at issue and affirmed the Superior Court order. View "Coughlin v. Massaquoi" on Justia Law

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Section 306(a.2) of the Workers' Compensation Act allowed employers to demand that a claimant undergo an impairment -rating evaluation (IRE), during which a physician must determine the "degree of impairment" that is due to the claimant's compensable injury. In order to make this assessment, the Act required physicians to apply the methodology set forth in "the most recent edition" of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment. In consolidated appeals, the Pennsylvania Supreme Court considered whether this mandate violated the constitutional requirement that all legislative power "be vested in a General Assembly, which shall consist of a Senate and a House of Representatives." In 2007, Mary Ann Protz sustained a work -related knee injury. Her employer, Derry Area School District (Derry), voluntarily began paying temporary total disability benefits. An IRE physician evaluated Protz and assigned to her a 10% impairment rating based upon the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (the Guides). Because Protz's impairment rating was less than 50%, Derry filed a modification petition seeking to convert Protz's disability status from total to partial -the effect of which would be to limit the duration that Protz could receive workers' compensation benefits. A Workers' Compensation Judge (WCJ) granted the petition. Protz appealed to the Workers' Compensation Appeal Board, arguing that the General Assembly unconstitutionally delegated to the AMA the authority to establish criteria for evaluating permanent impairment. The Board rejected Protz's constitutional argument and affirmed the WCJ's decision. The Commonwealth Court reversed the Board, finding that the Act lacked "adequate standards to guide and restrain the AMA's exercise" of its delegated power to create a methodology for grading impairment. Derry and Protz appealed. The Supreme Court concluded the Pennsylvania Constitution prevented the General Assembly from passing off to another branch or body de facto control over matters of policy. The Court affirmed the Commonwealth Court's holding that Section 306(a.2) violated the non-delegation doctrine, however, found that Section 306(a.2) was unconstitutional in its entirety. View "Protz v. Workers Compensation Appeals Board" on Justia Law

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Pertinent to this appeal, the Motor Vehicle Financial Responsibility Law (“MVFRL”) required insurers to offer insureds Underinsured Motorist coverage. Subsection 1731(c.1) of the MVFRL stated that any UIM coverage rejection form that does not “specifically comply” with Section 1731 of the MVFRL was void and that, if an insurer failed to produce a valid UIM coverage rejection form, then UIM coverage shall be equal to the policy’s bodily injury liability limits. The Pennsylvania Supreme Court granted allowance of appeal in this matter to determine whether an insurer’s UIM coverage rejection form “specifically compl[ied]” with Section 1731 of the MVFRL if the insurer’s form was not a verbatim reproduction of the statutory rejection form found in Subsection 1731(c) of the MVFRL but, rather, differed from the statutory form in an inconsequential manner. The Court held that a UIM coverage rejection form specifically complies with Section 1731 of the MVFRL even if the form contains de minimis deviations from the statutory form. Because the Superior Court reached the proper result in this case, the Supreme Court affirmed that court’s judgment. View "Ford v. American States Ins." on Justia Law

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In October 2009, Appellees Richard and Joyce Rost filed suit against multiple manufacturers of asbestos, averring that exposure to the defendants’ asbestos containing products caused Richard to contract mesothelioma. Before trial, the Rosts settled their claims against all defendants except for Appellant Ford Motor Company (“Ford”). Over Ford’s objections, the trial court consolidated the case for trial with two other mesothelioma cases. Trial commenced in September 2011, at which time the trial court reminded the parties of a pre-trial ruling, precluding any expert from offering testimony that “each and every breath” of asbestos may constitute an evidentiary basis for the jury to find that the defendant’s product was a substantial cause of mesothelioma. The issue this case presented for the Pennsylvania Supreme Court's review centered on the proper application of the “frequency, regularity, and proximity” criteria in asbestos product liability litigation, seeking to provide further illumination on the principles set forth in its decisions in this area. After review, the Court concluded the trial court and the Superior Court properly applied those principles in this case, and thus affirmed the judgment entered in favor of Appellees. View "Rost v. Ford Motor Co." on Justia Law

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In a medical malpractice case, the issue presented for the Supreme Court's review centered on whether the trial court properly gave an "error in judgment" jury instruction. The underlying case arose out of the death of a two-month-old child while under the care of his pediatricians. Appellees sued the pediatricians. Their experts testified that the doctors deviated from the standard of care by failing to refer the child for further testing. The trial judge held a charging conference and stated that all of the doctors' proposed points for charge would "either be read or covered." The judge, however, did not say which (if any) proposed changes would actually be read to the jury. Appellees did not object at the time. The judge then proceeded to discuss one of the doctors' proposed "error in judgment" charge. Counsel for Appellees objected that the instruction was inappropriate for this case. The judge ultimately included the "error in judgment" charge when instructing the jury. The jury later ruled in the doctors' favor. Appellees filed timely post-trial motions arguing, among other things, the trial court erred in giving the "error in judgment" charge. Approximately one month after Appellees filed their post-trial motions (and before the trial court ruled on those motions), the Superior Court filed its decision in "Pringle v. Rapaport," (980 A.2d 159 (Pa.Super. 2009)). In that case, the trial court had given a charge very similar to the one given here. Approximately one year later, the Superior Court decided Pringle, holding: "such an instruction should never be given because it 'wrongly suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment.'" The trial court here denied Appellees' post-trial motions and entered judgment in the doctors' favor. The Supreme Court concluded the Superior Court applied Pringle correctly to the circumstances of this case. The case was remanded to the trial court for further proceedings.View "Passarello v. Grumbine" on Justia Law