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Standing Up For Your Rights

ALERT: Drug Related errors during surgery

 

A recent report concerning research conducted at Mass General Hospital in Boston found that almost 50% of surgeries performed at that hospital had a drug-related error.  The lead author of the report stated that, “Medication errors are at least as high as many other hospitals.”  The most frequently observed errors were mistakes in labeling, dosages and medications that should have been given but were not.  One of the most common errors concerns the labeling of syringes.  Often, on average, ten medications are given to a patient during surgery.  More than one-third of the observed errors injured patients including life-threatening mistakes.

 

ALERT: York Hospital, Infection

 

According to the most recent report, another patient has died as a result of a bacterial infection which occurred during open heart surgery at York Hospital.  These types of infections are slow moving, and the symptoms may not develop for years later.  York Hospital has notified over 1,000 patients who have had open heart surgery between October 1, 2011, and July 21, 2015.  We are currently investigating and researching a case on behalf of a client who underwent open heart surgery.

 

If you or a loved one has been injured in a workplace accident, contact an attorney experienced in uninsured/underinsured motorist who will represent you with dedication and tenacity. We encourage you to call David B. Dowling, Esquire to schedule a free consultation and analysis of your case.

 

ALERT: nursing home neglect

 

A recent Pennsylvania verdict, as reported by a legal publication, illustrates that bedsores or sacral wounds can be a compensable injury under certain circumstances.  Frequently these types of injuries develop due to neglect in nursing homes when the nursing staff does not turn and reposition the resident frequently.  In this recent case, the charting by the staff did not support repositioning the patient every two hours.  The staff also failed to complete a Braden Scale Test for predicting the patient’s risk of developing pressure ulcers.  Expert testimony in the case stated that these types of pressure wounds should not develop unless the wounds are unavoidable.  Federal Guidelines state that wounds are considered unavoidable if the progression of the underlying disease contributes to the decline and appropriate interventions have been aggressively implemented but have not changed the course.  The defense argued that the patient was noncompliant.  Nevertheless, the jury found in favor of the plaintiff and awarded over $600,000.00.

Not every case of pressure ulcers would warrant a lawsuit, but all cases of serious injury due to nursing home neglect should be investigated.  Please call me for a no charge review of a potential case.

 

What is underinsured motorist coverage?

 

If you are injured in an automobile accident and the at-fault driver is underinsured, you may collect from your own insurance company provided your policy has underinsured motorist coverage. Whether or not the driver of the at-fault vehicle is underinsured is a fact specific inquiry. The minimum amount of liability insurance required by law in Pennsylvania is only $15,000, and many drivers carry only the minimum. In other words, underinsured coverage pays for your injuries and damages if you are injured by someone who does not have enough liability insurance to fully compensate you.

 

For example, if the at-fault driver had only $100,000 of liability insurance and your claim had a value of $200,000, you would have a potential underinsured claim for $100,000. Insurance companies in Pennsylvania are required to offer the option of underinsured motorist coverage. Unfortunately, some people waive this coverage without fully realizing how vital and necessary it is. It is insurance which you pay for, which can directly compensate you for your injuries. In addition, you can "stack" the underinsured motorist coverage available for the number of vehicles on your policy which can substantially increase the amount of your coverage. For example, if your underinsured motorist coverage is $100,000, and you have two vehicles on the policy and you have elected to "stack" the insurance, you have available $200,000 of underinsured motorist coverage. You should never waive underinsured motorist coverage.

 

 

WEBSITES, SOCIAL NETWORKING - CAUTION

 

A recent decision illustrates the harm that can occur when victims involved in litigation or potential lawsuits discuss their case or injuries on social networking sites. A recent decision has held that information contained on Facebook and Myspace may be discoverable or obtained by the defense. In this recent case, the defense argued that they were entitled to this information "to determine whether or not the plaintiff has made any other comments which contradict his disability and damages claim". The Court ordered the information discoverable and required the plaintiff to provide his user names, log-in names and passwords.

 

Natural Gas Explosion

 

Natural Gas explosions are frequently catastrophic events causing severe burn injuries and death. Explosions can occur from poor maintenance of the gas lines by a utility company, actions of workers and contractors digging near gas lines and building owner neglect. Mr. Dowling handled his first natural gas explosion case in 1981. If you or a family member has been injured due to a natural gas explosion, you should call a natural gas explosion attorney, we encourage you to contact us to schedule a free consultation and analysis of your case call 888-660-1646.

 

why the supreme court was wrong in the westboro baptist church protest case

 

On March 2, the day before the five year anniversary of Lance Corporal Matthew A. Snyder’s death, the United States Supreme Court issued its highly anticipated First Amendment decision in Snyder v. Phelps.  It was an emotional issue from the beginning, pitting a grieving father’s right to peacefully bury his son, Matthew, who was killed in the line of duty in Iraq - against the Westboro Baptist Church’s First Amendment rights.  In an overzealous attempt to uphold the sanctity of the First Amendment, the Supreme Court got it wrong.

 

The Westboro Baptist Church (“Westboro”) was founded in Topeka, Kansas in 1955.  Westboro members practice a fire and brimstone fundamentalist religious faith.  They believe that God hates homosexuality, and consequently, hates and punishes America for its tolerance of homosexuality, particularly in the United States military.  Church members picket military funerals, as well as funeral of police officers and firefighters to assert these beliefs.

 

On March 10, 2006, several Westboro members traveled to Matthew Snyder’s funeral in Westminster, Maryland to publicize their message of God’s hatred of America for its tolerance of homosexuality.  Prior to their arrival, they issued a news release saying that they were going to picket because God Almighty killed Lance Cpl. Snyder.  Peacefully, the church members stood on a public street and carried signs, which asserted their beliefs.  These signs, the language of which is important for an understanding of where the Supreme Court went wrong, read, “America is Doomed,” “Fag Troops,” “Thank God for Dead Soldiers,” and Thank God for IEDs.”  Additional signs read, “You’re Going to Hell,” and “God Hates You”.   After the funeral, they reaffirmed the protest by posting an online account or “epic” entitled, “The Burden of Marine Lance Cpl. Matthew Snyder.”  This epic, addressed the Snyder family directly and said “God Blessed You, Mr. and Ms. Snyder with a resource and his name was Matthew…You had a duty to prepare that child to serve the Lord, his God- You did just the opposite–You raised him for the devil.”

 

Matthew Snyder’s father sued Westboro for intentional infliction of emotional distress, invasion of privacy, and conspiracy.  The jury was instructed that it could consider the signs held by the protestors, as well as the content of the online epic.  It was instructed as to the distinction between speech of public concern, which is protected under the First Amendment, and speech of private concern, which generally is afforded less protection.  The jury awarded Mr. Snyder $10.9 Million Dollars.  The Court affirmed the jury’s decision, but reduced the damages to $5 Million Dollars.  A three-judge Appellate Court reversed, and Mr. Snyder appealed to the Supreme Court.

 

The Supreme Court framed the question, as follows.  “Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether the speech is a public or private concern as determined by all the circumstances of the case.”Matters that are of public concern are at the heart of our First Amendment protection.  The Court noted that speech on public issues occupies the highest rung of the hierarchy of First Amendment values.  The Supreme Court acknowledged, as it must, that matters of purely private significance are a different matter altogether. 

The Supreme Court made two fundamental errors in its analysis.  First, the Court held that the content of the Westboro signs related to broad issues of society at large.  Indeed, some of the signs, as repugnant as they are, arguably involved matters of public concern and were protected by the First Amendment.  However, the signs that read, “You’re Going to Hell,” and “God Hates You” were clearly directed at Matthew Snyder or the Snyder’s specifically.  The Court did agree that these signs were different.  But rather than find these signs could have supported the jury’s verdict, the Court simply remarked, “That would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.”  There is no case cited to support this statement, and indeed there could be none.  Two of the signs were clearly personal in nature and not entitled to broad First Amendment protection.  The First Amendment allows recovery by an injured party for defamatory statements that are interspersed with non-defamatory statements.  The signs held by the picketers conveyed a message that was part public and part private.  This distinction was sufficient to uphold the award to Mr. Snyder.

 

The Supreme Court committed a second error by failing to consider the on-line epic posted by Westboro.  There can be little argument that this was directed specifically to the Snyder Family.  The jury was told to consider both the content of the epic as well as the signs in reaching its decision.  Even the Court of Appeals found that the content of the epic could not be divorced from the general context of the funeral protest.  The Supreme Court admitted that it must examine the entire record to make sure that the judgment is correct, but refused to consider the content of the on-line epic despite the fact that it was a basis of the jury’s decision and was discussed by the trial court and the Court of Appeals.  The epic also was mentioned by Snyder in his Brief to the Supreme Court.  Thus, the facts most compelling in favor of Snyder were never considered by the Supreme Court.  The Court failed to follow its own dictates that require that it make an independent examination of the entire record.

Westboro’s picketing and attack on the Snyder Family was carefully crafted.  It was part public, and part private --a distinction that the Supreme Court failed to fully recognize.  Westboro crossed the line of permissible free speech, and the Supreme Court let it get away with it.  Lance Corporal Snyder, his family, and indeed our nation, deserved better from the Supreme Court.

 

Beware of what you say on facebook

Three different Courts in Pennsylvania have now held that what you post on Facebook may be discoverable by the other side in litigation if it is in any way inconsistent with what you said previously or what is alleged in the lawsuit. In the most recent case, arising out of litigation in Franklin County, the Judge ordered the Plaintiff to turn over her Facebook user name and password so that the defense attorney could read all of her postings. This not only included the text but any photographs as well.

The Opinion made clear that there is no general privacy privilege for Facebook information. Therefore, any injured plaintiff should assume that anything that is posted electronically can and will be discovered by the defense. Finally, the Opinion stated that making a Facebook page "private" does not shield it from discovery.

 

THE DISCOVERABILITY OF MEDICAL RECORDS

When a personal injury claim is made on behalf of an injured claimant, the medical records related to that injury are “discoverable” by the insurance company and the defense attorney for the defendant.  It goes without much explanation that in order for the defense to evaluate a claim and determine the severity of the injury, medical records concerning the injury must be reviewed.  But what about a claimant’s past medical history?  Here is where it gets somewhat murky. 

 

Very early in the litigation process, defense counsel will request the names of all past healthcare providers including family doctors, hospitals, therapists, etc.  After the names and identities are produced, defense counsel will then file a notice of intent to subpoena these records.  If the attorney for the injured party does not object, the defense can send a subpoena directly to the healthcare provider and obtain all past records.  Unfortunately, many plaintiff attorneys never object and all past records are then obtained by the defense.  I believe this to be a grave mistake.

 

HIPAA, the Federal Health Insurance Portability and Accountability Act, signed into law by President Clinton in 1996, provides all individuals with protection against unauthorized review or disclosure of their written, electronic or oral health records.  Release of those records is only permissible when the patient provides written consent.  Typically in personal injury litigation, this privilege is considered to be waived by the filing of a personal injury claim related to a particular injury.  For example, if the injury involves a fractured leg, all healthcare records concerning that injury are discoverable and HIPAA does not provide protection.

 

Recent caselaw has outlined the proper procedure for obtaining past medical records.  This procedure, adopted in several Central Pennsylvania counties, requires defense counsel to obtain the records from the plaintiff’s attorney rather than obtaining them directly from the doctor or hospital. This allows plaintiff counsel to review the records for relevance and withhold any records that are unrelated to the accident or injury in question.  This is by far the better approach and the method we use for all cases.

 

 

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The information contained in this website is provided for general informational purposes only and should not be construed as legal advice. The transmission and receipt of information contained on this website, in whole or in part, or communication with David Dowling via the Internet, fax or e-mail through this website will be treated in a confidential manner. An attorney-client relationship is established once we have a signed engagement letter.

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