Some Of Our Actual Legal Cases

Medical Malpractice Cases Are Tough To Win – 7/7/2010

Posted on Wednesday, July 7, 2010

It’s always been difficult to win a medical malpractice case, but in Montgomery County, it’s almost impossible. Even though a surgeon left a device in a patient following colon surgery (an endobag which resembles a butterfly net), the jury still did not award any damages.

While the jury held that the doctor was negligent in leaving the medical device inside the patient, they still felt that his negligence did not cause any harm to his patient. Tell that to the patient who had to undergo an additional surgery in order to have the device removed.

Why do jurors let the doctors off the hook in a medical malpractice case? One reason is that most jurors believe that doctors can do no wrong. Other jurors may feel that a verdict in a medical malpractice case would raise the price of their own health insurance.

These jurors should remember that the next victim of medical malpractice may be a member of their family.

Be Aware Of What Your Underinsured Motorist Vehicle Coverage Does Not Cover – 5/7/10

Posted on Friday, May 7, 2010

Be aware of what your underinsured motorist vehicle coverage does not cover.
I represented a West Chester resident who was injured through no fault of his own by another driver who crossed the centerline and struck the bus he was driving. He sustained serious and permanent back and neck injuries. Unfortunately, the offending driver had purchased only the minimal amount of bodily injury coverage mandated by law in Pennsylvania – $15,000. It was clear from the outset that my client’s injuries were worth well in excess of $100,000. Due to the seriousness of these injuries the wrongdoer’s insurance company offered the money before we were forced to file suit. My client had been driving a school bus in Downingtown at the time and under Pennsylvania’s motor vehicle law, an injured person must first look to the vehicle he or she is occupying under which to make a claim for underinsured coverage. Unfortunately, however, Pennsylvania does not require any vehicle owner to purchase underinsured coverage for either the owner or other drivers. In this case, the bus company chose not to provide such coverage for its employees.
Since my client needed life time treatment for his neck and back, he next turned to his private automobile vehicle policy for the underinsured coverage which he had purchased for just such a situation. However, his insurance company had inserted a clause in the auto policy which stated that his underinsured motorist coverage would not be available if he was injured while driving a vehicle which was furnished by another person or corporation and made available for his “regular use.” In this case, the insurance company argued for over a year that the school bus was furnished for my client’s “regular use”! This, despite the fact that he was only using it for employment to transport children. I was able to successfully argue that since he did not take the bus home at night nor use it at any other time, then this exclusion should not apply. The insurance company finally agreed and paid for my client’s injuries.
However, a recent Pennsylvania court decision held that a trash truck which was used by a plaintiff, “even when only used for four days per month for only six months per year”, was enough of a “regular use” to permit his own company to refuse to pay his underinsured losses. What a travesty! Here a consumer was wise enough to buy underinsured motorist coverage for self protection but got ripped off by the insurance company and then further assaulted by the court. This case is presently on appeal and hopefully the higher court will do the right thing and reverse the ruling to protect the consumer.
If that decision had been in effect when my client’s case was ongoing, my client, although he paid premiums for self protection, would have been out of luck recovering any underinsured coverage which he desperately needed.
Please check your policy for this type of exclusionary language and call me with questions. Peter J. Hart

What Is The Value Of A Young Man’s Lost Eye?

Posted on Monday, March 29, 2010

Prior to the accident, my client David was your typical fourteen year old boy who spent his time playing baseball, basketball, soccer, computer games and hanging out with his friends. His family had recently moved to Oxford, Chester County, Pennsylvania from Texas. Although he was new to the area, he made friends quickly and settled into his new school almost immediately. David had been doing very well, both academically and socially in his new Chester County home until the day of the car crash.

On a fall day, several years ago, my client David was riding to his Kennett Square, Pennsylvania Middle School with his older brother. He was in the front passenger seat stopped at a stop sign when a pickup truck traveling from the other road, cut the corner too sharply striking the left front bumper of David’s vehicle causing both airbags to deploy. David was struck in the face by the airbag forcing his right eye to actually dislodge from its socket.

David was rush to Southern Chester County Medical Center’s emergency room where an examination revealed that the globe of his right eye had ruptured. The cornea (the focusing surface of the eye) and sclera (white portion) were both lacerated, and his retina (which converts images into electrical impulses that are sent to the brain for processing) was severely damaged and totally detached. David was rushed to surgery, where a specialist unsuccessfully tried to repair the damage. Eight days post surgery, while still in the hospital, David was returned to the operating room where the eye surgeon discovered during the second surgery that the eye lacerations extended far deeper than had been originally thought. The damage to David’s right eye was so severe that nothing more could be done to save David’s vision. At the age of 14, David lost the use of his right eye.

When David returned to school two months later, he was embarrassed and very self conscious. He had been fitted with a prosthetic sclera shell to make what remained of his natural eye appear more normal. The device fit over the eye like a contact lens to hide the deformities and scarring. Unfortunately, even with the prosthesis in place, it was still obvious that David’s right eye was much different than his left. David would wear the prosthesis while at school and on social occasions, but it was very uncomfortable and irritating. He would remove the shell as soon as his social obligations were over for the day. Without the shell, his eye was substantially deformed, a condition that he would only permit his family to see. He was so embarrassed by the disfigurement that he never dated during the remainder of high school. He sat out every dance and was even too embarrassed to attend his prom. His disfigurement and partial blindness kept him from experiencing the social activities that can make high school fulfilling and memorable.

The insurance company representing the truck driver as well as the insurance company for the passenger vehicle in which David was riding both refused to consider the seriousness of David’s injuries. Both defendants first attempted to defend the case by claiming that David’s vehicle was stopped in a dangerous position because it was in front of the stop sign. However, the police accident reconstruction investigator testified that the vehicle was stopped in a safe position well behind the stop sign. In addition, David was not the driver. The defense attorneys for David’s vehicle argued that the airbags deployed properly and that this was a proper deployment for this type of accident despite the fact that the speed of the glancing impact with the bumper was only five miles per hour.

Other experts stated that due to the low speed and glancing tap to the front left bumper causing nothing more than scrape marks, the air bags should never have deployed. They stated that it was a defect in the manufacture and design of the airbag deployment system which caused them to deploy.

After three years of litigation and as the case drew closer to trial in the Chester County Court, both defendants realized that they were not making traction blaming David’s brother for the accident. They then turned on each other. The defendants spent many thousands of dollars in legal and expert fees blaming my client’s brother and then each other. Finally, when the jury was actually being picked, the defendants finally offered a fair and reasonable settlement – something that could have been avoided years before had they only paid attention to the fact that, through no fault of his own, David’s life was changed forever. They wound up paying significantly more than was originally demanded prior to trial preparation. Peter J. Hart, Esquire

Nursing Home Horror

Posted on Monday, March 8, 2010

We have represented many elderly clients over the years for mishaps in nursing homes. These have included falls from beds and wheelchairs, medication errors, physical or mental abuse and neglect. One of the saddest cases involved an 85 year old client whose bedsores were so severe that the emergency room doctor wanted to bring criminal charges against the family because he thought the woman had been living at home rather than at a nursing home facility.

Our client, Mrs. Jones (a fictitious name), was doing well at a Chester County nursing home until she fell one day and broke her leg. As a result, she became wheelchair bound. After a few months, she began to develop Stage I decubitus ulcers on her buttocks and heel. Instead of giving the medical treatment including ointments, cushions and the proper type of mattress, the nursing home ignored Mrs. Jones’ condition. When the sores worsened, they called in an outside wound treatment company, but they only permitted them to come once a week to care for Mrs. Jones. By the time she was taken to the emergency room, the sores had become grossly infected and foul smelling. We immediately took photographs and a video, which showed that the Stage IV ulcer was down to the spine with floating pieces of bone. Mrs. Jones died three weeks after she was admitted to the hospital.

After we obtained the nursing home records which revealed the lack of care, and an expert report from a leading nursing home care physician, we attempted to settle the case. Not only did we present the video and photographs, but we also produced 3’ x 6’ exhibits showing artist renditions of the wounds.

We were able to obtain a large settlement without the need of filing a lawsuit. More importantly, we learned after this case the nursing home had been sold to a new owner who immediately put money into the facility and updated the medical and nursing care to their residents.

If you have a family member or friend who resides in a nursing home or long-term care facility, it is important that you check the condition of their skin on a regular basis. This may be difficult if the wound is in an area of the body that is hidden by clothing but must be done. You should review their condition periodically with the nurses to make sure that any bedsores are treated immediately and in the proper manner.

Stephen M. Karp, Esquire