Pennsylvania Injury Law Report

Supreme Court ERISA Subrogation Case Makes It More Difficult To Settle Personal Injury Cases

Stuart A. Carpey — Thu, 16 May 2013 15:43:49 -0500

The U.S. Airways v. McCutchen, decided April 16, 2013, case complicates the finality of any personal injury case where a lien is involved. McCutchen was injured in a car accident and his personal injury lawyer obtained a settlement on his behalf in the amount of $110,000. His employer, U.S. Airways, paid medical bills on his behalf in the amount of $66,800 through a health insurance plan under which McCutchen was a beneficiary. U.S. Airways sought full reimbursement of the $66,800. When McCutchen refused to pay the money back, U.S. Airways sued him. The case went all the way up to the United States Supreme Court. SCOTUS found in favor of the employer, U.S. Airways.

This is a horrible decision for plaintiffs. SCOTUS recognized how problematic its holding was.This is from page 16 of the opinion.

The rationale for the common-fund rule reinforces that conclusion. Third-party recoveries do not often come free: To get one, an insured must incur lawyer's fees and expenses. Without cost sharing, the insurer free rides on its beneficiary's efforts — taking the fruits while contributing nothing to the labor. Odder still, in some cases — indeed, in this case —the beneficiary is made worse off by pursuing a third party. Recall that McCutchen spent $44,000 (representing a 40% contingency fee) to get $110,000, leaving him with a real recovery of $66,000. But US Airways claimed $66,866 in medical expenses. That would put McCutchen $866 in the hole; in effect, he would pay for the privilege of serving as US Airways' collection agent. We think McCutchen would not have foreseen that result when he signed on to the plan. And we doubt if even US Airways should want it. When the next McCutchen comes along, he is not likely to relieve US Airways of the costs of recovery. See Blackburn v. Sundstrand Corp.,115 F. 3d 493, 496 (CA7 1997) (Easterbrook, J.) ("[I]f . . . injured persons could not charge legal costs against recoveries, people like [McCutchen] would in the future have every reason" to make different judgments about bringing suit, "throwing on plans the burden and expense of collection"). The prospect of generating those strange results again militates against reading a general reimbursement provision — like the one here — for more than it is worth. Only if US Airways' plan expressly addressed the costs of recovery would it alter the common-fund doctrine.

Before this decision, it was common for health insurance lien holders such as U.S. Airways to reduce their lien at least by the amount of the attorney fees and costs expended by the plaintiff's attorney in the underlying injury case. But no more. Going forward so long as the plan document states that the plan is entitled to 100 percent reimbursement employer health insurance plans will have no reason to reduce their liens. Of course, all plan administrators will make sure that their plans demand 100 percent reimbursement from personal injury matters.

Why You Need Uninsured Motorist Coverage If You Are Involved In A Hit And Run Accident

Stuart A. Carpey — Sat, 11 May 2013 08:51:25 -0500

What is a hit and run accident in Pennsylvania? If you have been unfortunate enough to have been involved in an accident like this, what can you do? Can you get compensated for your injuries and damages?

The answer is yes, if you have purchased uninsured motorist coverage.

To prove an uninsured motorist claim in a hit and run case, you have to prove that the driver that hit you was negligent, and that you sustained actual injuries. There is no requirement that there be actual physical contact between your car and the at fault driver’s car. You must however report your accident to the police with 30 days of the accident or sooner, and you must be able to prove that you made reasonable efforts to obtain the hit and run driver’s information, like his or her name, phone number, address, or tag number, if you can. Of course in some cases that is simply not possible. But, there may be witnesses at or near the scene that can help you or your personal injury attorney track down the at fault driver.

In this type of case, your own insurance company steps into the shoes of the hit and run driver. You make a claim to your own carrier, and they will hire a lawyer to defend the claim made against them.

Uninsured motorist coverage is not mandatory in Pennsylvania. It is an optional coverage. So, unfortunately, some people have no insurance uninsured motorist coverage whatsoever for hit and run accidents.

For more information on how to make sure you have the right coverage on your car, truck or motorcycle policy, take advantage of our offer to have Stuart Carpey review your policy at no cost to you.

Federal Regulators Turn To Vehicle Manufacturers To Limit Distracted Driving

Stuart A. Carpey — Fri, 03 May 2013 10:07:54 -0500

Widespread use of hands-free vehicle navigation and infotainment systems have become the new focus of regulators in an attempt to limit distracted driving. New guidelines were issued this month that are intended to make it harder for drivers to become distracted from these devices in new cars, but automakers fear it could backfire and encourage drivers to turn to their smartphones.

According to an article published on April 23, 2013, in USA Today, the guidelines were issued by the National Highway Traffic Safety Administration and are voluntary, but widespread adoption is likely. Car manufacturers will be urged to restrict any system that allows drivers to push buttons or manually input addresses while the vehicle is moving.

Some automakers, such as Honda, have already taken the initiative and implemented voice activated navigation systems that won’t allow manual input when the car is in drive. Other automakers, like BMW, encourage the use of voice activation controls but still allows drivers to make manual inputs when the car is moving.

Although government has no plans to penalize those automakers who do not meet these guidelines when they take effect in three years, liability concerns could lead companies to comply nonetheless. According to Michigan plaintiff lawyer (and former Chrysler engineer) Wolfgang Mueller:

If a driver crashed while operating a navigation system, there would be a ‘good case’ against that automaker.The first rule of safety engineering is to design out the hazard. Clearly this is reasonable, since most every other car maker has disabled their system when the vehicle is in gear.

I couldn't agree more. These guidelines will soon serve as the standard of safety for automakers across the U.S. and could mean more lawsuits brought against manufacturers who refuse to implement them in the near future

"I Have a Great Case, Don't I? " and "How Much Is My Case Worth?"

Stuart A. Carpey — Mon, 29 Apr 2013 20:57:59 -0500

These are the questions I dread to hear when a client first comes in my office. Let's tackle the second question first.

If, at the initial meeting, a client asks me what the value of their case is (that's fancy insurance adjuster speak for how much money the case can be settled for), I know I am i a heap of trouble. That problem stems from the fact that I don't have a crystal ball. Moreover I don't have any of the medical records at that point, so I have no way of knowing what the real injuries are. The client may tell me what the injuries are, but nothing replaces real paper medical records. They are the tools I use to evaluate cases.

Some of my colleagues would argue to not take on a client who wants to know what their case is worth day one. I disagree. I think clients who have been injured due to someone else's negligence find their lives and perhaps their livelihood in a state of upheaval. They want to know, and I dare say, deserve to know how much money might make them whole. I just do my best to convince them that cases take time and so does litigation.

What is value anyhow in a personal injury case? Ultimately it means the amount of money that an imaginary jury today and a real jury when and if the case goes to trial in convinced the case is worth. So, day one in the office that is an impossible task for any personal injury lawyer to tackle. Anyone who tells you otherwise is selling you a bill of goods.

Now the "I have a great case" client. Maybe yes. Maybe no. I have never met a perfect case, or a perfect client. And it is much easier to be a defense attorney than it is to be a plaintiff's attorney. Defense attorneys don't have to prove anything. They can sit back and wait, and then start shooting holes in your case. They can do that using a number of methods, from attacking your or your witnesses' credibility, to conjuring up inaccuracies in your medical records.All cases have problems. All client have histories.

The best approach for any personal injury plaintiff is to be realistic about their case, honest with their doctors and attorneys, and let the litigation of the case take its course.

Tractor Trailer Accidents: Pitfalls To Tracking Down Insurance Coverage

Stuart A. Carpey — Sat, 30 Mar 2013 12:49:40 -0500

Personal injury accidents claims arising out of tractor trailer collisions with cars and motorcycles can provide tremendous pitfalls for the accident victim because transportation carriers do not make it easy to locate adequate insurance coverage. Quite simply, they go out of their way to conceal that information from accident victims and their attorneys.

So what do we do in those situations? We find the insurance coverage. Here's how.

The truck driver's employer or employers.

The first route for coverage is the truck driver's employer(s). The transportation company, that is, the trucking company, may have significant insurance coverage for bodily injury claims and possibly excess coverage. But, this assumes that the driver is not an independent contractor. If he is, then the attorney representing the injured victim may have to locate the insurance information for the independent trucker, which is usually a separate insurance carrier than that of the trucking company.

The owner of the tractor.

If the driver is not the owner of the tractor, than the tractor owner may have their own policy of insurance. This is so even if the tractor is rented or leased to the driver. Also, if the owner was or should have been aware of some reason the driver should not have been driving (prior vehicular violations, log book violations,inadequate sleep/hours or service issues), then the tractor owner may be additionally liable for the victim's injuries under theories of negligent entrustment. This means that the company owner was negligent in not making sure the truck driver was safe, and if that can be proven, then there is actually a separate cause of action that can be brought in the case, aside from the negligence claim against the driver. It does not mean a double recovery in terms of damages in the case. But it may give rise to a punitive damage claim.

The company who owned the loads or product being hauled.

These companies may be considered the employer of the driver in some circumstances. Coverage information from these entities should also be obtained.

The broker company.

Separate broker companies are likely to be involved in any long haul trucking contract. These companies act as middlemen for the motor carrier and then entity that wants the load hauled, and they may carry their own insurance policies.Again, theories of negligent entrustment abound in this type of case.

Any entity whose name is on the tractor or trailer.

This information will identify company names. We can track down their corporate and commercial information, which will ultimately lead to insurance coverage information.

The company or individual who registered the Department of Transportation number for the tractor.

Interstate trucking carriers operate vehicles that are authorized to operate in multiple state jurisdictions, including U.S. and Mexican states and Canadian provinces. Intrastate trucking carriers operate entirely within a single state.Both require DOT numbers which can lead additional insurance.

What Exactly Is Defensive Medicine?

Stuart A. Carpey — Tue, 19 Mar 2013 13:07:26 -0500

Many doctors perform costly tests and procedures that have little to no scientific or medical merit. By practicing such defensive medicine, doctors operate outside of the standard of care. This is typically under the guise of insulating themselves form medical malpractice claims. (At least one commentator call this "insurance fraud").

Health insurance companies are under a contractual obligation to pay only for claims that are reasonable and necessary to treat an illness. Each time an insurer is billed for a test or procedure that a doctor believes is superfluous, that insurer is induced to compensate the doctor to its own financial detriment.

Supporters of defensive medicine point to the increased demands of patients as a valid impetus for such a practice. According to Adam I. Harris, M.D. as well as other commentators in The Wall Street Journal Editorial page on February 15, 2013, the proliferation of defensive medicine will continue until patients bear the financial responsibility of unnecessary medical treatment. This logic, however, is deeply flawed. Insurance companies do not simply absorb the increased costs that come part and parcel with defensive medicine. Instead, they offset these expenses through higher insurance premiums.

As the cost of medical insurance continues to surge, it is clear that the practice of defensive medicine must be reigned in. Rather than passing the cost onto insureds, perhaps it is time for health insurance carriers to take a harder line on defensive medicine.

Lehigh University Student Sues Over C Grade.. Are We An Overlitigious Society?

Stuart A. Carpey — Sat, 02 Mar 2013 10:17:07 -0500

Graduate student Megan Thode thought she deserved a better grade than a C-plus she received for one class, and as a result her desired degree and becoming a licensed therapist is now out of reach, according to her. She has sued the Lehigh University and the professor who gave her the grade for 1.3 million. This is from a recent article on the case.

Thode took the class in the fall of 2009. Her instructor, Amanda Eckhardt, testified this week that she stood by the grade, saying Thode failed to behave professionally and thus earned zero out of 25 points in class participation, bumping her down a full letter grade.The C-plus prevented Thode, an otherwise A student, from going on to the next class and advancing in her professional therapist studies, the newspaper reported. She wound up getting a master's degree in human development instead. Her attorney, Richard Orloski, argued that Eckhardt targeted Thode because she is an outspoken advocate for gay marriage.Eckhardt testified that while she believes marriage is between a man and a woman, she would never allow her personal views to influence her treatment of students. She said Thode had outbursts in class, did not participate appropriately, was emotionally unstable and failed to heed a warning letter.Stephen Thode, the plaintiff's father and a longtime finance professor at Lehigh, testified on his daughter's behalf and said her participation score was highly irregular."I have never heard of a case, not just at Lehigh, where a student achieved a zero in class participation where they attended and participated in every class," he said.

Ms. Thode has gotten some very bad press of late. Does she deserve it? Hers's my take on it.

I don't take issue with the theory of liability. She very well may have been discriminated against by her professor. Without having read the motion to dismiss or the motion for summary judgment, whichever one was filed by Lehigh University, there was nevertheless some theory in law to proceed. At least that's the conclusion the judge hearing the case non jury has concluded.

My problem with the plaintiff's case is the damages issue. Ms. Thorpe is claiming she has a calculable lost earning capacity claim over her working lifetime of 1.3 million. Her method of calculating that is not unusual. We do that all the time in our client's cases when proving loss of earning potential. For instance,when a person dies due to someone else's negligence, and th decedenty eared $50,000 per year, their lost earnings are $50,000 per year multiplied by their expected working lifetime. That is part of the damages the family can seek in a wrongful death case.

But here Ms. Thorpe has failed to mitigate her damages. Moreover, she is assuming she cannot earn an equivalent or greater salary in an occupation other than counselor. That's the flaw inherent in her case, her mentality, and her point of view. She is selling herself short. She has an entitlement mentality. And the worst part is her father is enabling her. I would be telling my kid to stop making excuses, and go out and make her own way with the tools and education she has.Instead, he testified on her behalf!

It just goes to show that being highly educated, like Ms.Thode, does not necessarily mean one has the drive to be successful in one's chosen field or the wherewithal to use one's skills to branch out into another field. My opinion is that her case should never have been brought.

The High Cost Of A College Education

Stuart A. Carpey — Mon, 25 Feb 2013 12:47:45 -0500

Although this blog is about personal injury matters, sometimes I can't help myself, and I go outside the strict parameters of the blog. I suppose that's the privilege one has as a "blogger". (No great feat, by the way, as anyone can start a blog.)

This piece is, therefore, slightly off the reservation, but what the heck.

One of the most aggravating issues many families are currently facing is the cost of college education. It aggravates me.

I have three kids. As I write this, my son is a college graduate, my middle daughter is a junior at The University of Pittsburgh, and my youngest daughter is a freshman in high school, who will follow in her siblings’ footsteps’ in a few short years. I am intimately aware of the costs of paying for a college education.

I am, nevertheless, quite convinced that most parents and their children approaching college age and in college have a general lack of understanding of what it takes to actually pay for school. There is essentially no support by the federal and state governments in financing those costs. As a parent, you have two choices: pay out of pocket for your child’s college tuition yourself, or let your child pay for it himself/herself. Unfortunately, they are the only choices most families have. What's more unfortunate is that these choices are often financially unrealistic. Ultimately, many intelligent, hard-working kids may not be able to go to college.

When you take your child to visit schools (typically in their junior year of high school) you tour the schools that are of interest to you and/or your child, usually being led throughout campus in a group of other young, hopeful college students and their parents, often by a cheery and dedicated undergrad. You will invariably be shown the dorm rooms, the athletic fields, gym, classrooms, etc. Cost is not discussed in any great detail, but the information is nevertheless provided by the school in some form and available so that you can throw up on the car ride home. Those costs include tuition, room and board, food, books, transportation and additional spending money for your kid. They will need money for pizza when they finally break for dinner at 11 o’clock at night, between studying for exams. How you and your child are to obtain the resources to fund even the first semester of college is never fully explained.

I was one of those crazy people that set up college funds for each of my kids when they were born, and I funded those accounts. Regularly. That paid off big time. But I still got an education in how to finance a college education when I sought out additional sources of funding, particularly when my first child, my son, was applying to college. Parent Plus loans, Stafford subsidized loans, Stafford unsubsidized loans, HELOCs - this stuff is not for the faint of heart. FAFSA is a ridiculous and confusing exercise of futility, and in my opinion only useful as a tool for the schools to determine what the parent or student can be stiffed for.The FAFSA may be beneficial for some parents or students. For me it was a waste of time.

The amount of money in available loans at relatively low rates is pitiful. Parent plus loans are a rip off at 7.9 percent. HELOC’s are scary, but at today’s low interest rates, they are in my opinion the best deal if you have to borrow. Care in these areas is required. Informing yourself is required. The banks, federal government and Commonwealth of Pennsylvania do not give a hoot about how much you or your child borrows (if they even permit you to borrow), but they do want their money back-- and with interest.

But I am no college financial adviser. I am just a personal injury attorney with an opinion on something that hits home with me.

The cost of college education continues to far exceed the inflation rate. Why? Somebody has to pay for those really nice gyms you saw on the school tour; someone has to pay for the high speed internet access and high tech computer equipment. Don’t get me wrong, I want my kids to have that experience, all of it, and everything that goes along with it. My problem is the rate of the cost of sending your kid to college has to somehow be brought down to earth. It is simply not correlated in any way to the rate of inflation of other goods and services.

Here are the long term problems of our current system of paying for college as I see it. It is a bubble and it will burst. We are living in difficult times, and leaving college with$30,000 in debt is an untenable position for any student, parent or our system of education. The average debt per student is, in fact, much higher for local colleges and universities.

Now for some Q&A....
Q: How can students with that kind of debt upon graduation expect to get a jump on their career of choice?

A: They have to take whatever job they can get. Smart, college grads with tons of debt, working at the local T-Mobile store.. not even as a manager.

What does this say about our ability as a country to create jobs for our young people? How can parents who take on debt for their kids ever see the light of day? Will they be forced to stay in the labor market longer than they and wished to, thus closing the door on a younger job applicant?

Lately the press has started to cover the issue, which is a good thing, but it’s not nearly enough. In my opinion, the federal government and the state governments need to have a good hard talk with college administrators and presidents.

This is from a Wall Street Journal article of December 15, 2012, entitled,
Who Can Still Afford State U?

A number of factors have helped to fuel the soaring cost of public colleges. Administrative costs have soared nationwide, and many administrators have secured big pay increases—including some at CU, in 2011. Teaching loads have declined for tenured faculty at many schools, adding to costs. Between 2001 and 2011, the Department of Education says, the number of managers at U.S. colleges and universities grew 50% faster than the number of instructors. What's more, schools have spent liberally on fancier dorms, dining halls and gyms to compete for students.....For generations of Americans, public colleges and universities offered an affordable option for earning a college degree. Now, cash-strapped states across the country are cutting funding for colleges and directing scarce resources to primary and secondary schooling, Medicaid and prisons. That is shifting more of the cost of higher education to students and their families.

Writer, Susan Gregory Thomas, recently posted this in Philadelphia Magazine (January 2013), and it is hard to disagree with this point:

Does the very abundance of student loans encourage colleges to raise tuition? To compete with other schools, do colleges need to have the newest facilities, best technologies and labs, the biggest libraries, the best presidents, scientists/ engineers, professors and coaches?

Are there other choices? Well the European model is a bit different than ours.

This is from an article entitled The Costs Of Higher Ed, from The Philadelphia Inquirer, Tobias Peter, December 9, 2012:

College students in Germany won't be going into debt too deeply for their education any time soon. Consider the mass protests that erupted on campuses when several German state governments called for the end of free tuition. [The protestors claimed that] education is a human right, it should be free to everybody.The protests were largely successful, with only two out of 16 German states still charging tuition - roughly $650 a semester.

Germany is not unique on the costs of college. Finland and Denmark offer free tuition, and other countries charge only about $1,000 a year. In contrast, tuition in the United States can cost tens of thousands of dollars - and costs have been rising in recent years. Of course, education isn't free. Someone is paying those bills in Europe. But the approach of European countries and of the United States couldn't be more different. In continental Europe, it is much more accepted to regard government as a supplier of public goods - and to pay for this service.

An opposing view on free tuition, one that is common in the United States, can be summed up by Mary Ellen Jones, a small-business owner and tea-party member from Delaware County, who was quoted in the same article.

That's just European socialism. I worked hard all day so that I could pay for the college I attended in the evening, and everybody who really wants to have an education can just do the same...Why should I pay with my taxes for other parents' children to go to college? That's crazy.

I asked my intern, Tiffany Leitz, currently a junior at Temple University, what she had to say on this subject. I thought it would be interesting to hear the opinion of someone who is directly involved with and affected by the U.S. education system. Here's what she said.

This view (Jones) is understandable-- to an extent. It is true that the U.S. is not a socialist country, however, when it comes to something as important as solidifying a purposeful and successful future for this country by ensuring higher education opportunities for our youth, maybe talk of change is necessary. As a country that aims to continually move in a better direction, we should be open to this discussion, as the necessity for change in education has become a glaring issue and it’s clear that this subject will have a prominent impact on the shaping of the United State’s future. What’s even more clear is the fact that more and more families are unable to afford the rising costs of college tuition. This means less college educated members of society in the next generation of the workforce. The U.S. as a whole should be investing in the future generations that will lead our country, not stifling them and any hope of a flourishing economy. Maybe Ms. Jones would feel differently on this subject if she had the opportunity to attend college at a more affordable and reasonable rate.

Now, getting back to the article..

'A country's economy benefits from as many people as possible having a good education. That's why some governments consider it worth paying for everybody's college education. It's not all about tuition or public money. A university like Harvard can rely on the assets of a huge foundation, and this is a concept that other countries should pick up and follow, too.' Hans-Dieter Daniel, a professor at the University of Zurich, who believes foundations allow universities to operate more independently, making it easier for them to organize and sustain world-class research.

When it comes to alternative means of financing, European schools can learn from their U.S. counterparts. The reliance on public funding might be one reason there isn't a German Harvard. In a World University Ranking, Germany's top school, Technical University Munich, places 53. The United States offers a wide range of schools, from community colleges up to the Ivy League. In Germany, public universities vary in size and areas of expertise, but they are similar in terms of quality. There are a few private institutions that charge a modest tuition, but they are not considered better than public schools and, as a result, find it hard to attract students.'We want to offer the same high standard to everybody who is attending our universities. 'Rossman. [Protestors like] Katharina Mart insist that offering should be free. She is already preparing new protests against the last two governments in Germany that are charging tuition, organized around next year's elections. Other state governments have already lost elections when tuition was on the agenda.

The American system, which is supposed to promote freedom and opportunity, leaves students with thousands of dollars in debt. Mart questions:'That's not a way to start a life. How are they supposed to build a house, to support a family?'

Is the U.S. Congress going to help anyone anytime soon? Doubtful. Wall Street Journal, Push To Gauge Bang For Buck From College Gains Steam, Ruth Simon, February 12, 2013:

U.S. and state officials are intensifying efforts to hold colleges accountable for what happens after graduation, a sign of frustration with sky-high tuition costs and student-loan debt.Sens. Ron Wyden (D., Ore.) and Marco Rubio (R., Fla.) are expected to reintroduce this week legislation that would require states to make more accessible the average salaries of colleges' graduates. The figures could help prospective students compare salaries by college and major to assess the best return on their investment.

Nice gesture, but more needs to be done.

Lance Armstrong Continues To Pay (Part II)- The Confession

Stuart A. Carpey — Fri, 08 Feb 2013 11:17:06 -0500

In a recent interview with talk-show host Oprah Winfrey, Lance Armstrong came clean for the first time publicly and admitted to using banned drugs or blood transfusions in all seven of his victories in the Tour de France from 1999 to 2005. After a decade of fighting and denying a doping scandal that threatened to expose him to the world, the hoax was finally up in this two part, 60-minute interview.

The effects of his admission began to show immediately after the show aired on Thursday, January 17th. Many people became outraged at the former Tour De France champion for his cheating and deception. After watching Armstrong’s live confession, two readers of his book, "It's not about the Bike”, claimed the book was a fraud based on lies and false advertisement. A class-action lawsuit was filed 5 days later, on January 22, 2013.

The suit was filed in U.S. District in California by Rob Stutzman, a public affairs consultant in California, and Jonathan Wheeler, a professional chef. Both read the book only to learn (through Armstrong’s confession) that the supposedly non-fiction book contained falsehoods about how Armstrong boosted his performance as cyclist.

The suit cites Armstrong's confession to Oprah Winfrey about how he persistently cheated during his cycling career and lied about it for more than decade. The suit seeks to represent California residents who bought that book and another Armstrong book "Every Second Counts." The suit states:

Defendants knew or should have known these books were works of fiction,

It says that the plaintiff’s would not have bought the books had they known the “true facts concerning Armstrong’s misconduct”.

SCA Promotions, the company that insured Armstrong’s performance bonuses on behalf of Armstrong’s team, Tailwind Sports, also filed a lawsuit against the former Tour De France champion on Thursday, February 7th. In 2004, SCA withheld payment due to suspicions that he cheated to win them. In response, Armstrong and Tailwind sued SCA for payment, leading to litigation in which Armstrong denied under oath that he took performance-enhancing drugs. SCA settled the case with Armstrong but is now seeking a full refund after watching Armstrong admit to Oprah Winfrey on national television that he did indeed cheat every time he won the Tour. Jeff Tillotson, the attorney for SCA, said the company is owed about $12.5 million including legal costs for Tour bonuses in 2002, 2003 and 2004.

Lance Armstrong’s attorney, Tim Herman, says that Armstrong has no plans to pay SCA back, on the grounds that,

No athlete ever, to my understanding, has ever gone back and paid back his compensation, Not (New Orleans Saints coach) Sean Payton or anybody else. They were suspended, but nobody said you've got to give your paycheck back.

Herman goes on to make the legal argument that this is a contractual matter between Armstrong and his cycling team's owner, Tailwind Sports. Herman had previously noted that the terms of the settlement say the case cannot be reopened. He also said Tailwind was obligated to pay Armstrong the bonuses whether SCA covered the cost or not. According to Herman,

The bottom line is that Tailwind bought the (insurance) policy (from SCA). Tailwind paid the premium. Tailwind made the claim, and the money (from SCA) was paid to Tailwind, not Lance Armstrong. I'm sure people will characterize that as a loophole, but it's a pretty significant factor.

Armstrong’s team believes that when SCA signed the agreement, it forfeited its right to reopen that particular matter. The SCA lawsuit, however, says that Armstrong and his attorneys told the arbitration panel that the cyclist would be required to return bonus money if he were to be stripped of his Tour de France victories. The United States Anti-Doping Agency, of course, yanked Armstrong’s seven Tour titles in October when it released a report that detailed his doping scheme.

Lance Armstrong and SCA Settlement Agreement

For more on Lance Armstrong and his doping scandal, check out the related articles on our website!

A Renewed Focus On Patient Safety

Stuart A. Carpey — Wed, 23 Jan 2013 15:41:05 -0500

After a generation of fighting the campaign of distortion sprouting from the tort reform movement, patient safety and quality of care have been shed a new light. New protections have been put in place to identify and penalize those health care providers that don’t do enough to limit mistakes.

In December 2012, The Wall Street Journal and The Atlantic published a study that revealed at least 4,000 “never events” (wrong site surgery, implements left behind, etc.) occur annually in American hospitals. Again..

...at least 4,000 ‘never events’ occur annually in American hospitals.

Just days after this new study was released, The Philadelphia Inquirer reported about a new Medicare program to reward or punish hospitals based on how consistently they fulfilled a dozen standards of care and how patients rated the care they received. The findings were startling:

18 area hospitals will be penalized, 22 will be rewarded, and two held harmless..

Perhaps the most bewildering story so far was the hour long CNN “25 Most Shocking Medical Mistakes” that ran over the weekend, featuring stories told of the impact medical mistakes have on people. Medical errors kill more than a quarter million people every year in the United States and injure millions. Add them all up and "you have probably the third leading cause of death" in the country, says Dr. Peter Pronovost, an anesthesiologist and critical care physician at Johns Hopkins Hospital.

Over 250,000 deaths every year, and most stories go untold. With so much of the media’s attention going to “frivolous lawsuits” and the cost of healthcare going up due to fraudulent claims against doctors, patient safety has taken a backseat for too long. Hopefully this new push to enlighten others on what’s going on behind the scenes and never being told will strengthen the fight to ensure safety in hospitals and clinics throughout the country.

How Much Will Pennsylvania Taxpayers Be Paying The Law Firm Of Cozen O'Connor For the Suit Filed Against The NCAA Over The Penn State Sanctions?

Stuart A. Carpey — Sun, 06 Jan 2013 09:40:45 -0500

This is from an article in the Philadelphia Inquirer as reported by staff writers Jeremy Roebuck and Amy Worden on January 4, 2013.

Gov. Corbett said Thursday that his thinking evolved over time regarding a series of NCAA-imposed sanctions against Pennsylvania State University and that he decided in late October that he would sue the organization. His remarks... came a day after his office filed an unprecedented federal antitrust lawsuit seeking to overturn those punishments by college sports' governing body and months after he urged Penn State to "accept the serious penalties" without argument.

But while Corbett worked to explain this apparent contradiction, critics continued to question the timing of his legal challenge, its potential political implications, and even the law firm hired to wage the battle in court. "I did not have all the facts in front of me," Corbett said in a Thursday morning interview with KDKA radio in Pittsburgh. "I did not know the NCAA was not following their own rules."

Bruce L. Castor Jr., a Montgomery County Republican and potential 2014 primary challenger to Corbett, was critical of the turnaround. The lawsuit "smacks of political gamesmanship and too little, too late," he said in a statement Thursday. The governor's "sudden reversal, and the decision to spend substantial taxpayer money on a federal lawsuit, now raises more questions than it answers."Since launching the Sandusky investigation as attorney general, Corbett has become a frequent punching bag for disaffected Penn State fans unhappy with his early handling of the case, his role as a member of the University's board of trustees, and his initial reaction to the NCAA penalties.

"No matter what his motives are with the lawsuit, the practical aspect is, it has political ramifications for the governor," said Chris Borick, a political scientist at Muhlenberg College. "It's clear the Sandusky issue has become more of a liability than an asset for him. It looks like he's trying to change that." Castor and other critics Thursday questioned whether the governor was also bending rules to his advantage by excluding incoming Democratic Attorney General Kathleen Kane from the lawsuit's process.

Kane, who is to take office Jan. 15, channeled outrage among Penn State fans as part of her election bid this fall, running largely on a promise to investigate Corbett's handling of the Sandusky case.Corbett's general counsel, Jim Schultz, said Wednesday that Kane was not consulted before the lawsuit was filed or before current Attorney General Linda Kelly decided in December to hand over the case to the governor's office.

Kelly, a Corbett appointee, told the Associated Press on Thursday that she thought the ongoing criminal cases involving Penn State administrators could pose a conflict of interest and demand too much staff time to effectively pursue a suit against the NCAA. State law grants the attorney general authority to delegate power to pursue and defend lawsuits involving state agencies as well as to hire outside counsel to handle a case.

Schultz, the governor's top lawyer, said Wednesday that his own former law firm, Cozen O'Connor, will handle the case for Corbett's office.

My two comments about this story are that Attorney General Kelly has appeared to have gotten rid of the potential problem of having her staff handle the case by referring the case out to Cozen O'Connor. That's seems to be a good thing. But my take on this is that it has not been revealed to the Pennsylvania taxpayers what the fee arrangement is between the Commonwealth and Cozen O'Connor. To my knowledge that firm does not handle cases on a contingency fee basis. Therefore the taxpayers will be paying the firm on an hourly basis, a potentially very expensive proposition in what I see as a very difficult case at best. (See Max Kennerly's thorough analysis on just how difficult the case is).

If Cozen O'Connor can get money redirected back to Pennsylvania from the NCAA sanctions, great. But if the case were handled on a contingency fee basis, Cozen O'Connor would be assuming all of the risk of loss. That's a much better deal for Pennsylvanians. I would hope the fee arrangement would be something that is ultimately revealed to the public.

They Operated On The WRONG Eye

Stuart A. Carpey — Fri, 04 Jan 2013 10:39:28 -0500

It is reasonable to think that when a person goes into surgery for a non-life threatening issue, that they are in the hands of experienced, well-trained professionals and all will go smoothly. Sure, there are complications that can sometimes arise that nobody foresaw, but how many of us would consider human error by operating on the WRONG part of the body as simply a “complication”?

No one.

The difference between complications and human error is that one of them is entirely preventable, yet, according to the Pennsylvania Patient Safety Authority, an average of 63 wrong person or site surgeries in Pennsylvania still occur every year.

According to an article written on November 12, 2012 in The Philadelphia Inquirer, Stamping Out Misdirected Surgery, Anna Mazur, a 92-year-old woman suffering from a blocked vein and mounting pressure from glaucoma in her left eye, checked into the University of Pennsylvania Scheie Eye Institute for surgery in March 2011. Instead of performing surgery on the left eye in an attempt to improve vision, surgeons operated on the relatively “good” eye. Tom Avril, the author of the article, writes,

There were complications, and, according to a specialist retained by her attorney, she became legally blind as a result.

Anna Mazur switched to another eye institute the next month to have surgery on the left eye (the one that was supposed to be operated on in the first place), which ultimately left her with no improvement in vision. The ability to read, watch videos of her great-grandchildren, prepare her own meals, and take care of herself was completely stripped from her following the surgeon’s mistake. She says,

I was in good health and did everything myself. Now I just have to sit and wait and see what happens to me.

Although improvement programs have helped to lower the average number of medical errors in the 2011-12 academic year from 63 to 47, one mistake per 100,000 procedures isn’t good enough.

It won’t be good enough for the 47 victims of medical error this upcoming year, either.

Diagnosing Yourself After An Accident Is Not A Good Idea

Stuart A. Carpey — Wed, 12 Dec 2012 10:00:00 -0500

There was a recent ad for heartburn that started off with, “You wouldn’t want your doctor doing your job, so why are you doing his?” The ad goes on to show a guy in a long white coat handling a jack hammer, clumsy and inept, of course. Then cuts to this big, burly construction worker at the over-the-counter isle in the local drugstore, looking confused, attempting to choose an antacid for his heartburn. Although heartburn is hardly as serious as possible injuries sustained in auto accidents, the message remains pertinent and clear: let the doctor do his job.

So, how does this tie into the typical personal injury case? Well, the last thing an accident victim should do is self diagnose. This can ultimately become a very bad decision because any injuries you may have sustained might not initially be obvious. The best approach is, rather, to always take the precaution of seeing your medical provider so that you can be properly evaluated.

As reported by Steven Gursten of Michigan Auto Law on June 12th, 2012, there are lessons we can all learn when it comes to accidents and masked injuries. One recent example involved Commerce Secretary John Bryson and an auto accident he had Los Angeles.

As reported by The Detroit Free Press:

Commerce Secretary John Bryson is taking a medical leave of absence to undergo tests after suffering a seizure connected to two traffic accidents in the Los Angeles area over the weekend.
***
Authorities said Bryson was driving alone in a Lexus in San Gabriel, a community of about 40,000 northeast of Los Angeles, when he struck the rear of a vehicle that had stopped for a passing train, authorities said. He spoke briefly with the three occupants and then hit their car again as he departed, investigators said. They followed him while calling police.

Bryson was cited for felony hit-and-run, although he has not been charged. The secretary then struck a second car in the nearby city of Rosemead, where he was found unconscious in his car, authorities said.

Commerce Secretary Bryson sustained a traumatic brain injury in the car accident and didn’t even know it. He fled the scene, believing he was not injured and able to drive. He learned the hard way after hitting a second vehicle and being found unconscious.

Sometimes accident victims make the mistake of waiting too long for medical attention and realize their injuries later on. This can not only risk their well-being, but can also risk their chances of proving their damages and getting their medical bills properly paid for resulting in a headache on top of the one you already may have.

If you've been in an accident, don’t wait a couple of days or weeks for symptoms to develop before you see your doctor if you have any inkling that you have in fact been injured. You could be putting yourself, and your case, at risk.

NFL Punter Brett Hartmann Sues Texas Stadium Over Fall Down Accident

Stuart A. Carpey — Mon, 10 Dec 2012 15:24:05 -0500

On November 15, 2012, Brett Hartmann, a former punter for the Houston Texans, filed a lawsuit in Harris County District Court, located in Texas. In the lawsuit, Hartmann names SMG and the Harris County Convention and Sports Corporation as defendants, and cites Astroturf used in Reliant Stadium as the cause of serious injuries to his left leg.

Hartmann, who began playing for the Texans in the summer of 2011, played for only 12 games, having injured himself in December 2011. During play in December, Hartmann's foot became lodged in a seam separating one piece of AstroTurf from the next. This caused the punter to tear his left anterior cruciate ligament (ACL) and fracture his proximal fibula. In the lawsuit, Hartmann is claiming that poor turf maintenance directly caused his injuries.

This could very well be a career ending injury, especially for a punter. At the very least, Hartmann will require more surgeries in addition to the two surgeries he has already had. He was cut from the Texans in August 2012.

Hartmann's accident is really no different than a typical fall down accident that we handle every day. Hartmann was injured on someone’s property (the stadium owner’s property) because of a defect on the property (the Astroturf was faulty) which should have been designed and maintained with the safety of players in mind. This was a foreseeable event, and as a result of the defendant property owner and/or the owner’s employee’s negligence in not maintaining the Astroturf properly, Hartman was injured and sustained damages. Those damages include his physical injuries, pain and suffering, as well as lost wages and future lost income.Furthermore, it would seem that Hartmann also has a workman's comp claim since he was injured while working.

To read more about football accidents, please follow this link.

Headaches After an Auto Accident Could Be More Serious Than You Think

Stuart A. Carpey — Wed, 05 Dec 2012 16:45:08 -0500

According to the National Institute of Health (NIH), headaches after an auto accident could be a symptom of a much more serious problem than you think.

Many people suffer from headaches after they have been involved in an accident, even if they were wearing a seat belt. Some report them to their medical provider right away, and others allow them to go unreported and untreated all together. Post accident headaches could be a sign of serious underlying injuries, such as a concussion or serious head trauma.

A study from the Journal of the Canadian Chiropractic Association(J Can Chiropr Assoc. 2007 June; 51(2): 83–90) shows just how critical these symptoms could be. In one particular case which was part of the overall study, a woman who was involved in an auto accident went to see her chiropractor six days later. At that time, she was complaining of lower back pain, neck pain, and headaches. She had no loss of consciousness after the accident and didn’t experience any pain until days after.

She was diagnosed with post-motor vehicle accident strain/sprain to her neck and low back, with cervicogenic headache.

A month later, her symptoms worsened. She began to have numbness in her right arm as well as weakness in her right leg. She was having trouble with her balance, and at the request of her chiropractor, went directly to the emergency room.

After a CT scan, she was told she had a subdural hematoma, which is a head injury that causes a collection of blood to gather on the surface of the brain. She immediately underwent surgical decompression.

Subdural hematomas are dangerous, and can be life-threatening. Thinking that a headache after an accident is “no big deal” is the wrong idea.

If you are experiencing headaches after a trauma like an auto accident (even if you don’t have any immediate symptoms), you should see your medical provider right away. Headache symptoms following a trauma could be a sign of something.

Don’t take that risk. A headache is serious business.

One Rule For Us.. Another Rule For Them?

Stuart A. Carpey — Sat, 01 Dec 2012 10:00:00 -0500

The American Association for Justice (AAJ) published an article in October of 2011 entitled Do As I Say, Not As I Sue. This white paper exposes the double standards of major American corporations when it comes to litigation. The Institute for Legal Reform (ILR) is an arm of the U.S. Chamber of Commerce that has but one sole purpose- to limit the ability of individuals to sue corporations that caused harm to them out of negligence. The multinational corporations that finance ILR and believe that businesses are hindered by too many lawsuits, ironically, readily access the civil justice system and sue others as they see fit.

The #1 ILR hypocrite is: Honeywell International (Board member since 2007).

It is possible that Honeywell International decided to join the ILR board in 2007 after being exposed in a 2003 scandal for selling thousands of one of the dangerously defective products of all time: the Zylon Bulletproof Vest. Manufacturers of the product have known since at least 1998 that the vest was defective when they realized that the material quickly degraded in heat and humidity, allowing for a bullet to pass through. Instead of correcting the problem and notifying and informing the users of these vests that they were, in fact, not really bulletproof, corporations like Honeywell International continued to have the vests manufactured and sold.

It was in 2003 when Tony Zeppetella, a police officer in Oceanside, California , was shot and killed in the line of duty after his bulletproof vest proved to be anything but. His wife, Jamie, sued the company who sold her husband the vest, which sparked a class action lawsuit brought by police departments. Production of the vests stopped and the company was forced to recall over 100,000 defective vests. In fact thousands of law enforcement and military personnel had been put in danger put in danger, as had former President George W. Bush and Mrs. Bush, who also wore the vests prior to the recall.

Ten companies involved in the manufacturing and selling of this product were sued by the U.S. Department of Justice and settled the lawsuit. Honeywell International, however, took a seat on the ILR’s board and filed a complaint against the U.S. Department of Justice instead, alleging misconduct in the handling of the case.

Lawsuits brought by trial lawyers is what forced the vests off the market, potentially saving thousands of lives.

(A word of advice to any corporation on the ILR board: if you sue and and don’t think you should be sued after endangering the lives of thousands of American police officers, expect to win the top spot on AAJ’s hypocrite list!)

The U.S. Chamber of Commerce and the ILR have been trying for years to get countless pieces of legislation passed so that corporations would be granted immunity when they manufacture and sell defective products, and their efforts remain strong today. As stated in the AAJ white paper;

The corporations of ILR believe in one rule for them, and another rule for the rest of us. They work to close the courthouse door to individuals, but use those same courts liberally for their own agenda. At the heart of this double standard is their corporate creed that profits before people.

These corporations need to realize that the right to seek justice through the litigation and jury trial process belongs not just to big corporations, but to all Americans.

The Right Time (And The Wrong Time) To Have Surgery

Stuart A. Carpey — Fri, 30 Nov 2012 11:09:47 -0500

On Tuesday, November 27, 2012, Dr. Youn wrote an article in CNN.com discussing the statistical worst time for a patient to undergo surgery, and what can go wrong if you have it at the “wrong” time. Dr. Youn is an assistant professor of surgery at the Oakland University/William Beaumont School of Medicine in Michigan and is the author of "In Stitches". According to Dr. Youn, the time of day you have surgery can affect your outcome, and it’s surgery team fatigue that leaves patients most at risk.

A study in 2006 at Duke University showed that operations taking place between 3 and 4 p.m. had a higher rate of nausea, vomiting and postoperative pain.

Why is this? According to Dr. Youn, there are two major factors:

Factor #1:

Our bodies follow natural circadian rhythms, which regulate our sleep/wake cycle, brain wave activity and certain bodily functions. These circadian rhythms dip between 3 and 5 p.m. each day, causing many of us to feel sleepy. The Spaniards apparently discovered this long ago when they instituted the afternoon siesta.

Surgeons, anesthesiologists, and nurses can’t nap in the operating room! This means sleepy healthcare providers and a higher rate of adverse events post-surgery.

Factor #2: (And arguably the more important factor). Most members of the surgical team start their work day around 6:30 or 7 a.m. This means that the end of their 8 hour work day falls right in the middle of the afternoon, around 3 p.m.

What happens next may surprise you.

As soon as their shift ends, a new team comes in and takes over, sometimes right in the middle of an operation. This means that the surgeons and nurses who comforted you and told you they would take good care of you will not be the faces you see when you wake up. Instead, you’ll open your eyes and see a team of faces you’ve never seen before.

Many times, team members who are being replaced do a poor job of providing information about the patient to the oncoming team. This could mean that the replacement anesthesiologist might not be aware that you don’t respond well to a certain nausea medication.

The moral of the story? Mid-afternoon surgeries put the patient at risk (although not usually life threatening) of incurring problems after the operation. We are all human, no one can work endless hours, and we are all susceptible to an occasional mistake. But when you put your well-being in the hands of a professional caregiver, there is a certain level of expectation that goes along with that. It is their job to ensure that the surgery and recovery goes smoothly, and surgeon team fatigue is an unacceptable excuse for it going any other way.

Should you ever need surgery, make sure you choose the 7 a.m. one, and not the 3 p.m.

Lance Armstrong Continues To Pay, May Face Perjury And Insurance Fraud Charges

Stuart A. Carpey — Thu, 15 Nov 2012 10:00:00 -0500

After being stripped of his seven Tour De France titles, resigning his chairmanship of the cancer charity he founded, being dumped by sponsors left and right, losing his credibility and reputation that came along with his success, what more could go wrong for Lance Armstrong? The answer to that question is that Armstrong may face charges of perjury, and possibly insurance fraud.

The USADA (United States Doping Agency) has made several accusations against Armstrong, including a statement released that Armstrong was the “ringleader of the biggest doping conspiracy in sporting history". In addition, SCA Promotions Inc., the Dallas-based company that agreed to pay Armstrong and his company Tailwind Sports a promotional bonus of $12,000,000 for winning his sixth Tour De France, is seeking repayment of those monies after allegations of Armstrong’s doping scandal began to come to light. Armstrong sued SCA in an effort to collect money he believed was owed to him.

SCA's position is Armstrong knew that the performance-enhancing drug related pretenses under which he won deemed him ineligible to receive any money.

In his video deposition, Armstrong was made aware that penalties of perjury attached to his deposition just like they would in any deposition or court hearing where a witness testifies.In the lawsuit filed by Armstrong, SCA settled with Armstrong for $5 million along with $2.5 million in interest and legal fees.

With new evidence uncovered by the USADA, SCA may now seek to recoup the $7.5 million as well as any other payments made to the cyclist since he technically never won the seven Tour De France titles.

Charges of perjury now hang over Armstrong’s head after testifying under oath that he did not dope. It is up in the air as to whether or not federal prosecutors will re-open the criminal investigation into Armstrong’s doping after it was dropped back in February.

Armstrong had a contract with SCA that was backed by an insurance company who ultimately assumed the risk of insuring him. In their eyes, Lance Armstrong cheated. They believe he took performance-enhancing drugs, lied to them about it, unlawfully collected money he was not entitled to, and thus, committed insurance fraud.

The lesson in all of this is quite simple: never lie to an insurance company. It certainly appears that Armstrong was not being truthful in his deposition. Insurance companies take that sort of thing very seriously.

Privacy, Facebook, Litigation and General Petraeus

Stuart A. Carpey — Wed, 14 Nov 2012 11:08:12 -0500

In today's Philadelphia Inquirer Scott Shane writes:

The FBI investigation that toppled the CIA director and now threatens to tarnish the reputation of the top U.S. commander in Afghanistan underscores a danger that civil libertarians have long warned about: that in policing the Web for crime, espionage, and sabotage, government investigators will unavoidably invade the private lives of Americans. On the Internet, and especially in e-mail, text messages, social network postings, and online photos, the work lives and personal lives of Americans are inextricably mixed. Private, sensitive messages are stored for years on computer servers, available to be discovered by investigators who may be looking into unrelated matters.

How does this story pertain to personal injury into litigation? Question number 17 from the defense attorney's mouth is invariably "do you have a Facebook account?" Personal injury victims have to be aware that what they put on the Web stays there forever, and is searchable and retrievable by insurance companies and their attorneys.

I have written many times on the issue of Facebook and how that effects litigation. This is not to say that just because you have a personal injury case you should not send emails or use social networks. But even seemingly innocuous comments or posts can be twisted in a negative light by an opposing insurance company. That is their job- to reduce the amount of money paid to you as compensation for your injuries, even if that means discrediting you.

As Anthony D. Romero, executive director of the American Civil Liberties Union has been quoted as saying in a recent interview with the New York Times.

“It’s a particular problem with cyberinvestigations — they rapidly become open-ended, because there’s such a huge quantity of information available and it’s so easily searchable. ..If the C.I.A. director can get caught, it’s pretty much open season on everyone else.”

Medical Malpractice Does Happen, and Families Need Recourse to Bring Claims

Stuart A. Carpey — Tue, 06 Nov 2012 13:58:14 -0500

On March 22, 2012, in Florissant, MO, Dr. Gilbert Webb decapitated the child of Arteisha Betts and Travis Ammonette during the infant's delivery.

A month before, Betts and Ammonette had been told by Dr. Susan Moore that their child should be born by way of a C-section due to his abdomen being too large for an ordinary birth. However, when Betts went into labor, the doctor on hand (Webb) patently refused the C-section, pressuring the couple to submit to a vaginal delivery despite previous warnings.

During the delivery, the doctor was unable to free the child from the birth canal, and, in the process, pulled the boy's head from his body. Realizing what he had done, Dr. Webb reportedly shoved the boy back inside the birth canal to hide his horrible error.

In September, Betts and Ammonette filed a lawsuit for negligence and wrongful death. As defendants, the suit names Dr. Gilbert Webb and Dr. Susan Moore, as well as Signature Medical Group and Midwest Maternal & Fetal Medicine Services.

This horrific tragedy is an example of the fact that medical malpractice can occur in the this country and in Pennsylvania at any moment. No amount of money will bring back Ms. Betts and Mr. Ammonette’s baby. Nevertheless, this story underscores the need for injured victims and their families to have at least the ability to seek justice and compensation for their losses.

As I write this post, it is election day. Picking candidates to elect is, of course, a personal decision for every voter. However, when casting your vote, please consider those candidates who are most likely to put measures in place that might curtail your legal rights, as opposed to those candidates who support the jury system in America.