Pittsburgh Medical Malpractice Blog

Regrettably, a baby is often the victim of medical malpractice. It is estimated that a birth injury occurs seven (7) times for every 1,000 deliveries. Events during delivery can result in the fetus suffering from an asphyxial insult resulting in long-term neurologic damages to the newborn (cerebral palsy). These insults are often preventable medical errors that can be avoided if the healthcare providers properly interpret the electronic fetal monitor. The fetal monitor is a means whereby the fetus communicates how he or she is tolerating delivery to the healthcare providers. If healthcare providers do not listen to (observe) these communications, tragic outcomes occur.

The most sensitive fetal monitoring is internal electronic monitoring. Internal monitoring involves the insertion of a sensor into the uterus which is then attached to the scalp of the baby. A tube that measures uterine contractions is typically placed into the uterus close to the baby. This tube monitors the strength and timing of contractions. All of the information which is derived from internal monitoring is then printed onto strips which are then interpreted by the healthcare providers attending to the delivery process. Electronic fetal monitoring determines the baby’s heart rate which should be between 110 to 160 beats per minute. During a contraction, the heart rate of the baby drops but should rapidly return to normal after the contraction is over. If the heart rate of the baby is less than 110 beats per minute or greater than 160 beats per minute, this is an abnormality and can be cause for concern.

In addition, the fetal monitoring tracings have to be properly interpreted by the healthcare providers in attendance during delivery. If these tracings become nonreassuring, prompt intervention needs to be taken in order to prevent a hypoxic (lack of oxygen) insult to the baby. Typical nonreassuring tracings include recurrent decelerations, overshoot, decreased variability and an increased resting uterine tone. Once nonreassuring fetal heart rate tracings are manifested, unless vaginal birth is imminent, an emergency Cesarean section must be performed. Failure to promptly deliver the baby can result in severe hypoxia (lack of oxygenation of the brain) which can result in permanent brain damage to the baby resulting in cerebral palsy.

Fortunately, the vast majority of deliveries result in the birth of a beautiful healthy child. However, failure of healthcare providers to properly interpret electronic fetal monitoring tracings can result in cerebral palsy which requires extraordinary sums of money to provide care for a child afflicted with this condition. Learn more about Birth Injury Lawyers today.

In an effort to protect physicians, the Pennsylvania legislature in 2002 passed a law called the Statute of Repose (read the full text of the Statute of Repose). This Statute differs from Pennsylvania’s Statute of Limitations in that the deadlines imposed for the filing of lawsuits are very strict. Although there are many situations where the Statute of Limitations can be avoided, there are very few exceptions to Pennsylvania’s Statute of Repose in medical malpractice cases. In fact, Pennsylvania’s Statute of Repose is extraordinarily restrictive and sets forth a firm time limit after which the rights of a medical malpractice victim will no longer be protected.

Pennsylvania’s Statute of Repose can be found in Section 513 of the Medical Care Availability and Reduction of Error Act, also known as the MCARE Act. It states that “no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract.” This means that regardless of when a patient discovers that he or she is a victim of medical malpractice, if the act of negligence occurred more than seven (7) years earlier, the medical malpractice victim is barred from filing a medical malpractice lawsuit. For example, if a patient had an x-ray taken in 2005, and discovered in 2013 that the x-ray revealed a cancer which could have been cured had it been treated in 2005, that person’s claim would be barred by the Statute of Repose since a lawsuit was not filed within seven (7) years from the failure of the radiologist to report the cancer. This obviously is a very harsh statute which can prevent patients from bringing meritorious medical malpractice lawsuits.

There are a few exceptions to this Statute of Repose. First, if a foreign object such as a sponge or a surgical instrument is left in the patient after a procedure, the Statute of Repose does not apply and the patient would have two (2) years from the date that the foreign object was discovered to have been left in the patient. Second, if the victim of medical malpractice is a minor, he or she has the right to bring a lawsuit after attaining the age of twenty (20) years even though the act of malpractice occurred more than seven (7) years earlier. Last, medical malpractice which causes the death of the patient has to be filed within two (2) years from the date of death unless there has been a fraudulent concealment or an affirmative misrepresentation by the healthcare providers.

Because of the Statute of Repose, if you or any member of your family believes that you are a victim of medical malpractice, it is important that you immediately consult an attorney so that your legal rights can and will be protected.

Regardless of your opinion on the great gun debate that has again resurfaced, the National Rifle Association (the “NRA”) and its members have to be applauded for their determination and drive in fighting for rights vested by the United States Constitution. The NRA is perhaps the most influential lobbying organization in the United States. When the NRA talks, legislators listen. Legislators listen because there are between three and four million members in the NRA and those millions of members regularly go to the polls and vote. The Sandy Hook Elementary School shootings were tragic beyond description and certainly provide a legitimate reason to re-examine gun safety issues. Re-examining those issues has caused a swell of national news coverage and invoked provocative debates across America. I wish the same were true with victims’ rights because debates are good. At a minimum, debates demonstrate that people care.

For nearly thirty years, there has been a constant and focused attack on limiting the rights of victims of medical malpractice and personal injury accidents. At last count all but thirteen states had enacted some form of legislation limiting the amount of money recoverable in personal injury accidents. To do so, legislators had to rip up and throw away the Seventh Amendment’s very clear declaration that, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Removing the right of a jury to determine the appropriate amount of damages to be awarded is exactly what the Seventh Amendment was designed to prevent.

As so eloquently stated by one of our founding fathers, Senator Richard Henry Lee, the primary purpose of the trial by jury in America was to protect the public from the elite: “The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy,--a select body of men, and those generally selected, by the prince, of such as enjoy the highest offices of the state,--these decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature, that the few should always be attentive to the good of the many."

Yet, powerful lobbyist like the American Medical Association and the United States Chamber of Commerce have successfully spearheaded efforts in thirty-seven states altering the rights guaranteed to Americans by our founding fathers. Curiously, there were no national marches, no press conferences, no spirited debates, and no citizen marches. Did these not take place because my fellow citizens don’t care? I certainly hope not. I think the far more plausible explanation is that the topic was not nationally covered and, therefore, most citizens did not even realize it was happening. Worse yet, when the topic was covered, national media outlets simply reported misleading propaganda from the lobbyists who were attempting to frighten the public into siding with them. To not side with them, the propaganda reported, would jeopardize healthcare for all Americans. That mistruth is the subject of a separate blog. Physicians and multi-million dollar companies being “protected from” jurors provides them with elite status not enjoyed by the common citizen. Our founding fathers would be more than disappointed.

I continue to believe that our founding fathers were correct in turning the civil justice system over to the people. In fact, scholars the world over always tout the American Justice System as the best ever created. I am confident that the majority of citizens would rather have a jury of their peers decide what they are owed than trust that decision to legislators. Yet, in the quiet of the night, without protest or news coverage, Constitutional rights have been eliminated. Call me a romantic but I still believe that the individuals in this great nation continue to care deeply about their individual freedoms and ability to enjoy life, free from injury caused by others. And if injury does occur through the fault of another then twelve citizens should determine what amount, if any, should be paid as compensation. Allowing legislators to alter the system is no different than attending a gun fight without a gun.

M is an adult male who had been under a urologist’s care for ten years. After a series of tests revealed M’s PSA level steadily rising over a period of four months, his urologist recommended a transrectal prostate biopsy.

Prior to the biopsy, the urologist had M take 500 mg of an antibiotic, Ciprofloxacin, and perform a fleet enema. Following the biopsy, the urologist again instructed M to take 500 mg of Ciprofloxacin. The day after M’s transrectal prostate biopsy, he began experiencing flu-like symptoms, including chills and nausea, and called his urologist’s office.

Ciprofloxacin is one of the most commonly used prophylactic antibiotics for transrectal prostate biopsies. Although Escherichia. Coli (E. Coli) is a well known bacteria associated with infections following transrectal prostate biopsies, it has been known for years in the medical community that Ciprofloxacin-resistant strains of E. Coli are becoming more and more common. When M’s urologist became aware of M’s condition on the day following the prostate biopsy, the urologist should have immediately admitted M to the hospital and ordered blood testing on an emergency basis and started M on an antibiotic known to be effective against E. Coli. The Ciprofloxacin was ineffective in combatting M’s E. Coli infection because it was resistant to Ciprofloxacin. This represents a failure to diagnose the patient's complications after the PSA biopsy.

Instead, informed of M’s condition through an intermediary in his office, the urologist ordered a routine blood test be performed, prescribed an additional, 10-day course of Ciprofloxacin, and suggested M to go directly to the emergency room if his symptoms worsened.

The blood test performed that afternoon revealed a white blood count of 19.3, far outside the normal range of 3.8 to 10.6, and was consistent with the presence of infection. Despite the urgency presented by the threat of an E. Coli infection, the pathologist who read and interpreted the results did not inform M or his urologist of the results immediately, and instead chose to fax them to the urologist shortly after 2 a.m. the following day making it impossible for the urologist’s office to promptly know of the results.. M’s urologist didn’t attempt to obtain the results from the lab on the day of the test.

Before the urologist had even became aware of M’s test results, M informed the urologist’s office that his symptoms had not improved. In accordance with the doctor’s orders, he went to the emergency room. Upon evaluating him, the emergency room physician found that M was suffering from sepsis — a potentially deadly condition characterized by full-body inflammation that is caused by infection.

After he was admitted to the hospital, M’s condition quickly worsened, and he was transferred to intensive care, suffering not only from sepsis, but also from acute renal failure and acute respiratory failure. Among other serious complications, M’s lower legs became gangrenous and required amputation. Rosen Louik & Perry, P.C. will vigorously pursue a medical malpractice case against both the urologist and the hospital on behalf of M to recover damages for M’s lost wages, his pain and suffering , his loss of life’s pleasures, his emotional distress, his disfigurement and any and all other damages he is entitled to recover under the laws of Pennsylvania

If you have had a transrectal prostate biopsy and following the procedure you begin to suffer from signs and symptoms of an infection, or flu-like symptoms, contact your physician immediately and demand to be seen, or go to the emergency room.

If you have had a transrectal biopsy and suffered serious complications as a result of medical malpractice, contact Rosen Louik & Perry, P.C., the medical neglect lawyers at www.caringlawyers.com or by telephone at 412.281.4200 or toll free at 800.440.5297 for a free consultation. Our website has more information about Post-Procedural Malpractice.

Every October, Breast Cancer Awareness Month splashes pink across the globe. From fundraising walks and races to the cleats and gloves worn by NFL players, to the world-famous landmarks illuminated in pink, you don’t need to look very far to find a color- coded reminder that catching the disease early can make all the difference.

More than 220,000 women and 2,000 men will be diagnosed with breast cancer this year. Nearly 40,000 people will die of thedisease.

Early detection offers patients the best chance of survival. Patients who are diagnosed with breast cancer early and receive treatment before it spreads have a 10-year survival rate of 98 percent.

Even if discovered in stage 2, 10-year survival rates for patients who receive optimal treatment can be as high as 90 percent, depending on the size and location of the tumor. Once cancer reaches stage four and metastasizes, it becomes much more difficult to treat.

M, a 40-year-old female with a family history of breast cancer, approached her doctor complaining of tenderness and a mass in her left breast. She had undergone a mammogram two years prior with a negative result. M’s doctor examined her, told her that her family history of breast cancer should be of no concern, and recommended a follow-up examination in two years. At M’s insistence, the doctor referred her for another mammogram. The radiologist read M’s mammogram as normal.

A year later, M began experiencing back pain that didn’t respond to various forms of treatment. An MRI revealed that she had metastatic breast cancer. A jury ruled that M’s doctors failed to identify and diagnose her cancer in an earlier, more treatable stage, and awarded her $12.8 million as a result of a breast cancer malpractice case.

But just because breast cancer is more than 100 times more common in women than in men doesn’t mean men are immune.

C, a 79-year-old male, complained to his doctor that he felt a palpable mass in his left breast. Noting the mass, C’s doctor ordered a bilateral mammogram and ultrasound. The tests revealed increased density and calcification in the left breast as compared to the right, but the radiologist saw no evidence of a mass and delivered the results of the tests as negative. Neither the radiologist nor C’s doctor referred him to a breast surgeon or ordered a biopsy.

Nearly four years later, C again complained to his doctor of worsening symptoms in his left breast, including a larger mass than the one he’d noticed before. This time, a mammogram revealed two separate, solid masses, and a subsequent biopsy showed moderately differentiated infiltrating ductal carcinoma. A full-body PET-CT further revealed that that the disease had metastasized, and spread to C’s spine and liver. C’s family pursued action against his doctors and the matter was settled out of court for a significant but confidential amount.

Men who have a family history of breast cancer, or who carry a mutation in the BRCA1 or BRCA2 genes are at an increased risk to develop the disease. Other risk factors for men include age, radiation exposure, heavy alcohol consumption, liver disease, Klinefelter syndrome, estrogen treatment, obesity and testicular conditions.

Learn more about breast cancer:

• National Breast Cancer Awareness Month


• American Cancer Society


• National Cancer Institute


• CancerCare


• Prevent Cancer Foundation


• Susan G. Komen for the Cure

If you or someone in your family is suffering from breast cancer that initially went undiagnosed, contact our office. We specialize in cases invovling a failure to diagnose cancer.

Every October, Breast Cancer Awareness Month splashes pink across the globe. From fundraising walks and races to the cleats and gloves worn by NFL players, to the world-famous landmarks illuminated in pink, you don’t need to look very far to find a color-coded reminder that catching the disease early can make all the difference.

More than 220,000 women and 2,000 men will be diagnosed with breast cancer this year. Nearly 40,000 people will die of the disease. Some of those deaths are the result of breast cancer misdiagnosis or late diagnosis.

Early detection offers patients the best chance of survival. Patients who are diagnosed with breast cancer early and receive treatment before it spreads have a 10-year survival rate of 98 percent.
Even if discovered in stage 2, 10-year survival rates for patients who receive optimal treatment can be as high as 90 percent, depending on the size and location of the tumor. Once cancer reaches stage four and metastasizes, it becomes much more difficult to treat.

M, a 40-year-old female with a family history of breast cancer, approached her doctor complaining of tenderness and a mass in her left breast. She had undergone a mammogram two years prior with a negative result. M’s doctor examined her, told her that her family history of breast cancer should be of no concern, and recommended a follow-up examination in two years. At M’s insistence, the doctor referred her for another mammogram. The radiologist read M’s mammogram as normal.

A year later, M began experiencing back pain that didn’t respond to various forms of treatment. An MRI revealed that she had metastatic breast cancer. A jury ruled that M’s doctors failed to identify and diagnose her cancer in an earlier, more treatable stage, and awarded her $12.8 million.

But just because breast cancer is more than 100 times more common in women than in men doesn’t mean men are immune.

C, a 79-year-old male, complained to his doctor that he felt a palpable mass in his left breast. Noting the mass, C’s doctor ordered a bilateral mammogram and ultrasound. The tests revealed increased density and calcification in the left breast as compared to the right, but the radiologist saw no evidence of a mass and delivered the results of the tests as negative. Neither the radiologist nor C’s doctor referred him to a breast surgeon or ordered a biopsy.

Nearly four years later, C again complained to his doctor of worsening symptoms in his left breast, including a larger mass than the one he’d noticed before. This time, a mammogram revealed two separate, solid masses, and a subsequent biopsy showed moderately differentiated infiltrating ductal carcinoma. A full-body PET-CT further revealed that that the disease had metastasized, and spread to C’s spine and liver. C’s family pursued action against his doctors and the matter was settled out of court for a significant but confidential amount.

Men who have a family history of breast cancer, or who carry a mutation in the BRCA1 or BRCA2 genes are at an increased risk to develop the disease. Other risk factors for men include age, radiation exposure, heavy alcohol consumption, liver disease, Klinefelter syndrome, estrogen treatment, obesity and testicular conditions.

Learn more about breast cancer:

• Breast Cancer Awareness Month


• American Cancer Society


• National Cancer Institute


• CancerCare


• Prevent Cancer Foundation


• Susan G. Komen for the Cure

If you or someone in your family is suffering from breast cancer that initially went undiagnosed, please contact our office.

As has been mentioned in prior blogs, if my office was on fire and I had time to grab only one item from my office before leaving, the decision would be easy. I would flee the office with the wooden box full of thank you notes from clients that I have received over the past 20 plus years securely under my right arm. I cherish each and every note but this past holiday season one card caused me to pause for an inordinate amount of time and to this day remains in my mind. The card was from a family I represented following a devastating birth injury to their son. At the time, I was a young lawyer lacking the years of trial skills I have now accumulated and the import of this case was almost overwhelming. The family was truly lost and the helpless little infant was even worse. As the case developed, the defense assembled an impressive array of witnesses opining that the birth injuries were not caused by doctors’ negligent failure to deliver the child in a timely manner, rather, the birth injuries were caused by other non-negligent factors that pre-dated delivery. The “defense” in this case tore at my inner constitution.

I knew the theories advanced by the defendants were wrong, were not supported by fact or science, and were in fact purchased from expensive, well-credentialed experts for the sole purpose of defeating my lawsuit. I knew from my training that I was supposed to leave my emotions out of the case in order to stay focused and provide the most effective representation to my clients. I remembered the teachings of Plato and the Aristotle debate regarding Logos, Pathos, & Ethos. I believed that I was more intelligent than my adversary and knew that I could defeat them on the intellectual playing field. BUT, this case involved a helpless child who I cared deeply about and I just could not separate my emotions. I could not treat the high paid liars with respect. I could not bite my tongue in the face of an intellectual conspiracy designed to rob a family of money needed to take care of a son who was victimized by the very doctors his family trusted. So I came out swinging, motivated by my deep concern, if not love, for this little guy and his parents. My punches were backed by scientific research and superior preparation. I was confident that Vegas odds-makers would not even put a line on this fight because it was a no contest. I soon realized that the law, much like life, is not always fair.

The battle was much closer than it should have been. I had little success in getting the junk science defenses thrown out of the case as they should have been. Many reasons contributed to the lack of success – laws favoring the doctors, unethical experts, and a Judge who was afraid to make a controversial ruling. I caused great damage to the liars who claimed that this boy’s birth injuries were caused by unheard, unseen, unproven events as I knew I would. There was, unfortunately, one aspect of the case where science could not help me – the life expectancy of my client. The dishonest defendants argued that the baby was injured so badly that he would not live past age 7 at best. AND, they found a qualified expert who sold them that opinion. I hired an expert who disagreed and said that with the appropriate care my client could live to a near normal life expectancy. I knew that my client would live a long life, not because of medicine. Because of love. His parents so loved him that I knew he would be safe in their care. The quality of his life was, however, dependent on getting money to support his needs. With no crystal ball available to predict the future there was a risk that a jury would compromise and meet at the middle of both ages. In this circumstance, that would be a tragic result because if my expert was correct then when my client’s life was only half over, he would have no more money for his care. Certainly, he deserved the benefit of the doubt over the negligent doctors.

Before the trial ended, the case settled for admittedly a large amount of money. Enough money to purchase annuities that would provide annual income to purchase the care that my client needed each and every year for my projected near normal life expectancy. As a lawyer, you never take more pride in your efforts than when the fruits of your labor improve forever the life a child. I remain proud to this day. Now, back to that card I mentioned. This year I received a card from this family with a very special picture – a graduation picture of my little friend. Yes, the same friend who the liars and cheats of the world opined, to a reasonable degree of medical certainty, would not live past age seven. Now eighteen and a high school graduate who enjoys life and is a wonderful inspiration to his parents and all those around him. He has, and will continue even after I am long gone, to make the world a better place. My only regret is that I can’t share this picture with the defense “experts” who stated with certainty that he would be dead more than 10 years ago. I honestly wonder how those people sleep at night. I suppose I also regret the fact that similar liars and cheats will appear in the next birth injury claim case I file. The law, much like life, should be more fair to the less fortunate.

Jon Perry, Esquire, of Rosen, Louik & Perry, recently authored this piece for PAJustice News.

Huge Victory for Injured Victims Facing Large ERISA Liens
James McCutchen was seriously injured in an auto accident,requiring medical treatment exceeding $67,000 that was paid by a US Airways employer self-funded-ERISA plan. Because of limited insurance coverage, McCutchen’s recovery was limited to $10,000 from the tortfeasor and $100,000 from underinsured motorist coverage. When US Airways demanded repayment of its entire lien, McCutchen’s attorney refused and sought to negotiate a fair reduction. US Airways refused to negotiate so McCutcheon’s attorney escrowed $41,500 representing the lien less attorney fees.

US Airways sued McCutchen and his attorney in the United States District Court for the Western District of Pennsylvania pursuant to section 502(a)(3) of ERISA, which permits an employee benefit plan to seek “appropriate equitable relief.” In the district court, McCutchen and his attorney asserted that the relief sought — recovery of the entire lien without paying any recovery costs — was not “appropriate” for a number reasons, including, (1) that, because of limited insurance coverage, McCutchen had recovered only a minor portion of the true value of his case, and (2) that permitting US Airways to recover its entire lien without paying attorney’s fees was not equitable. Relying upon the strict language of the US Airways’ employee benefit plan, which provided that no recovery costs be paid, and Third Circuit precedent holding that the plan language was controlling, the district court granted summary judgment in favor of US Airways and ordered McCutchen to repay the entire lien.

On appeal, a unanimous panel of the Third Circuit reversed. The court first noted that the Third Circuit precedent relied on by the district court was no longer controlling because of intervening United States Supreme Court precedent that clearly held that an employer like US Airways was limited to seeking “appropriate equitable relief” under section 502(a)(3); the Supreme Court also made clear that it was not required to decide what relief was “appropriate.” The Third Circuit noted that the precedent relied on — that the terms of the plan must be enforced as written — did not even mention section 502(a)(3) and for that reason was no longer controlling. Relying further on language of the US Supreme Court, the Third Circuit held that traditional equitable defenses, such as unjust
enrichment and others, had to be considered by the district court in determining what constituted “appropriate” relief and that the plan language was not sacrosanct. The Third Circuit vacated the district court’s order and remanded the case for further proceedings to determine the appropriate relief to which US Airway was entitled.” Plaintiff’s attorney had waived his entire fee in light of the severity of injury and limited coverage.

The published, precedential opinion of US Airways, Inc. v. James E. McCutchen, No.
10-3836 (3rd Cir. November 16, 2011) is available at the Third Circuit Court of Appeals
website: www.ca3.uscourts.gov

Note: The appeal was argued by Matt Wessler, the Kazan-Budd Attorney at Public Justice. His co-lead counsel were PAJ Sustaining Member Neil R. Rosen, Esquire and PAJ Member Paul Hilko, Esquire. 

This development will greatly help Pennsylvania Auto Accident Attorneys and car crash victims seeking insurance needed insurance settlements.

Despite the stress, time pressures and hustle, the holiday season remains my most favorite time of the year. There truly is a magic to the season as the best in people makes an annual appearance. For me, the holidays are so special because I receive stacks of cards from former clients updating me on the events of the year and thanking me for the difference we made in their lives.

Ironically, some of the cards I receive are from folks that we were not able to help at all. From people whom I had to explain why the tragedy that befell them was not actionable in a court of law. From wonderful families whom I had to regrettably inform that they would have to find a way to deal with their problems with no assistance from anyone. Over time I have learned that the answers and explanations I provided these families were valuable possessions in the struggle to move forward. Piece of mind is, to these people, priceless.

I also treasure the updates from the individuals that I have been able to help. As I tell my clients, all the civil justice system can give you is money and money does not restore anything and money doesn’t make problems go away. Money does, however, make future problems easier to deal with and every year I see these statements turned into reality by those I have been fortunate to represent.

These cards restore the magic of my profession and provide the strength and character needed to face another year of battles. I save every card and go to my secret box to read those cards when the grindstone of the profession has me worn down. On days when I feel like giving up, these cards remind me of the reason I do what I do. These cards and the wonderful folks who send them are my incentive to continue to help as many people as possible.

All of us at Rosen Louik & Perry hope you experience magic this holiday season.

Motorcycle enthusiasts won a big victory in 2003 by having Pennsylvania’s helmet law stricken. But this decision came under scrutiny after the recent accident report of a 53 old, David Robinson. He was travelling on Quarry road and as he approached a curve, his motorcycle crossed the central line and stuck an embankment. As a result, he slid for about 150 feet and his head hit the pavement resulting in a fatal injury. Though no one can say with conviction that he would have survived had he been wearing a helmet, Capt. Tom Roche said that he believes the man may have. He said he appreciates the freedom of riders being given the choice to wear a helmet but notes that incidents such as this could be prevented. Now, a western Pennsylvania lawmaker is trying to restore the law of mandatory wearing of helmets.

The current state law allows the motorcyclist to ride without a helmet if he is more than 21 years old. The rider must also have a license to operate a motorcycle for more than two years or he should have completed a motor cycle safety course approved by PennDOT. The state representative, Dan Frankel who is the lead sponsor of House Bill 945 (restore the law of mandatory wearing of helmets) has reintroduced legislation to restore the helmet law in Harrisburg. For riders under 21 years, the representative introduced a bill to provide for special license plates.

In his support, Frankel reported a study which shows the staggering costs of health care because of the serious injuries as a result of not wearing helmets. The study compared two years pre helmet law (2001 and 2002) and two years post helmet law (2004 and 2005). The head injury deaths were increased by 66% and people hospitalized due to head injury increased by 78%. Thus, the number of injuries increased much more rapidly than did the number of riders on the road. The study also showed an increase of 132% of acute-care hospital charges for motorcycle related head injuries. This doesn’t include rehabilitation costs and long term care.

Motorcycle fatalities have increased from 152 in 2004 to 185 in 2006 and the main injuries that occur due to the accident include Traumatic Brain Injury (TBI), spinal cord injury, broken bones and internal bleeding etc. Wearing a helmet will help to reduce the seriousness of TBI and spinal cord injury. A rider injured in a motorcycle accident can claim money for medical expenses and also file a claim for pain and suffering.

State Rep. Frank Farry, R-142, of Langhorne suggested that he would read the bill and analyze the data that shows the amount of head related injures before and after the law and then comment on the action. He feels that it would be a burden to the tax payers if the freedom of wearing helmet results in injuries and fatalities.

“This study shows an incredibly dramatic increase in head injuries and hospitalizations that exceeds the increase in the number of motorcycle riders in Pennsylvania. The implications of this for health care costs are staggering and affect everyone, through tax-funded health care, health insurance premiums and covering uncompensated care," said Frankel

The riders have a different story. About 25 bikers were taking a break from their motorcycle rides at Brian's Harley-Davidson/Buell in Middletown on Saturday. About half of them decided not to wear helmet. Two veterans who have been riding Harleys since the early 1970s suggested that the decision to wear helmet should be left to the rider. One of the riders, Bob Adler also said that wearing a helmet confuses him and he prefers to ride without helmet. He also stated that the main reason for accidents is due to cars and trucks not paying attention to motorcyclists. He added that he maintains distance between himself and cars and so stayed accident free for all the while without wearing a helmet.

With summer now here, more motorcyclists are getting their bikes out and hitting the open road. Combined with the rising gas prices more people are buying motorcycles and the roads are becoming more populated with the 2-wheelers. Unfortunately, there seems to be an underlying prejudice against motorcyclists that many times results in law investigators placing blame on riders without proper examination of the case facts.

Sadly, motorcycle accidents often result in such serious injuries that victims have difficulty managing even day-to-day tasks, are unable to work, and sometimes require long-term care. Because of the bias that motorcyclists are less responsible drivers, personal injury cases involving bikes can be extremely difficult to win.
At Rosen Louik & Perry, P.C. our experienced lawyers will fight to ensure you receive proper compensation for your motorcycle injuries. If you or a member of your family has suffered a serious injury, it is important to recover the resources you will need for medical care and other necessary expenses. We invite you to contact our Pittsburgh office for a free consultation and case review. Our personal injury lawyers will only take your motorcycle accident case if they feel it will improve your situation.

As we prepare for another Presidential election, barely a day goes by without hearing a mastermind plan to fix the country’s problems from a Presidential hopeful, or long shot. The problems facing our country are too enormous to be easily fixed and the political rhetoric is difficult to tolerate. That being said, it is beyond disturbing that politicians willingly and knowingly distort facts and lie in order to keep their political money flowing. Despite the economic collapse over the past several years, the facts are that the rich have been getting richer while things keep getting worse for the poor, the downtrodden, the unemployed. The folks picketing Wall Street and corporate headquarters do have a legitimate point. Can the middle class ever be restored without meaningful financial and corporate reform? We will probably find out in a few years because corporate America understands the game of public opinion. Corporate America has the insight to fool the American public and the money to peddle their snake oil. The deception of the American public is so outlandish as to be criminal. A simple review of an issue near and dear to our hearts here at Rosen Louik & Perry provides a frightening illustration.

While the stagnant economy continues to hurt those at the bottom of the American workforce, politicians and corporate America are telling the public that the civil justice system needs major reform in order to “save” healthcare. The story begins with false assertions about malpractice insurance premiums driving up the cost of providing medical care and forcing doctors to flee states. The answer: strip citizens of their Constitutional right to a trial by jury of their peers who will determine what verdict, if any, should be given and place government mandated caps in place. Fearing for their own well-being, most Americans accept the rhetoric without fully understanding what they are giving up. More shocking, however, is that these lies are being perpetuated by individuals who are benefitting from the bad economy in an industry that is not suffering!!

Annual compensation totals, compiled by Forbes’ Scott DeCarlo, include salary, bonuses, perks and the value of exercised stock options through September 6, 2011, were recently released. Compensation for the chief executives of America’s biggest companies is way up in 2011, 28 percent higher than last year on average. Those already in the Top 25% saw their compensation nearly double! Cash bonuses are triple what they were before the recession.

Healthcare is particularly interesting. Occupying the top spot as America’s highest paid executive is John Hammergren of McKesson, the largest distributor of both pharmaceuticals and health care I.T. systems. His compensation, only $131 million this year!! Not far behind are George Paz (fifth place at $51.5 million), who runs prescription drug distributor ExpressScripts as well as Stephen Hemsley (eighth place at $48.8) of UnitedHealth Group.

Those in other industries are doing just fine as well: Ralph Lauren $66.7 million — ranking him in second place; Michael Fascitelli of Vornado Realty is third, with compensation of $64.4 million; Bob Iger of Walt Disney at $53.3 million, is in fourth place; Michael Watford of Ultra Petroleum, at $43.7 million. Poor Rex Tillerson, of ExxonMobile didn’t crack the top 25 because he only made $13.9 million.

I am not here to argue that these individuals do not deserve the money they are being paid. How would I know? How would anyone know? What we do know is that in the American system of capitalism, the executives have convinced their companies that they are very valuable. Capitalism is as American as apple pie. Capitalism is a defining feature that sets America apart from many other countries in the world. I am not here to question capitalism. I am here, however, to question why Politicians and corporate America only want to restrain capitalism in areas that might have a slight negative impact on a company’s bottom line. This is wrong. Individual Americans deserve the same hands off government treatment as rich corporate America enjoys. And if a jury of twelve decides that a pharmaceutical company should pay an injured victim $5 million then the verdict should be paid and not reduced because of artificial government caps made into law in exchange for campaign contributions.

Forbes.com slidesshow: America’s 25 highest-paid ceos

On June 28, 2011, Pennsylvania Governor Corbett signed into law the Fair Share Act (“Senate Bill 1131”), which represents a significant shift in tort liability law in Pennsylvania. Under the Fair Share Act, when liability is attributed to more than one defendant, each defendant found to be less than 60% liable is responsible for only its proportionate share of the liability (with certain exceptions noted below). Five defendants found 20% liable would each be responsible for 20% of the verdict regardless of the ability to pay.

Pennsylvania Tort Liability Prior to the Fair Share Act

Prior to the enactment of the Fair Share Act, Pennsylvania followed joint and several liability. This concept meant that multiple defendants could be held jointly or separately liable for 100% of all damages owed to a plaintiff. Under this system, when a plaintiff obtained a judgment against multiple defendants, the plaintiff could require an individual defendant to pay the entire liability as long as the defendant was found to be at least 1% responsible. At first blush, that seems harsh. When you understand shell companies and intricate corporate maneuverings, however, the law makes perfect sense. The conventional wisdom behind joint and several liability was that Defendants would not escape liability through sophisticated and underinsured business maneuvers. Plaintiffs would be paid and a Defendant that paid more than its fair share of the judgment would seek compensation from those defendants who paid less than their portion. The innocent, injured victim would be paid and the business partners could fight their own battles.

Tort Liability Under the Fair Share Act

Under the Fair Share Act, defendants are now required to pay only their proportional share of liability, except in the circumstances listed below. Courts must now enter separate judgments in favor of the plaintiff and against each defendant for their apportioned amount of liability, rather than a single judgment covering all parties. A single defendant may still be required to pay the entire amount of damages under the following circumstances:

1. An action for intentional misrepresentation;
2. An action for an intentional tort;
3. Where the defendant has been held liable for 60% or more of the total liability;
4. An action over the release or threatened release of a hazardous substance;
5. An action concerning a violation of the Liquor Code.

In these situations, the prior law of joint and several liability applies and a single defendant can be forced to pay an amount of damages higher than their proportionate liability and that defendant is entitled to recover compensation from any other defendant who paid less than its fair share.

Additionally, defendants who became nonparties because of a release from the plaintiff may be brought back into the action for purposes of determining their respective share of the liability among all the other defendants.

Business groups such as the Chamber of Congress and insurance companies applauded The Fair Share Act. Governor Corbett publicly and proudly acknowledged that the new law is intended to benefit companies doing business in Pennsylvania because it may limit risk of liability for all damages in cases involving multiple defendants. Of course, there are no statistics or legitimate studies proving his assumptions. More troubling, however, is how the average citizen was misled into believing The Fair Share Act benefited them.

Consider this example of how the law works. Let's assume there are two defendants racing down a highway who collide and critically injure a single working mother of three. Accident investigations clearly conclude that both drivers are each 50 percent at fault. Driver one has state minimum liability insurance of $15,000, Driver two is in a company car carrying $5,000,000 in insurance. The parties all agree that it will take $ 7,000,000 to care for the quadriplegic mother and her children. Under the new “fair” law, the family will receive $15,000 from driver one and $3,500,000 from driver two. Who pays the balance of the $3,500,000? The victim is paralyzed and doesn’t have the ability to pay. Defendant two is protected thanks to Governor Corbett and the Chamber of Commerce.

So who pays? You guessed it. It’s you as a Pennsylvania taxpayer. The new law effectively transfers responsibility from corporate wrongdoers onto the shoulders of the taxpayer. Elected officials stating with a straight face that this law is beneficial to the citizens of Pennsylvania is an insult to the intellect of the populous. This law protects business and insurance companies and no one else.

Consider another example. You consent to have a surgical procedure performed a large regional hospital based, in part, on the fact that you see their commercials and corporate logo everywhere and you are confident in the hospital. You also believe the hospital is far more financially solvent than the small neighborhood hospital and, God forbid, if something bad happens the large hospital has the ability to pay for mistakes made. You have the procedure and things go very wrong in the post-op period. It is determined that the surgeon was 60% to blame and the hospital nurses were 40% to blame. Your damages are well in excess of $20,000,000. Under the new law that was touted as being good for you, you collect the $1,000,000 required insurance from the surgeon, $8,000,000 from the hospital and rely on the public to pick up the $12,000,000 shortfall. You also have the ability to pursue the surgeon personally, garnish his personal assets and force him into bankruptcy. Under this example, not a single individual (plaintiff nor defendant) was helped. The true recipients of the “fairness” of the new law were the large, wealthy regional hospital and its insurance company.

The legal principle behind the old joint and several liability rested upon the premise that defendants were in the best position to pay for the plaintiff’s damages. Now, under the “Fair” Share Act, injury victims may be under-compensated and the taxpayers will be forced to support the injured.

We suggest that Governor Corbett and the Pennsylvania Legislature invest in dictionaries and additional education because they certainly do not know the meaning of “fair.”