Pittsburgh Medical Malpractice Blog

Accidents happen every minute of every day due to reckless drivers, unsafe gun care, medical malpractice, and many other acts of irresponsibility. When a loved one has been lost in a tragedy, the effects can have a devastating impact on the family members surviving the departed.  In addition to grief, families can be forced to deal with economic problems, insurance companies and numerous problems and obstacles that were not foreseen.  Unfortunately, the law of Pennsylvania relating to a death caused by the carelessness of another is equally confusing.  As a result,  many families turn to legal counsel for advice and assistance. At Rosen Louik & Perry, a Pittsburgh Law Firm, we have been helping  families understand the legal and financial options available, and obtain compensation from those accountable.

Although a death may be unintentional, it is still the responsibility of the defendant to provide proper and adequate compensation for the decedent as well as the family survivors.  In Pennsylvania, family members of the departed  and/or a personal representative can file claims against those responsible up to 2 years after the death.  Many people belief that the term “wrongful death” is a special legal cause of action different and distinct from a general negligence, or carelessness, claim.  In fact, it is not.  Under Pennsylvania law, when a person’s life ends as the result of the carelessness of another two legal causes of action are created:  a wrongful death claim and a survival claim.  These claims are brought in one lawsuit.  The purpose of the Wrongful Death Act is to compensate certain enumerated relatives of a deceased for the pecuniary loss suffered by the relatives as a result of the deprivation of the part of the earnings of the deceased and certain other pecuniary benefits  that the relatives would have received from the deceased if he lived.    The Wrongful Death Act provides that the right of action shall exist only for the spouse, children or parents of the deceased.  In order to recover under the Wrongful Death Act the beneficiary must not only have the requisite family relationship to the deceased, but must show that by reason of the wrongful death he suffered the loss of a reasonable expectation of pecuniary advantage.  In a wrongful death action, the recovery is for the damages suffered by the decedent’s beneficiaries and not for the injuries to the decedent.   Therefore, damages under the Wrongful Death Act are determined from the standpoint of the beneficiaries rather than from that of the decedent, and recovery cannot be obtained for injuries suffered solely by the decedent such as the decedent’s pain and suffering.  In addition to damages based on the portion of the decedent’s earning that would have gone for their benefit, the beneficiaries in a wrongful death action may also recover for certain other types of lost benefits, such as a spouse’s loss of the decedent’s services, society and companionship, a parent’s loss of the services of a child, and a minor child’s loss of the guidance and nurture of a deceased parent.

At common law a right of action for personal injuries, regardless of whether suit had been commenced before death, did not survive the death of either the injured person or the wrongdoer.  This situation was remedied by the enactment of a series of statutes, commonly known as the Survival Act.    A survival action is , in effect, the personal injury action that could have been brought by the decedent if he had lived, now brought by the decedent’s personal representative.   As such, this is where pre-death pain and suffering, loss of enjoyment of life’s pleasures and other claims personal to the decedent are to be compensated.  A survival claim is not a new cause of action, but merely a continuation in the decedent’s personal representative of the right of action that accrued to the decedent under the common law because of the tort.   The damages recovered in a survival action are subject to estate and inheritance taxes and to the claims of creditors.  The damages in a survival action are distributed according to the decedent’s will if he died testate or according to the intestate laws if he died intestate.  By contrast, a wrongful death action belongs to the designated beneficiaries.  The action does not belong to the estate.  Damages are not subject to estate or inheritance taxes or to the claims of creditors and are distributed according to the intestate laws regardless of whether there is a will.

When malicious, grossly negligent, or intentional acts are involved in a wrongful death case, punitive damages may be awarded to the family of the victim as a punishment to the offending party as a means to dissuade similar acts from occurring in the future. These damages are imposed in addition to compensatory damages. Juries have the power to assess punitive damages at whatever amount they deem appropriate for the most part. However, a judge may overrule or decrease the punitive damage compensation if they believe it to be excessive or improper.

Unfortunately, certain state legislatures have placed limits on the amount of money that juries are permitted to award families who have lost a loved one as the result of the carelessness of another.  Limits on compensation for wrongful death suits vary state by state.   In most states, employees have forfeited their right to bring private lawsuits for money damages in exchange for guaranteed medical and reduced wages payments under a workers’ compensation system.

Monetary compensation can never cure the anguish, distress and pain caused by the loss of a family member or loved one.  Monetary verdicts and settlements can help lessen the burden of financial difficulties left by the loss of a family member and guarantee that the family is  cared for in the absence of the victim.

Speaking with an attorney can provide invaluable support and assistance when dealing with a suspected wrongful death.   Rosen Louik and Perry, P.C. has won hundreds of  wrongful death cases thereby providing families with proper compensation for the loss of loved ones.  Families are entitled to know if their loved one’s death was caused by another’s careless act.  Call for a free consultation, 412-281-4200.

The majority of medical malpractice lawsuits result from the failure to diagnose and treat a serious condition in a timely fashion. Examples of those diseases that are most often misdiagnosed, or where there is a delay in diagnosis, are breast cancer, colon cancer, lung cancer, heart attacks and appendicitis.

As most people know, early detection is a key factor in the fight against cancer. For example, a woman diagnosed with breast cancer in its early stages has a greater survival rate than a woman whose breast cancer goes undiagnosed and/or is misdiagnosed. However, wrongful deaths caused by the misdiagnosis of cancer are on the rise.

Though the reasons for misdiagnosis vary, cancer misdiagnoses unquestionably are on the rise. Misdiagnosis may be the result of errors by doctors, specialists and laboratory tests, and these errors range from a totally mistaken diagnosis to a partial misdiagnosis.

WHAT FACTORS ARE FREQUENTLY ATTRIBUTED TO A MISDIAGNOSIS OR FAILURE TO DIAGNOSE?

* Failing to identify an obvious lump during breast examination
* A cancerous lesion is missed in the biopsy procedure
* A malignant mass is diagnosed as benign
* Specimens are mishandled by pathology, or improperly read or interpreted
* Failing to order x-rays, CT scans or MRI’s
* Failing to properly evaluate test results
* Failure to understand or notice the nature of a patient’s complaints
* Failure to adequately screen patients who are at an increased risk for cancer
* Failure to refer a patient to a specialist for further testing
* Failure to follow up with a patient if cancer should have been suspected

The Pittsburgh, Pennsylvania medical malpractice law firm of Rosen Louik & Perry, P.C. has the experience, knowledge, skills, and resources to successfully represent clients in cancer misdiganosis cases. Our understanding of the legal and medical issues involved come from years of successfully representing individuals who have been misdiagnosed.

If you or someone you love has been misdiagnosed, or experienced a delay in diagnosis, Rosen Louik & Perry, P.C. can help. Contact us today for your FREE evaluation.

Physicians often commit medical malpractice when they fail to diagnose a disease or other condition in a timely fashion. A study recently published in the Annals of Internal Medicine concluded that in a vast majority of the cases studied, medical malpractice was caused by errors as basic as failing to obtain an adequate medical history or perform an adequate physical examination.

The study reviewed 307 randomly chosen closed medical malpractice claims from four insurance companies, all of which involved allegations of missed or delayed diagnosis in an office setting. 60 percent of the cases studied resulted in serious harm to the patients and 30 percent resulted in death. The cases overwhelmingly involved various types of cancer, most frequently breast cancer or colorectal cancer.

The researchers found that in 100 of the cases, doctors failed to order appropriate diagnostic tests. In 81 cases, the error was failure to create a proper plan for follow-up. 76 of the cases involved physician failure to obtain an adequate medical history or perform an adequate physical examination. In 67 of the cases, doctors failed to correctly interpret test results. The researchers also concluded that that factors contributing to the medical malpractice included failure of judgment (79%), lack of vigilance or failure of memory (59%), and lack of knowledge (48%). The study’s lead author, Dr. Tejar Gandhi, director of patient safety at Boston’s Brigham and Women’s Hospital, suggests that these errors could be reduced by more use of electronic medical records and the use of nurse practitioners to make sure that follow-ups actually take place.

An article in the Associated Press quotes Dr. Steven Sorscher, an oncologist at Washington University Medical School in St. Louis. As Dr. Sorscher stated concerning the study, “It seemed like the bottom line was that the problems were problems that would occur less if the person was just very compulsive or very diligent. It highlights the fact that the causes of serious errors are often preventable.”

Sources: Annals of Internal Medicine; Associated Press

In diagnosing disease, physicians increasingly rely upon pathologists, medical doctors who specialize in the study of changes in cells, tissue and organs. A specimen taken from a patient, generally by biopsy, will be submitted to a laboratory for microscopic examination by a pathologist, who is asked to offer an opinion whether a disease, often cancer, may or may not be present. Treatment decisions are often made exclusively on the opinion of a pathologist. Pathology errors can constitute medical malpractice that lead to devastating patient injuries.

Pathology errors generally fall within three broad categories. One type is a processing error. Pathology labs are the specimens of numerous patients and those specimens will be handled by different employees. It is well known that processing errors frequently occur, ranging from the intermingling of specimens from different patients to placing the wrong patient’s name on a pathology report that is sent to the treating physician. The other two broad categories involve errors by the pathologist in examining and analyzing a patient’s specimen. A pathologist can offer an opinion that disease is not present when in fact it is (under-reporting) or that disease is present when in fact it is not (over-reporting).

The Pittsburgh medical malpractice law firm of Rosen Louik & Perry has represented many clients who were victims of pathology error. Such error can lead to the failure to timely diagnose various forms of cancer, sometimes leading to wrongful death. Other such errors can lead to the unnecessary removal of healthy organs. The firm recently obtained a verdict of $5.5 million against Dianon Systems and in favor of a husband and wife where the husband’s healthy prostate was removed because of a laboratory processing error. The firm is presently representing a Colorado couple under virtually identical circumstances against Dianon Systems.

A study published in the December 1, 1999 issue of the journal Cancer studied over 6,000 patients and found that one or two of every 100 patients seeking treatment following biopsy have an incorrect diagnosis. Dr. Jonathon Epstein, the Johns Hopkins pathologist who headed the researchers involved in the study, suggested a second pathology opinion be obtained when cancer is reported before surgery or other major therapy.

Source: Cancer

All too often, medical negligence kills a patient. In Pennsylvania, lawsuits to recover for the death of a loved one consist of two separate actions, i.e., a “wrongful death” action and a “survival” action. Both of these actions had to be created by legislative action because neither was recognized by the common law. The survival action is the action that the decedent could have brought had he or she lived and compensates for damages sustained by a decedent before death. As a result, any recovery under a survival action is considered a part of the decedent’s estate, subject to Pennsylvania inheritance taxes and claims of the decedent’s creditors. If a decedent died with a Last Will and Testament (“testate”), any survival recovery and the decedent’s other assets will be distributed according the Will. On the other hand, if a decedent died without a Will (“intestate”), the survival recovery and remaining assets will be divided as required by Pennsylvania intestacy laws.

On the other hand, a wrongful death action compensates certain survivors of a decedent for their losses. Under Pennsylvania law, only spouses, children and parents are potentially eligible for compensation. It must be noted, however, that although a surviving spouse and minor children can recover in all cases (assuming liability can be proven), adult children and parents can recover wrongful death damages in limited circumstances. Any wrongful death recovery will be divided among the eligible “wrongful death heirs” according to a legislative formula. Because a wrongful death action is intended to compensate wrongful death heirs for their losses occasioned by the decedent’s death, any recovery goes directly to the wrongful death heirs. Such recovery is not a part of a decedent’s estate and is not subject to Pennsylvania inheritance taxes or claims of creditors.

Under Pennsylvania law, only a decedent’s personal representative may maintain a survival action. (In most cases where a decedent dies testate, the Will appoints the personal representative—where a decedent dies intestate, the right to serve as personal representative is generally decided by intestacy laws). However, the right to bring a wrongful death action is somewhat different. In the first six months after a decedent’s death, only the personal representative may file a wrongful death action. If no action is filed in the first six months, anyone entitled to share in wrongful death damages may bring the action. From a practical standpoint, however, in almost all cases, a wrongful death action is brought by a decedent’s personal representative because even though the two actions are completely separate, the Pennsylvania Rules of Civil Procedure require that if the two separate actions are brought, the two actions must be consolidated for trial. A final important point to remember—just because someone has the right to bring a wrongful death action does not mean that person has the right to share in the wrongful death damages. (This situation invariably arises where a decedent’s only wrongful death heirs are minor children.)

While the concept of medical malpractice normally connotes mistakes made by highly-trained medical professionals, the Pennsylvania Supreme Court has recently made clear that the failure to properly perform a normal, every day activity such as bathing a patient can be medical malpractice. In Strine v. Commonwealth of Pennsylvania, a four-member majority of the court has ruled that the act of bathing a totally-dependent-elderly patient is a medical service under Pennsylvania law, thus triggering insurance coverage from Pennsylvania’s former Medical Professional Catastrophe Loss Fund (CAT Fund).

Marie Barnes was a resident of Chester Care Health Center, a commonwealth-licensed nursing home. Ms. Barnes, who was seventy-five, suffered from severe dementia, and could not walk, speak, or feed herself. Because she was bedridden and suffered from bedsores, Ms. Barnes’s doctor ordered a daily whirlpool bath to treat the bedsores. However, Chester Care did not have a whirlpool bath; as a result, Ms. Barnes was bathed every day as opposed to the normal practice of bathing patients twice a week. In June of 1996, a certified nursing assistant employed by Chester Care drew a bath but failed to check the water temperature, which was 138 degrees. When the nursing assistant placed Ms. Barnes in the bath, she suffered severe burns and died three days later.

Chester Care agreed to settle a wrongful death action for $1.5 million. Under then existing Pennsylvania law, Chester Care’s first $200,000 of insurance coverage was provided by a private insurance company. The next $1 million of coverage was provided by the CAT Fund. (At present, the second level of coverage is now provided by the Medical Care Availability and Reduction of Error Fund, though the required amounts of primary coverage and MCARE coverage are now only $1 million, as opposed the previous $1.2 million.) However, the CAT Fund refused to pay its coverage, arguing that it insured only for “professional liability” “resulting from the furnishing of medical services which were or should have been provided,” and that bathing Ms. Barnes was not a “medical service.”

In an opinion authored by Justice Saylor (and joined by Justices Newman, Eakin and Baer), the Supreme Court rejected the CAT Fund’s argument, relying primarily on the fact that Ms. Barnes was totally dependent on others for all activities of daily living. The Court also noted that Ms. Barnes suffered from bedsores, which could be treated with daily baths. Furthermore, the court rejected the CAT Fund’s argument that no special skill other than a “strong back” was need to bathe Ms. Barnes, pointing out that the nursing assistant’s required formal training included instruction on bathing. As the court concluded, “Administering a bath under these circumstances . . . falls outside the scope of general custodial care which can be performed adequately by an untrained employee.” Chief Justice Cappy filed a dissenting opinion that Justice Castille joined.