Medical Malpractice: Statute of Limitations and the Discovery Rule

An explanation of the statute of limitations as applied to medical malpractice claims and how the discovery rule may expand the opportunity to file claims in certain cases.

Medical malpractice is a term that encompasses a wide range of cases including misdiagnosis, surgical errors, prescription errors, birth injury, hospital negligence, and emergency room negligence. There are numerous situations that may contribute to medical malpractice, making every case distinct.

It is common for a victim of malpractice to not become aware of an issue for weeks, months, or years after the initial negligent act. Therefore, when considering the statute of limitations to file a medical malpractice claim, standard rules can be somewhat restrictive. Attorney Joseph Marrone explains, “The statute of limitations to file a medical malpractice claim is generally two years. However, there is a discovery rule which allows a claim to be filed later, when the injured party knew or should have known about potential malpractice.”

For instance, a woman that undergoes surgery may have a seemingly successful procedure and leave the hospital. Months later she begins to feel ill or have unexplained health issues. As a result, the woman undergoes a series of recommended testing and ultimately learns that a surgical instrument was left inside of her during the previous surgery. In cases such as these, the discovery rule offers injured parties a sort of extension on filing a claim. The discovery rule allows the statute of limitations to begin when the Plaintiff knew or should have known about potential malpractice. Therefore, the discovery rule may apply to the described case, with the statute of limitations beginning once the woman learned of the object left inside of her from a previous surgery. This would enable counsel to have an adequate amount of time to complete discovery and file a claim on her behalf without failing to meet the standard two year statute of limitations.

It is clear that the discovery rule, though not applicable in some jurisdictions, provides many more the opportunity to file medical malpractice claims than if only the statute of limitations applied.

Traumatic Brain Injury (TBI) in Football

An overview of traumatic brain injury and football as a cause for such injuries. We also discuss the recent lawsuits filed against the National Football League by retired players suffering from the effects of repeated brain injury throughout their careers.

The sport of football has become one of, if not, the most popular sport in the United States today. However, this full-contact sport puts players at risk for serious injury each time they step onto the field, especially at the college and professional levels. In recent years, the sport has received negative attention specifically surrounding the issue of traumatic brain injury (TBI). In this article, we discuss the basics of TBI and why these types of injuries are so frequently suffered in football. We also offer an overview of the lawsuit regarding brain injury which was brought against the NFL by retired players.

What is Traumatic Brain Injury?

Traumatic brain injury is defined by the industry as a blow or jolt to the head, or a penetrating head injury that disrupts the normal function of the brain. TBI ranges from mild to severe with effects varying from concussion to long periods of unconsciousness or amnesia.

The Relationship between TBI and Football

Recent studies show that traumatic brain injury is the leading cause of death in regard to sports-related injuries.
In football, TBI is usually caused when one player causes a blow or jolt to the head of another player, typically during a tackle.

Most commonly, a player will suffer a brain injury in the form of a concussion. A concussion is a mild form of TBI with a strong recovery rate, usually ranging from 1-2 weeks after the injury has occurred. However, once one concussion is suffered, the player becomes more prone to future concussions. Despite the strong recovery rate of concussions, the same player receiving multiple brain injuries can lead to drastic long-term effects, such as long-term memory loss, brain damage and other psychiatric disorders.

There are no standard guidelines as to when a player suffering from brain injury should stop playing football. However, a player receiving three or more concussions in the same season should consider taking a fairly long break from football in order to rehabilitate.

Lawsuits against the National Football League

The first lawsuit against the National Football League, Inc. was filed in August 2011 naming as Plaintiffs seven former professional players and their wives. The complaint references the NFL’s denial of any knowledge linking brain injury and its effects to its standard practices and policies. The complaint states:

“The defendant and its designated representatives have continuously and vehemently denied that it knew, should have known, or believed that there is any relationship between NFL players suffering concussions while playing, the NFL policies regarding tackling methodology or the NFL policies about return to play and long-term problems such as headaches, dizziness, dementia and/or Alzheimer’s disease that many retired players have experienced.”

Plaintiffs include former Atlanta Falcons defensive back star, Charles Ray Easterling, who committed suicide in 2012 after struggling with career-related dementia and a long life of depression; and former Chicago Bears quarterback, Jim McMahon, winner of the 1986 Super Bowl, who has been diagnosed with dementia.

A unified class action lawsuit was filed in Philadelphia in 2012 in the United States District Court, Eastern District of Pennsylvania which named more than 4,500 retired NFL players as Plaintiffs. This lawsuit referenced similar claims as the originally filed lawsuit regarding traumatic brain injury and the NFL’s practices.

In 2013, the NFL proposed a $765 million settlement deal which attempted to resolve the matter without requiring the organization to admit negligence. This agreement outlined the creation of various funds which would offer aid and financial compensation to future and currently retired NFL players; authorized representatives of former NFL players deceased or legally incapacitated or incompetent; and close family members of retired NFL players. The settlement was denied by United States District Judge Anita B. Brody in January 2014, with concern that the agreement was insufficient and may limit future players with a qualifying diagnosis from receiving proper aid. This issue is ongoing and has yet to reach an end result.

UPDATE: In April 2015, Judge Brody approved a final settlement for the NFL concussion lawsuit. Read more

Taking Action and Preventative Measures

Since the increase in knowledge and rise in reports of traumatic brain injuries in football, the NFL has taken preemptive measures to prevent this issue. Helmets and mouth guards have been introduced as necessary protective gear to help protect players. In 2007, the NFL introduced new concussion guidelines, which included that a player must adhere to professional medical advice regarding whether they are able to return to the football field or face consequences. Also, in 2010, NFL Commissioner Goodell issued a memo to all 32 teams which explained that possible suspensions would be issued to offenders who violated the “hit on a defenseless player” rule.

Football leagues, ranging in caliber from pee-wee to professional, have taken preventative and progressive measures to provide safety to their players throughout the years and continue to make improvements. Though the sport has made strides in its awareness of and action against traumatic brain injury, the NFL, in particular, still faces the issue of traumatic brain damage to current and retired players.

Additional Sources:

https://www.aans.org/patient%20information/conditions%20and%20treatments/sports-related%20head%20injury.aspx

https://www.nfl.com/news/story/0ap1000000235494/article/nfl-explayers-agree-to-765m-settlement-in-concussions-suit

https://www.nejm.org/doi/full/10.1056/NEJMp1007051

https://www.cnn.com/2013/08/30/us/nfl-concussions-fast-facts/

5 Things to Be Cautious of at the Gym

One of the most popular New Year’s resolutions is to get back in shape during the New Year. After January 1st, gyms and fitness facilities are usually packed with people trying to shed those holiday pounds. Getting fit is great, but try not to get burned in the process.

Here are 5 things to be cautious of when getting back to the gym this year:

1. Contracts – read before you sign!

It’s hard to believe that the winter season is already upon us. Before long, the festivities will be behind us as we welcome a new year full of endless opportunities. If you are traveling for the holiday season, it’s critical that you do what you can to stay safe. The rate of motor vehicle accidents tends to increase during the holiday season as a result of out-of-town commuters, cognitive distractions, poor weather conditions, and drunk driving. Here are some ways you can stay safe on your trip ahead:

Joining a gym? It is common to want to get in shape at the start of a new year. When joining a gym, you typically meet with a representative of the facility who helps sign you up for a membership. This process tends to involve the completion of paperwork, use of personal information, and payment of initial membership fees. Though much of this process is standard, do not be fooled. Be sure to familiarize yourself with all of the facility’s policies, terms and conditions, and/or liability waiver forms. Read over the contract carefully before signing or making any payments.

What to look for in your contract:

Attorney Brian Marchese recommends a few things to look into prior to signing a contract:

Membership termination details: Does your contact contain any conditions regarding the termination of your membership? Are you subject to any fees?
If you received discounted pricing at the point of purchase, is the same pricing valid for future payments or will standard pricing apply?

2. Faulty equipment

Exercise Equipment Injury Lawyers Pittsburgh PA

Accessible exercise equipment is one of the many incentives for people to join a gym or training facility. However, much of the equipment provided can be dangerous if it is faulty or not used properly.

Exercise equipment ranges from heavy weights to complicated machines. It is easy to see that if such equipment is defective or damaged, it can be dangerous for the user. It is the facility’s responsibility to ensure that all equipment functions properly and is safe to use. To ensure your safety, ask important questions regarding the age of the equipment and how often they receive maintenance. Old or worn out equipment has a higher likelihood of malfunctioning or breaking. If you sense that a machine is not working properly and may be dangerous, notify a facility representative as soon as possible.

It is also important to know how to properly use a facility’s equipment prior to incorporating it into your workout. Improper use of exercise equipment can cause minor to serious injury which could have otherwise been prevented. Most facilities employ experienced staff that can help teach you everything you need to know about properly using their machines and other exercise equipment.

3. Unqualified Personal Trainers

A personal trainer is a great way to kick start an exercise regimen or push you to get in better shape. But, similarly to the improper use of equipment, an unqualified trainer may do more harm than good. Teaching improper form or technique can cause major issues and result in injury. Prior to selecting a personal trainer, make sure he or she has received all required certifications and has experience in the field.

It is important to also keep in mind that while working with a personal trainer, he or she cannot read your mind. If you have pre-existing health issues or injuries, share those details with your trainer. A personal trainer should be able to customize a workout regimen to fit your needs without causing any major issues to your health.

4. Infections

Medical Malpractice Attorney Pittsburgh PA

Germs and bacteria are commonly found in warm, damp environments, making public gyms and exercise facilities the perfect place to thrive. Swimming pools, saunas, locker rooms, exercise equipment, even the gym floor can be risky areas to develop an infection, fungus, or virus. So how do you avoid an infection if bacteria seems to be everywhere? Sanitizer is provided at most gyms, use it! Wipe down equipment before and after use. If you use a locker room and/or public shower, invest in a pair of shower shoes so that you do not expose your bare feet to the floor.

5. Lock it up!

If you intend to bring a gym bag and/or other personal belongings to the gym, lock them up! Unlocked items are at risk of theft and exercise facilities are not typically liable for stolen items. Locks that require a code are often the best choice as they provide additional security.

Defective and Dangerous Children’s Toys

This holiday season, millions of toys were unwrapped by children eager to play with them. Defects in the manufacturing, design, and warning labels in these toys, however, may cause injuries. This article is an introduction to product liability and an overview of the Consumer Product Safety Commission’s report on defective and dangerous children’s toys.

Product Liability: The Basics

Manufacturers and sellers of goods can be held liable to consumers for any physical harm or property damage caused by their products. These companies owe a duty to their consumers and injured consumers may hold them liable for the injuries their products caused. There are three types of defects at the center of product liability claims:

Manufacturing Defects: A product has a manufacturing defect when it does not meet the manufacturer’s own design plan for the product. While the design for the product may not be defective, the product was incorrectly made, making it unreasonably dangerous.
Design Defects: A product with a design defect may have been manufactured according to the producer’s plan but such the plan itself was faulty. Therefore, the risk of injury impacts all products produced using the same design.
Warning Defects: A warning defect is a failure to warn the user of the potential dangers of using the product. Even if the manufacturer, or seller of goods, includes a warning label with the product, the warning label itself may be faulty.

Product liability actions concerning children’s toys have involved each type of defect listed above. Each of these defects has the potential to injure the user of the products.

Consumer Product Safety Commission

The United States Consumer Product Safety Commission (CPSC) is the agency responsible for making regulations for the sale and manufacture of consumer products on behalf of the federal government. This independent agency is tasked with protecting the public from injuries caused by products ranging from children’s toys to household chemicals.

Each year, the CPSC releases a report that describes toy-related injuries in the United States. In their most recent report, released November 2014, the CPSC estimated that there were over 250,000 toy-related injuries treated in emergency rooms during the previous year. Most of these injuries involved cuts, bruises, or scratches mainly to the head and face area. In addition, about 69% of the children injured were twelve years-old or younger.

The toys associated with the largest number of injuries treated in emergency rooms, according to the CPSC, were non-motorized scooters. These toys, along with other “riding toys” made up the largest number of incidents during the year. The next category with a large percentage of toy-related injuries were “toy balls”. Finally, “toy vehicles” also caused a significant number of injuries to children.

Product Recalls

The manufacturers and sellers of these dangerous and/or defective toys may be held liable for these injuries. These producers may recognize the defects in their products by issuing a product recall. Product recalls allow consumers to return toys with known defects back to the manufacturers. In issuing a product recall, the manufacturer may reduce the extent of its liability in making the faulty product.

In addition to publishing an annual report on children’s toys, the CPSC constantly updates its website with toys containing known defects. These include toys that have been recalled by the manufacturer. Toys sold during this past holiday season that have since been recalled include products manufactured and sold by: Tyco, Graco and Toys R Us. More information regarding product recalls can be accessed by the CPSC website: www.cpsc.gov.

Source: https://www.cpsc.gov/Global/Research-and-Statistics/Injury-Statistics/Toys/ToyReport2013.pdf

George Tsoflias

J.D. Candidate, Class of 2016

Temple University Beasley School of Law

How Driverless Cars Could Change the Legal Landscape

The Wall Street Journal law blog posted “Personal Injury Lawyer Says Google’s Driverless Car Bad for Business.” In this article, New York-based personal injury attorney and legal blogger, Eric Turkewitz, shares his prediction that the introduction of driverless cars will significantly reduce the need for his services. In May 2014, the New York Times’ blog, The Upshot, ignited a similar conversation regarding the future of driverless cars.

Driverless Car Accident Lawyer Pittsburgh PA

Companies like Google and BMW are in the process of researching and developing driverless cars. Though not quite ready to be publicly released for sale, that day is rapidly approaching, possibly within the next five years. With that in mind, we need to begin focusing our attention on how this innovation will change the way we do things. At the Marrone Law Firm, LLC, we discussed Turkewitz’s argument and some of the implications that the introduction of driverless cars will have on the quality of travel, the legal services we offer, lawmakers and current insurance policies.

“Car accidents are the number one cause of death. Some will argue that driverless cars will significantly alter that statistic,” states Attorney Christopher Marrone. The Upshot mentions that insurance companies may begin to offer incentives for using driverless cars. Liability has the potential to greatly decrease because driverless cars will virtually eliminate human error. Turkewitz suggests that this decrease in human error will greatly reduce car accidents, greatly reducing the need for his services and others like it. We agree that this is a distinct possibility.

Despite the strong likelihood that driverless cars will greatly improve the quality of travel, Attorney Christopher Marrone expressed concern for the transition period before driverless cars are universally adopted. “If both driverless and traditional cars are on the road at the same time and a human error is made, will a driverless car be able to respond to that error and avoid an accident?” asks Marrone. On one hand, it may seem that driverless cars may eliminate much of auto liability, but on the other hand, they have opened the doors to countless other questions and causes for concern and discussion.

There is no question that this innovation will change the way personal injury attorneys do business. Instead, the question becomes “how” will our business change? While car accidents due to negligence may be minimized, lawyers will need to revisit the products liability chapter of their law books. Attorney Joseph Marrone believes that the nature of car accident cases will shift almost entirely from matters of negligence to more serious product liability matters. Marrone adds, “We will see more and more lawsuits filed against big manufacturing companies because now accidents will result from something malfunctioning within the car itself rather than the negligence of the driver.” Rather than needing to prove the negligence of drivers on the road, which can be a difficult task, attorneys will turn to investigators and experts to effectively determine if a product defect was a factor in the cause of an accident.

The introduction of driverless cars will impact how we approach accident lawsuits, and will fundamentally alter the way we do things. As previously mentioned, insurance policies may change drastically, and safety issues may shift from human error to larger scale manufacturing issues. While we agree with Turkewitz that our business will be impacted by driverless cars, we are still left with many unanswered questions regarding “how” and “at what scale”.

Source:

https://www.nytimes.com/2014/05/14/upshot/when-driverless-cars-break-the-law.html?_r=0

https://blogs.wsj.com/law/2014/12/26/personal-injury-lawyer-says-googles-driverless-car-bad-for-business/

Keurig Recalls 7 Million Machines for Burn Risks

Keurig Green Mountain Inc. announced recalls of 7 million single-cup coffee makers on Tuesday, December 23, 2014. The recall follows numerous reports of consumers suffering burn injuries from the defective product. The manufacturer is offering free repair kits to anyone with the recalled machine.

Product manufacturers owe a duty of care to consumers who will use the products that they manufacture and market. If you were injured through use of any dangerous or defective product the manufacturer may be held liable for the damages. Keurig Green Mountain Inc., the Vermont based coffee maker manufacturer, announced a recall of over 7 million machines due to their potential to overheat liquid and burn users.

On Tuesday, December 23, The Associated Press reported, “The recall is for Keurig’s Mini Plus brewers that were made between 2009 and 2014. Keurig received about 200 reports of hot liquid spraying from the brewer, including 90 reports of burn-related injuries.” Users are encouraged to call the company to receive a free repair kit and stay an arms length away from the machine until then.

If you or a loved one were seriously burned by this product and may suffer permanent damage, it is important to consult not only a doctor, but also an attorney that specializes in products liability matters. Learn more about products liability matters here.

Snow and Ice Removal Laws for PA and NJ Property Owners

What is a Pennsylvania or New Jersey property owner’s obligation to remove snow and ice from their property during the winter months? If an injury occurs on someone else’s property because the owner failed to clear snow or ice, is the owner liable for the damages? We break down the New Jersey and Pennsylvania laws so that property owners and patrons may have a better understanding of their situation in the event of an accident this season.

It’s that time of the year again when winter storms start to hit the Tri-state area and leave significant amounts of snow and ice on the pavements of many property owners throughout Pennsylvania and New Jersey. Snow and ice conditions are one of the leading causes of slip and fall injuries during the winter. Property owners and those who are injured due to slipping on ice and snow should be aware of the law that exists in both Pennsylvania and New Jersey. Generally speaking, the first thing to determine is whether the property owner has a duty. Once it is determined that the property owner does have a duty to clear the sidewalk pertaining to his/her property, the next thing to establish is whether the property owner exercised the proper care in clearing the snow and ice.

New Jersey Law

According to New Jersey law, in order to establish that you have a case for liability in a slip and fall case due to snow and ice, only one of the following three things must be shown:

The property owner had a legal duty to remove or warn about the risk of snow and ice on the sidewalk, and in failing to carry out that duty, caused the dangerous condition, or
The property owner knew about the dangerous condition and did nothing to remove it, or
The property owner should have known about the dangerous condition because it would have been obvious to a reasonable person who would have corrected the condition that caused the accident.

Duty of Property Owners:

Under New Jersey law, a residential property, such as a single family home, is almost never liable for these types of injuries because there is no duty to remove or warn about the risk of ice or snow on the sidewalk that has been caused naturally. However, a residential property owner may be held liable where the owner made the dangerous condition worse.

On the other hand, commercial enterprises and multiple dwellings, such as apartments and condo complexes, do not enjoy this same “no duty” rule. The general rule in New Jersey is that it must be shown that the property owner knew or at least should have known about the dangerous condition, and a failure to act on that dangerous condition caused an unreasonable risk of harm. If the dangerous condition was foreseeable because of the nature of the property owner’s business, then it doesn’t have to be shown that the property owner knew or should have known. For example, a commercial enterprise, such as a one of the shopping malls in New Jersey, invites people onto their property and therefore bears the duty of exercising ordinary and reasonable care in keeping the area safe.

Pennsylvania Law

Under Pennsylvania law, in order to establish a case for slip and fall injury due to snow or ice, the injured person must show that the property owner knew or should have known about the dangerous condition, and failed to exercise reasonable care in making the condition safe or providing warnings about the condition.

Duty of Property Owners:

In accordance with Pennsylvania law, property owners have up until 24 hours (or a reasonable amount of time) after the snow stops falling to start to make the dangerous condition safe or provide a warning. These types of cases require evidence that the property owner had reasonable time to be able to correct the dangerous condition caused by the snow and ice. This requirement exists because it would place an impossible burden on property owners to keep their premises cleared at all times, even while the snow is still falling and accumulating.

Property owners are required to exercise a duty of care when the accumulation reaches a stage in which hills and ridges of snow and ice are formed. This is known in Pennsylvania as the Hills and Ridges Doctrine, which has three elements that must be shown:

The snow and ice accumulated so much that it unreasonably obstructed travel
The property owner knew or should have known about the conditions
The snow and ice is what caused the plaintiff to slip and fall

This doctrine does not apply to a situation where the fall was caused by a property owner’s neglect, such as a clogged storm drain or a defective gutter.

If you are a business or store owner that opens your business to the public, you have a duty to keep your premises in a reasonably safe condition by inspecting your premises and looking for obvious and hidden defects. This inspection ranges from the sidewalks to the parking lots.

Robert Flacco

Marrone Law Firm, LLC

Law Clerk

Why Does Thanksgiving Have a Dangerous Reputation?

Thanksgiving is consistently listed as one of the year’s most dangerous holidays – why? A major increase of cars on the road, alcohol, and drowsy drivers all have something to do with it.

With Thanksgiving only a week away, you are most likely in the process of finalizing your holiday plans. Many of you have plans that involve some form of travel. For years Thanksgiving has been consistently rated one of the most dangerous holidays for travel. Why is this holiday considered particularly dangerous? What does this mean for your plans next week? If you are in an accident and become injured, what should you do? These are all questions we plan to answer so you and your family may be a little more prepared next week.

Whether you are having dinner a few miles down the road or you are spending a couple of days with family out of state, you will probably travel by car. In fact, the overwhelming majority of Americans choose to drive to their Thanksgiving destinations – an estimated 90% to be more specific. Over the next week, this major influx of vehicles on the road will present some issues.

For starters, as the volume of cars on the road increases, the probability of accidents and subsequent injury or fatality also increases. Yes, the sheer number of cars on the road will increase your likelihood of being involved in an accident. This does not even account for other risk factors, such as those who will drive drowsy or under the influence.

After you eat your turkey dinner, you may begin to experience the effects of tryptophan and become sleepy – or you may simply be exhausted from celebrating. Drowsy driving is particularly dangerous. Overly-tired drivers can be less attentive, react more slowly, and have the potential to make impaired decisions. A report by the CDC states, “Cognitive impairment after approximately 18 hours awake is similar to that of someone with a blood alcohol content (BAC) of 0.05%.”

Many Thanksgiving celebrations include alcohol. For some, the celebration begins with family and friends at a bar or restaurant on the eve of Thanksgiving. For others, this may include a few drinks while watching football on Thursday or at dinner on Thursday night. In 2009, an article by Forbes referenced a report by the National Highway Traffic Safety Administration which reported nearly half of all traffic fatalities on Thanksgiving involved alcohol.

Upon considering factors such as drunk driving and drowsy driving, in conjunction with an abnormally high volume of cars on the road, it is not difficult to understand why Thanksgiving is listed as one of the year’s most dangerous holidays. Last year, USA Today listed Thanksgiving as the third most dangerous holiday, followed by Memorial Day and Independence Day. You can read their complete synopsis of accident statistics from recent Thanksgiving holidays below. USA Today’s full list of most dangerous holidays can be found here.

“Over the six-year period between 2006 and 2011, traffic deaths around Thanksgiving accounted for nearly 15% of all vehicle-related fatalities in November. Between 2001 and 2007, driving fatalities during the holiday were in excess of 500 each year, peaking at 623 in 2006. Over the last five years, however, deaths have not exceeded 500. In 2011, just 375 people died on the road over the holiday, the fewest deaths since at least 1995. This year, the NSC estimates deaths rose to 436, with an additional 46,600 nonfatal injuries, which include all unintentional injuries that require medical consultation, over the travel period running from Wednesday evening through Sunday.”

Nothing can ruin a holiday more than an accident or serious injury. If you are in a car accident, and you or a loved one suffered a resulting injury, there are three important calls you should make.

Call the police. The officer will write a police report documenting the incident and any necessary details. Collect any insurance information from the other parties involved. Take pictures of the scene, if possible.
Call a doctor or visit a hospital to get an examination and assessment of any injuries. Take photos to document those injuries.
Call an attorney and schedule a consultation. An accident attorney will be able to talk with you about the situation in person or over the phone. This conversation will provide you with information regarding the potential of your case and valuable next steps when moving forward.

Throughout this next week, keep in mind that you are at a greater risk of an accident simply by being on the road. Remember to monitor your alcohol consumption if you plan to get behind the wheel, and do not drive if you are especially tired. Most importantly, travel safely and enjoy the Thanksgiving holiday with your loved ones!

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Barring Informed Consent in PA Medical Malpractice Cases

Today, The Legal Intelligencer published, “Pa. Justices Urged to Bar Informed Consent in Med Mal Cases.” When a patient agrees to undergo a medical procedure, it is a standard practice for the doctor or medical professional to discuss any risks with the patient and/or have the patient sign a consent form. Informed consent describes this practice – permission granted in the knowledge of the possible consequences, typically that which is given by a patient to a doctor for treatment with full knowledge of the possible risks and benefits. At times, informed consent is used by the defense in medical malpractice cases to insert the notion that the victim had knowledge of any risks prior to the incident. However, PA justices are now being asked to bar informed consent in medical malpractice cases that are based on negligence. This decision will permanently alter how medical malpractice cases are handled in Pennsylvania.

The Marrone Law Firm, LLC offers commentary on the significance of this issue, what it means, and how it applies to victims of medical malpractice in Pennsylvania:

This issue is vitally important to victims of medical malpractice in Pennsylvania. The state Supreme Court is weighing a challenge to the Superior Court’s decision to bar evidence of the patient’s informed consent in a case where the patient is only alleging negligence. The distinction is critical. Negligence is the doctor’s failure to perform consistent with the standard of care. Lack of informed consent is actually a claim for battery, alleging that the plaintiff had insufficient basis on which to decide whether or not to have the procedure in the first place. Doctors who have performed negligently often defend themselves by stating that the plaintiff consented to the procedure. But the law is well settled that a patient never, under any circumstances, consents to a doctor’s negligence. Negligent doctors should not be allowed to mislead a jury into thinking that, because a potential negative outcome is discussed prior to surgery, or printed on a form signed by the patient, there is automatically zero negligence when that outcome occurs. The question is not what was printed on the form or discussed prior to the procedure, but whether the doctor’s performance of the procedure fell outside of the standard of care. The patient’s consent has nothing to do with that issue and should not be admitted into evidence when a case is only based on negligence.

Penn State Student Victim of Lab Explosion

A Penn State University student suffered burns from a small explosion that occurred in a campus laboratory on Wednesday evening.

The Associated Press reported that the student was doing a tissue culture in the Agricultural and Biological Engineering Building around 5:30pm last night, October 15th. A tissue culture is a method of biological research that involves moving a portion of animal or plant tissue to an artificial environment in which it can continue to grow and be studied. The explosion occurred in an exhaust hood of the lab. The incident is currently being investigated by Penn State’s Department of Environmental Health and Safety. A representative from the Alpha Fire Company told reporters that the use of alcohol as a form of sterilization is being investigated as a potential cause.

The student’s condition was not available Thursday morning. The victim may have reason to file a civil lawsuit if sterilization methods were, in fact, the cause of the explosion.

Many accidents appear to be just that, accidents. However, it is important to look in depth at every cause for injury. Once a situation is thoroughly examined, it can be determined if the accident was a result of some form of negligence. In the case of the PSU student, if sterilization methods are determined as the cause of the explosion, the incident may have been avoided if alcohol was not used. Perhaps, those working for and in the laboratory had the knowledge that alcohol, in combination with other substances, may become reactive. If this proves to be true, the victim of the explosion may have a case.

Source
https://www.philly.com/philly/education/20141016_ap_034003eaf50e481fbf672802a97d73c9.html

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