Pennsylvania Injury Law Report : Pennsylvania Personal Injury Lawyer & Attorney : Stuart Carpey Law Firm : Auto Accidents & Product Liability : Pennsylvania Injury Law Report

From time to time I have guest articles on my blog from other lawyers around the country. The following article refers to North Carolina law, not Pennsylvania. Despite the different jurisdictions, this article still provides important information pertaining to texting and driving.

Worker’s Comp Insurers and Employers are beginning to take notice of a disturbing trend in society today… more and more work-related fatalities that are caused by, you guessed it, texting while driving.  This recent article by Ira Leesfield cites a statistic from the National Safety Council that an estimated 200,000 traffic accidents per year are caused by drivers who have been texting.  Also cited in the article was a study by Car & Driver Magazine which “found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers.”

How does this impact Worker’s Compensation Insurance?  Many employers provide their employees with mobile devices, and require continued contact with them through email or texting – even while those employees are on the roads.  The problem with this, and the reason that employers and the insurance companies are taking notice, is that when an employee is involved in a traffic accident while texting, not only could the insurance company/employer be on the hook for paying the workers compensation claim, but they could also be responsible for paying the claim to the victim of the accident under a theory of respondeat superior or direct negligence.  And because more and more accidents are caused by texting while driving, that means that the insurance companies are going to have to pay out more and more money for these workers compensation and other claims.

A prudent employer would be smart to adopt written policies banning texting while driving for all employees, and make sure that these policies are frequently and adequately communicate  to employees.  The problem arises when an employee is sent out for an isolated errand – but they don’t normally drive for that employer. If the errand was for company business, than the employer could be liable under the Worker’s Comp statute.  (I’ve frequently thought about what might happen if my legal assistant was injured in an accident while driving to the courthouse for a last minute filing or to pick up office supplies.)

Since North Carolina has a “no-fault” workers comp system, an accident caused by an employee who was texting while driving would still generally be compensable – even though it may have been the employee’s fault.  Ultimately, the courts and/or legislature will decide whether employers are responsible to pay out workers compensation claims for an employee that was injured in a traffic accident, even though they may have been texting at the time of the accident.

In the meantime, I would advise anyone who drives for a living to shut the phone off and pay attention to the road.  If your employer requires you to text and drive at the same time, then you may want to consider whether this is someone you want to work for.  Whether the employer likes it or not, your safety is more important than productivity.

James W. Hart is a North Carolina Workers Comp Lawyer, who restricts his practice to Workers Compensation and Collaborative Divorce. The Hart Law Firm P.A. is based in Raleigh, North Carolina.  If you have been injured at work in North Carolina, call 919.460.5422 for a free workers comp consultation.

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This is a guest blog post from my colleague Shelly Leeke, Esquire, who practices personal injury law in Goose Creek, South Carolina. She can be reached at 888-690-0221.

Several factors must be considered when determining whether a defective airbag lawsuit should be pursued.

Here are four considerations in evaluating a defective airbag case:

1.    Should the airbag have deployed in the crash?
2.    Why didn't the airbag deploy?
3.    Could the injuries have been lessened or avoided altogether if the airbag had worked?
4.    Are the injuries caused by the defective airbag serious enough or life threatening enough to be worth   the cost of pursuing a defective airbag lawsuit?

1.    Should the airbag have deployed in the crash?

Before even considering filing a product liability lawsuit for a defective airbag, we must look at the facts and circumstances surrounding the crash and determine if there was an airbag malfunction. In other words, should the airbag have deployed in the car accident? Many times, an investigator may be used to gather the evidence to make this determination. One important factor is the speed the vehicle was traveling at the time of the impact. Airbags have a threshold speed, usually around 14 mph, and will not deploy unless the vehicle was traveling at or beyond the threshold speed. The type of impact is another important factor. Frontal airbags are designed to deploy in frontal impact crashes. If the impact was to the front of the vehicle, the airbag is designed to deploy if the vehicle was traveling at the threshold speed. But, if the crash was caused by a rear end impact, the airbag may not have deployed because the airbag was not designed to deploy in that type of accident. Many vehicles now come equipped with side airbags, so an analysis of where airbags are located in the vehicle and the type of crash that occurred (rear end collision, t-bone, head-on collision, etc.) may be necessary to determine whether or not properly functioning airbags would have deployed in the car accident.

2.    Why didn't the airbag deploy?

If the airbag should have deployed, but did not deploy, it is necessary to be able to prove a defect in the airbag prevented it from working properly. To prove the airbag was defective, experts must give expert engineering testimony to explain why the airbag was defective. Obtaining the best experts to give testimony in order to prove an airbag defect case is very expensive. This expense only makes sense if the person was severely injured because the airbag did not work.

3.    Could the injuries have been lessened or avoided altogether if the airbag had worked?

Could the injuries or death have been avoided if the airbag had worked properly? To prove that the person was injured because of the defective airbag, medical experts must be obtained to provide testimony that the person's injuries or death could have been avoided if the airbag had worked properly.

4.    Are the injuries caused by the defective airbag serious enough or life threatening enough to be worth   the cost of pursuing a defective airbag lawsuit?

As you can see, airbag cases are complex, and costly to pursue. That is why even if you have a valid defective airbag claim, it still may not be in your best interest to pursue a defective airbag lawsuit. By this I mean, unless the injuries and damages the person suffered because of the defective airbag are extensive and very serious in nature, the cost of litigating and proving the airbag case could be more than what you would recover from a settlement or jury verdict. It just does not make sense to file a defective airbag lawsuit unless there is a good chance of recovering more for the client than the costs of proving the case.  However, if the person's injuries are very serious or if the person was killed in the accident, a defective airbag case should be considered.  Broken bones, head trauma, brain injury, surgery, life-threatening injuries, and many other debilitating injuries are examples of injuries that are serious or catastrophic enough to result in a settlement or verdict that would warrant the cost of pursuing an airbag case. 

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In early October, Governor Ed Rendell  highlighted the improvements in Pennsylvania's medical malpractice system. A looming issue, however, is whether he will agree to extend the Mcare fund.

In Pennsylvania, doctors and hospitals are required to carry $1 million in medical malpractice insurance. The first $500,000 is through private insurers, while Mcare provides an additional $500,000.

The Pennsylvania House proposed legislation to postpone the phase-out of the Mcare Fund for seven years. The bill was approved by the Senate, and now just requires approval from Rendell. Rendell has expressed his support for the bill, but wants to review the bill’s provisions. The extension of the Mcare Fund has been endorsed by  professional groups, including the Pennsylvania Orthopedic Society and the Pennsylvania Association for Justice, two organizations that are rarely on the same page concerning political issues.

The Mcare Fund was established in 2002 as a way to combat the high medical malpractice premiums charged by insurance companies and paid by physicians and hospitals. The medical malpractice system in Pennsylvania has undergone various changes since the Mcare Fund was put into place in 2002. In his press release, Rendell pointed to an almost 20% decline in insurance rates for the primary level of coverage in the private market. Additionally, there is more competition in the private insurance market with more than 21 new carriers. As a result, more and more doctors and hospitals have an adequate amount of medical malpractice insurance and they are paying less for it.

In 2009, Rendell stated that he would not seek to renew the Mcare Fund and that the reform of medical malpractice was complete. He did not see any need for further improvements. Despite this declaration, the Mcare Fund is likely to be extended. Rendell is said to have some reservations on certain language that returns unspent money to hospitals instead of rolling it over into the next year's fund.  It is clear, however, based on the changes to the system, including the requirement of a certificate of merit and stricter venue rules, that Pennsylvania has succeeded in driving down the rates that insurers have charged doctors and hospitals for malpractice coverage.

Update: Governor Rendell , in fact, on October 22, 2010, vetoed the bill which would have extended the Mcare Fund.

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Republican candidate for governor,and present Attorney General,  Tom Corbett, has been campaigning state-wide, attempting to explain his plan for the “revitalization of Pennsylvania’s economy”. His first order of business is to try and get the Pennsylvania legislature to pass the “Fair Share Act,” a law vetoed by current Governor Rendell  on March 24, 2006.  (A later version was found unconstitutional by the Pennsylvania Supreme Court). Corbett has said that he would sign such a bill.

While “legal reform” is always a flashy campaign platform, it is important for voters and political commentators to understand the consequences associated with passing legislation such as the Fair Share Act. Anyone, no matter what their political affiliation, can be involved in an accident and need compensation for their losses. If passed, the Fair Share Act would limit every accident victim’s ability to be compensated after an injury.

Currently, in civil cases, Pennsylvania’s procedural rules of joint and several liability hold that in a multiple defendant case,  where more than one defendant is found liable, the plaintiff can recover all, or part of, his or her judgment from any liable defendant, even if  a defendant is minimally liable. This policy is designed to protect plaintiffs by ensuring that they will be able to recover their jury verdict and be fully compensated for their injuries.

The Fair Share Act (as previously proposed) would replace joint and several liability in cases where there is more than one liable defendant. However, under the Fair Share Act, if a defendant is found less than 60% responsible for the plaintiff’s damages, that defendant would be required to pay damages only in the amount equal to their percentage of responsibility as determined by a jury.

Obviously under the present system of joint and several liability, the Pennsylvania legislature and courts have placed the plaintiff’s rights higher than those of the defendants in civil cases involving multiple defendants. By naming the proposed legislation the “Fair Share Act,” proponents are espousing that defendants in civil cases are presently paying more than their fair share in cases where there is more than one defendant.

Yet, if the Fair Share Act is resurrected, it would have a devastating impact on injured plaintiffs and their ability to collect damages. If, for instance, in a typical car accident case involving multiple defendants, where an uninsured party is found responsible for most of the damage award and that defendant cannot pay for lack of insurance,  the plaintiff would no longer be able to collect monetary damages from an insured defendant if that defendant is less that 60% at fault. It is easy to argue that this may be fair to defendants. But where does that leave the injured victim who through no fault of his own sustained personal injuries, wage loss and incurred medical bills? The Fair Share Act would simply leave many plaintiffs vulnerable and would expose Pennsylvania accident victims to the very real possibility of being left under compensated. We would see many situations where plaintiffs “win their case” yet remain responsible for payment of their own medical bills which would otherwise, under the present rule of joint and several liability, be the defendants’ responsibility to pay. We would see many situations where the injured plaintiff loses time from work due to someone else’s negligence, yet never receive fair payment for his or her wage loss from the party that caused the plaintiff’s injuries which kept the plaintiff from working.

The Fair Share Act has nothing to do with “excessive or frivolous lawsuits” as Corbett states on his website. On the contrary, the abolition of joint and several liability in Pennsylvania and replacing that with some version of the Fair Share Act has everything to do with leaving Pennsylvania accident victims vulnerable to the interests of insurance companies who would be in a much better position at trial. The Fair Share Act would allow insurance companies with policy holders found to be less than 60% liable for damages not responsible for payment of the plaintiff's verdict. Leaving plaintiffs under compensated has never been the policy of the Pennsylvania courts and legislature, and Corbett's proposed change is by definition anti-consumer and anti-accident victim.

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If the Philadelphia Police arrest or detain the wrong person, does it automatically give rise to a civil rights lawsuit? Definitely not. Nevertheless, here's an interesting article about one of our civil rights cases that was published yesterday in the Philadelphia Inquirer, where the police officers involved pushed the envelope of what's acceptable in the apprehension of a suspect. In this case the officers involved had no probable cause for the arrest, and we believe the evidence will be quite clear on that point. The link to the article is as follows:

http://www.philly.com/inquirer/home_region/20101018_Earlier_complaint_against_2_officers.html

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The healing process from an injury following an accident can sometimes be quite long, depending on the extent of the injury. But is there a typical period of time that an accident victim can expect to receive medical care?  

Well, according to Wes Welker, wide receiver for the New England Patriots, the period of time required to heal is substantially less than what your doctors might say. In January 2010 during a playoff game against the Houston Texans, he tore his left anterior cruciate ligament (ACL) and his left medial collateral ligament (MCL).  It would be a minimum of a year before he was healed. There was no chance of his playing the 2010-2011 season. Then he showed up for training camp a mere eight months post surgery.  Now he's back full tilt as a starter in September. As stated by Dan Wetzel of Yahoo Sports:

“Welker’s story as an undersized, unwanted everyman who became the most prolific pass-catcher in the NFL was already bordering on saccharine Disney sports-flick levels. Then came Sunday, [September 14, 2010] when he shaved a remarkable three-plus months off the predicted recovery time and returned to action 252 days after his massive injury. 

This is from Welker's press conference after the September 14, 2010 game:

Q: Did any of the Bengals say ‘welcome back' after they tackled you?

WW: No, there weren't any touchy feely moments like that or anything.

Q: Is this just another game for you or is this a highlight of the year you've had?

WW: I'd like to say that it was a highlight, but it was just another game, not going out there and preparing and thinking, ‘this is the big comeback' or whatever. For me, it was just getting out there playing, being out there with my teammates and trying to contribute to a win.

Q: What did you say to the doctors when they gave you the original timetable for return?

WW: It was kind of like, ‘well, let's wait and see where we're at when we get there.' So, I tried to put it in their heads early and from there, they were able to see me on the field and able to get out there and play.

Q: Did you ever feel like you could prove the doctors wrong?

WW: Yeah, kind of ... you know doctors, what do they know? So, I think when they saw my quad and how all the muscles were same size as the other side, they were a little bit shocked, but at the same time, very cautious.

Read more at the Patriots website:

Having had ACL reconstruction surgery myself,  I know that the recovery period is long. My orthopedic surgeon told me it would be at least eight months before I could resume sports activities. It took that long, and about a full year from the date of surgery until I was close to being fully confident with my knee when playing any kind of sport. 

Now, Wes Welker is a professional athlete who has all kinds of physical therapy available to him and can rehab on a daily basis. I dare say that rehab was the primary focus of his life, and he was being paid to do just that so he could get back on the field and compete for his team.

As much as I wanted to rehab daily, followed up with an ice bath for my knee,  I could only rehab three times per week, and then for only eight to ten weeks post surgery because that was all my health insurance carrier was willing to pay. I still had to litigate and try my clients' cases!  I remember hiring a sports rehab therapist and paying her privately after my health insurance approved rehab was completed. It was important for me to get back where I needed to be, as soon as I practically could, without re-injuring myself. 

What does Wes Welker’s approach and recovery say to accident victims in terms of maximizing  physical therapy? It means listen to your doctors, but don’t take their word as gospel. Individual patients can do much better in the recovery process than any particular doctor may be used to seeing. Hard work in PT is the key. Wes Welker is a highly positive individual. But it's clear that his mental attitude helped to shape his recovery and shortened his recovery period from major surgery.

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