Pennsylvania Injury Law Report : Accident Attorney Philadelphia: Personal Injury Attorney Philadelphia (PA), Injury Lawyer Philadelphia - Kreithen Baron & Carpey

On November 7, 2011, cardiologist Conrad Murray was found guilty of involuntary manslaughter of pop superstar Michael Jackson, who died of cardiac arrest on June 25, 2009. The trial, which lasted six weeks, ended with the jury’s decision that Dr. Murray’s conduct was reckless enough to be viewed as criminally negligent under California’s penal laws. His conviction was for involuntary manslaughter, which at least under California law, is defined as criminal negligence.  The prescribing and unorthodox administering of the powerful anesthetic propofol was the major factor in proving Dr. Murray’s guilt.

California Penal Code 192(b) recognizes involuntary manslaughter as “the commission of an unlawful act, not amounting to felony; or… the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The prosecutors in this case had to prove that even though the doctor did not intend to kill Jackson with propofol, Murray’s utter disregard for his patient amounted to recklessness.

In a civil case, negligence is a common law tort in which a person is injured due to another person’s carelessness. Criminal negligence as it is defined by California law, occurs when a person (such as a doctor) acts in blatant disregard of the harm which might befall another person (such as a patient), ie: recklessness.

If Jackson’ family decides to sue the doctor in negligence, they would be able to use the evidence already presented in the criminal case. If and when Jackson’s estate brings a negligence case, here is what must be proven:

Duty: In a civil negligence case, it is necessary to prove that the defendant (Conrad Murray) owed a duty to the plaintiff (the late Michael Jackson). Due to the doctor-patient nature of their relationship, it is undeniable that Dr. Murray owed a duty to Jackson and that that duty required Murray to act in a manner befitting his profession.

Breach of Duty/Breach of Standard of Care: After establishing that Dr. Murray owed a duty to his patient, it is then necessary to prove that he breached that duty. Prosecutors had presented a list of ways in which the defendant failed to fulfill his duty to the plaintiff. Prescribing 4 gallons of propofol, and allowing the drug to be administered within Jackson’s home was an unorthodox practice which has been recognized as the doctor’s major breach of duty, and outside of the standard of care: ie what a reasonable doctor would have done under the circumstances.

Causation: After proving breach of duty, prosecutors must argue that the defendant’s negligence directly caused harm to the plaintiff. Combined with other drugs, the propofol prescribed to Jackson caused the singer to go into cardiac arrest. In the criminal case, prosecutors argued that Dr. Murray failed to perform all of the necessary steps of cardiopulmonary resuscitation (CPR); specifically, he performed CPR on Jackson’s bed rather than on a flat surface. These details further prove breach of duty, as well as served to implicate Dr. Murray in causing Jackson’s death.

Damages: Damages in a negligence case amount to the injury or other measurable loss inflicted upon the plaintiff. The damages here were, obviously, the singer’s death. But also, there is an element of pain and suffering which is called survival damages, and Jackson’s loss of earnings over his expected lifetime, which falls under the category of wrongful death damages.

Duty, standard of care/breach, causation and damages are the elements which need to be proven by any plaintiff/estate in a death case, whether in Pennsylvania or in California.

Dr. Murray is due to be sentenced on November 29th, 2011. He could serve up to 4 years in prison for involuntary manslaughter.  

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Why can't that driver next to me stop texting while driving?

According to a recent University of Kansas research study, texting is like any addiction. The study was done by Paul Atchley, Ph.D. ,  an associate professor of Cognitive Psychology at the University of Kansas. Texting is a social behavior, and that desire to stay connected is extremely powerful because it taps directly into your brain's reward system. You want that next hit, and that "bing" on your smartphone provides that next hit of social acceptance.

As of the present date, 34 states have banned texting while driving. But legislating the issue does not necessarily solve the problem. Therefore, as a motorist, it's a good idea to learn to protect yourself on the highway. Other multicasting motorists give signals. Texting or otherwise distracted drivers generally:

• drive more slowly compared to other drivers
• tend to drift in and out of their lanes.
• tend to miss off ramps and on ramps until the last minute.

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After a series of scandals from 2008-2009 which left Luzerne County Court of Common Pleas with vacancies in six out of ten judges’ seats, 2012 will finally see the court again fully-staffed. On November 9, 2011, Timesleader.com’s Sheena Delazio reported that six new judges won election in the county.

Jennifer Rogers, a civil litigator who first ran in 2009, received the most votes with 41,706, trailed by Fred Pierantoni with 39,881. The other winners are Joseph Sklarosky Jr., Michael Vough, Dick Hughes, and Lesa Gelb.

The new judges will be occupying seats left by former judges Ann Lokuta, Mark Ciavarella, Jr., Michael Conahan, Michael Toole, and Peter Paul Olszewski.

As I have written about before, Ciavarella and Conahan were removed from the bench in relation to the “Cash For Kids” scandal. Ciavarella chose to go to trial and was found gulity. Conahan pled guilty.

The new and fully staffed 2012 court promises to begin a new era for Luzerne County. The new judges have released statements expressing how “humbled” and “honored” they feel to be elected. County judges serve 10-year terms.

For more information on Luzerne County’s new judges, see the Times Leader’s article.

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Newspapers across the country have been fervently putting out stories about the Penn State scandal, as they should.

In Monday's Inquirer, in a front page article written by David O'Reilly (11/14/11 'PSU Scandal Expected To Prompt Laws") the report was mainly about the fact that the Pennsylvania Legislature is quickly revamping laws regarding the criminality of non reporting of child abuse. I found one portion of the article  particularly interesting however.

Some also voice hope that their colleagues will take another look at proposals already on the table, including a right-to-sue bill for abuse victims that is stalled in committee....Several lawmakers have scheduled a news conference for noon Tuesday in the Capitol rotunda to demand action on various abuse-related bills.Among them will be Rep. Michael McGeehan (D., Phila), who introduced a bill in March that would give all victims of child sex abuse a two-year window of opportunity to sue their assailants. Many adults who were abused as children are barred from suing because the statute of limitations on their assaults has expired.The current Republican chairman of the judiciary committee and the previous Democratic chairman have both refused to hold hearings on McGeehan's bill or bring it up for a vote.

In an era when "right to sue" laws are shunned by the political right, in a state that has a Republican Legislature and Governor, this was welcome news. Under present laws in Pennsylvania, the statute of limitations, the time in which one must file suit or be forever barred from doing so, is two years from the date of the offending incident. In a car accident case, the statute of limitations is two years from the date of the accident. in a medical malpractice case, the statute of limitations is two years from the date of the medical care which caused injury to the patient. These are hard and fast rules. The only exception is for minors, who have two years from their 18th birthday to file suit against the wrongdoer.

In 2002, the Pennsylvania Legislature amended the statute of limitations to create an exception for childhood sexual abuse. 42 Pa. C.S.A. Section 5533 provides:

i) If an individual entitled to bring a civil action arising from childhood sexual abuse is under 18 years of age at the time the cause of action accrues, the individual shall have a period of 12 years after attaining 18 years of age in which to commence an action for damages regardless of whether the individual files a criminal complaint regarding the childhood sexual abuse.

(ii) For the purposes of this paragraph, the term “childhood sexual abuse” shall include, but not be limited to, the following sexual activities between a minor and an adult, provided that the individual bringing the civil action engaged in such activities as a result of forcible compulsion or by threat of forcible compulsion which would prevent resistance by a person of reasonable resolution:

(A) sexual intercourse, which includes penetration, however slight, of any body part or object into the sex organ of another;

(B) deviate sexual intercourse, which includes sexual intercourse per os or per anus; and

(C) indecent contact, which includes any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.

(iii) For purposes of this paragraph, “forcible compulsion” shall have the meaning given to it in 18 Pa.C.S. § 3101.

In the typical sex abuse case, it is not unlikely the the victim does not immediately come forward. Extending  the statute of limitations by allowing Pennsylvanians who have suffered from sexual abuse  an even additional length of time from the date the abuse is reported to law enforcement authorities seems like the balanced and fair approach. Abolishing the statute of limitations in these cases does not seem likely, but as reported in The Patriot News as of April 2011 there was a push in Harrisburg to do just that. Hopefully, in light of what has happened at Penn State, we will see a more favorable statute of limitations law passed soon to allow victims sufficient time to seek compensation from their assailants, or, as in the Penn State situation, compensation from the institutions that allowed the abuse to occur.

UPDATE: Chris Mondics 11/24/11 article " Pa. laws could limit any Sandusky  suits"in the Philadelphia Inquirer provides further information on how the statute of limitations in Pennsylvania penalizes victims of sexual abuse. Shanin Specter of Kline and Specter is quite correct when he says

If you are under 20 [when one files], you are good; if you are over 30, you are out; if you are between 20 and 30, the statute turns on how you define forcible compulsions," said Specter. "I believe that, ultimately, the claims will get through the statute of limitations because these situations involve a man [Sandusky] in his 50s or 60s with young boys, where he had a domineering position.

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These days, a good number of doctors have interests in medical technologies: many take part in researching and testing new supplies, machinery, and hardware, lending their expertise to examine practicality and usability.

On some occasions, surgeons may be placing themselves in conflicts of interest: using medical products on their patients that they have either developed, tested, or endorsed themselves— and from which they stand to profit monetarily. Dr. Adam Lewis, a spinal surgeon recently cited in a Wall Street Journal article (October 8, 2011, John Carreyrou and Tom McGinty) for allegedly causing the wrongful death of a patient, used spinal hardware from a company in which he had a vested financial interest. His use of a product he personally developed and endorsed is argued to have lead to his patient’s death from surgical complications.

The Association for Medical Ethics (AME) has addressed the dangers and inherent conflicts of interest involved in using hardware that bears extra monetary profit for doctors. There is an extra incentive for doctors to use these products, either through royalties gained from the manufacturers, or direct profit from partial ownership of the manufacturing company itself. The concern of the AME, as outline in the Wall Street Journal article, is that some doctors, spurred by the promise of more money, will perform surgeries that are not necessarily vital to the care of their patients.

Instances such as Dr. Lewis’ and several other doctors only serve to show the importance of knowing as much about your treatment as possible. Making sure that your medical history is complete and acknowledged, that the best and least harmful treatments have already been attempted and have not sufficed, and that your doctor has your health first in mind, is more important than ever in a world where industry and medicine are growing closely together.

For more from the Association for Medical Ethics, see "The Role of Industry and Academia."

The Wall Street Journal, “Taking Double Cut, Surgeons Implant Their Own Devices.”

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