People often call me with claims that they were mistreated or the victims of perceived malpractice by mental health providers. Claims range from people believing that they were improperly 302’d or had medications switched with bad side effects or were otherwise mistreated. These calls almost uniformly do not turn into actual cases. The aggrieved person may be correct and may have a valid basis for a complaint. But, there are so many hurdles to surpass that the claim will only rarely become an actual lawsuit. Why? Because, I would have to prove that a mental health provider acted with gross negligence or engaged in willful misconduct. These are nigh impossible standards to meet in civil practice. Willful misconduct means you intended to harm the patient. The only case that jumps to mind here is sexual assault by a nurse or provider in the mental health context. Gross negligence similarly means something akin to leaving a suicidal person alone without supervision for days or failing to provide needed and prescribed medication for an extended period. This is not just an oversight or missed dose etc. Often, the cases that meet this very high standard are ones where prison suicides are the focus of the case. Often, our prison mental health system is not ideal and though the expectation of medical care in a prison is lower in my mind, there are still standards to be met.
Pennsylvania’s Mental Health Procedures Act, 50 P.S. § 7114, is intended “to provide limited civil and criminal immunity to those individuals and institutions charged with providing treatment to the mentally ill.” Farago v. Sacred Heart General Hospital, 562 A.2d 300, 303 (Pa. 1989). To this end, § 7114 provides that those who are engaged in treating or examining a patient “under the act” cannot be held liable absent “willful misconduct or gross negligence.” Whether we agree with it or not, them’s the rules. Much of the Act addresses voluntary inpatient treatment for mental health. However, it would also arguably prevent a lawsuit for other routine medical malpractice. The MHPA defines treatment as including diagnosis, evaluation, therapy, or rehabilitation needed to alleviate pain and distress and to facilitate the recovery of a person from mental illness and shall also include care and other services that supplement treatment and aid or promote such recovery.” 50 P.S. § 7104. This definition evinces the legislature’s intent to define “treatment” broadly, so that it includes “medical care coincident to mental health care.” Allen v. Montgomery Hospital, 696 A.2d 1175, 1179 (Pa. 1997). Thus, “the General Assembly decided to reduce certain risks by granting limited immunity to doctors and hospitals who have undertaken the treatment of the mentally ill, including treatment for physical ailments pursuant to a contract with a mental health facility to provide such treatment.”
So, apart from being involuntarily committed for your own mental health, it is very hard to pursue these cases.
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PROBLEMS IN PHILADELPHIA AND MY PERSPECTIVE
Posted on September 01, 2022 in In the News
How you look at the world is colored by your background, education, race, politics, etc. Many of my clients initially see me as an overfed (meaning the diet is not working) white lawyer and think I am a trump fan, which I am not. But, that is their perspective. Pre-Covid, I would meet every client in their home, regardless of how good or bad their neighborhood was. I thought and still feel that I owe that to clients. These days we zoom, but it is not the same. If you are in someone’s home, you get a sense of who they are that you cannot get on the phone or zoom. I have seen good and bad and everything in between. I have been to homes where children have no beds to sleep on and to homes where clients tell me that the $25,000 value I assign to their case is not enough to even pay for the last vacation they took. So, I see a lot of people living their lives.
I generally think that most people are good people and want to do the right thing. I also know that there is about 10-15% of our population, who are just no good. Right now, it seems that we are in a tense period where people are feeling unsafe and others are desperate. I have a client who is often in the City of Philadelphia. He said that before the pandemic, people would steal tools from his work trucks. Now, they steal the truck….at gunpoint.
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I HAVE NEVER SUED SOMEONE BEFORE
Posted on August 31, 2022 in Case Matters
When I hear that from a new client or caller, that is generally a positive thing. It means that the person is hurt enough and pissed off enough to go find a lawyer to get some justice for themselves? About 80% of my clients have never filed a personal injury lawsuit before. Whether they actually have a case worth pursuing remains to be seen.
The notion of people being sue-happy and pursuing frivolous cases is simply wrong in my experience and practice. I don’t take cases where people cause their own injuries or where negligence is unclear. That is bad business from my end and likely to lead to unhappy clients in the long run. Why? Because people with crappy cases get crappy results and end up with no money in their pocket and are unhappy. If I can see this coming, why would I take their case? I wouldn’t and don’t.
I weed out a lot of people who think they have a case. In the past few weeks, I have turned down multiple callers primarily because their cases don’t have damages and so even if we prevail and show that they were injured, their cases don’t have enough damages to justify pursuing a claim. What does that look like? A bicyclist hit by a car, but only suffering a bruised arm? Nope. Not a case. A pedestrian injured by a tree branch growing into a sidewalk that cut the pedestrian? Not a case. You need permanent injury to sue the City, which is responsible for trees. A failure to diagnose a burst appendix? Not a case because it was already burst and you needed the same treatment you got. People with mental health claims like being improperly 302’d also do not have cases unless death or something similar results. Mental health providers have a heightened protection in PA. So, are there a lot of callers who think they have cases? Yes. Are they money grubbing litigious Americans? Who knows. I am sort of the first gateway or filter for what gets into the American court system. Generally, while lawyers are wrong at times, we are not going to take your case and file a lawsuit unless there is some decent level of damages to pursue.
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DO YOU NEED THE PUNISHER OR MY COUSIN VINNY?
Posted on August 24, 2022 in For Lawyers
The Punisher seeks vengeance for the murder of his family. I am not the punisher. My clients however do want their vengeance. They want someone to be held accountable. Often, while I enjoy the punisher concept, the fumbling, humorous, cross-examination of Vinny in My Cousin Vinny is better at accomplishing the task at hand. What is the task? The task is making the Defendant look so silly in their testimony that even their own lawyer is shaking their head or making notes to have the case settled.
My general evaluation is that insurance companies do not put much stock in their lawyers or their insureds when they know the person is at fault. The big insurers’ practice is for their lawyers to prepare the defendant for a half hour before the deposition. I am happy to be on the other side of that, but to me it is inadequate preparation for a deposition. I spend 2 plus hours with my client days in advance of a deposition to understand what they are going to say and how they are going to say it and generally to put them at ease.
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CROSS-EXAMINATION OF EXPERT WITNESSES:
Posted on August 24, 2022 in For Lawyers
Preparing to cross-examine a defense expert witness is part of every case that approaches trial. For most of the case, all that I have from the defense expert is a three-page letter relating the expert’s opinions and his curriculum vitae or resume. That is not much information to go on. A typical letter from a typical defense expert says that the expert reviewed the patient’s records, met with the patient, and concluded that there was no connection between the incident and the patient’s injury, and that the patient is fully healed or some variation on that theme.
Clients are always astounded that defense experts will offer such an opinion, but it is merely a money-making operation for the doctors. Often, the experts in auto cases make a lot of money reviewing hundreds of cases for insurers and have their own private practices, where they see patients. They assume that most cases will settle without the need for their testimony. But, the combination of overly busy experts with no real preparation makes the defense expert an easier target than one would expect.
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GAZPACHO 101
Posted on August 24, 2022 in In the News
Gazpacho with vegetables. Wooden rustic background. Top view. Close-up
I am the cook in my family. Summertime is for tomatoes and gazpacho. It is easy and awesome, as long as you have a blender. Here is the recipe. I found it in the NY Times years ago.
- 2 large fresh red tomatoes or three medium with cores removed. Chopped to fit blender
- 1 large cucumber/ ends removed. Chopped to fit blender
- 1 clove garlic peeled
- 1 cubanelle pepper (long pale green) ends and seeds removed
- Sherry vinegar (1/4 cup or less to taste)
- Olive oil 3 tablespoons or to taste
- Baguette/hoagie roll (2-3 inch piece torn up)
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WHAT DOES THE PROCESS OF MOVING A PERSONAL INJURY CASE ALONG LOOK LIKE?
Posted on August 18, 2022 in Best of
When a case first comes in, the client is usually a stranger to me. They are coming from google or a word of mouth referral, but we have likely never met. So, there is an initial process of getting to know you and in the first conversation or two I explain that you do not pay me on an hourly basis and that I usually take a 33% fee at the end of the case. Then, there are a lot of basic facts to figure out at the beginning of the case. This is similar to any long-term project you may work on. If you want to find surveillance tape from a car crash in two years, it will have been lost. If you get it in the first week or two after the crash, you may be able to get it. Even then, they are hard to find. Often, I like to go to the crash scene or the slip and fall scene to get a sense of the area and get my own photos. Often, for evidentiary reasons, I send my private investigator to do that work. Next, I will meet with the client on Zoom and ask any needed follow up questions.
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DO YOU LIKE WHAT YOU DO?
Posted on August 18, 2022 in Best of
Before the pandemic most people, like 70%, hated their jobs. Once pandemic was in full force, a lot of people said I don’t want to go back to that stinking job and found another or quit and stayed home. Now, with the hints of recession around, people are scrambling to get back into the workforce. Nevertheless, the question remains, do you like what you do?
I like what I do. I am probably happiest taking depositions and reading medical records to figure cases out. I am certainly happiest doing what I am doing compared to all my other lawyer jobs. I have been an assistant district attorney, a medical malpractice defense lawyer, and even served a year as a bankruptcy lawyer, which felt like solitary confinement. Anyway, as a plaintiff’s personal injury lawyer, I get to fight with people for a living and I like that. Motor vehicle cases and slip and fall cases are the basic everyday work in my practice. I work on a select few medical malpractice cases that appeal to me and refer others out to quality counsel. I work on select products liability cases and handle carbon monoxide and some interesting cases against gas producers. Overall, I am always looking for clear liability cases and good damages.
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GOT UIM?
Posted on August 18, 2022 in Auto Accidents
Your car insurance includes something called underinsured motorist coverage (UIM) and its partner and friend uninsured motorist coverage (UM). You should have these. They are required by Pennsylvania law. Simply put, UIM protects you if you are injured by someone without enough insurance. UM protects you from hit and run drivers or when a deer jumps in front of your car and you are injured in the resulting crash. The deer does not have coverage unless they are a very law-abiding deer.
Why do I have to go back and harp on this issue when it is required by law? Unsurprisingly, your insurance carrier really does not want you to carry it so they allow you to reject it and it reduces your premium a tiny bit. What are you doing when you reject UIM? You are hurting yourself.
Why doesn’t your insurance company want you to carry UIM? Well, because contrary to the situation where another driver hits you and you sue their insurance company, in the UIM context, you are suing your own insurance company for not paying you what you contracted for. So, by encouraging you to reject UIM, they are protecting themselves from you, their policyholder, suing them. Not nice. Sneaky, underhanded? Or buyer beware? Consider yourself warned.
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