June 11, 2010

Pennsylvania regulators to investigate health insurers’ practices.

Category: In the News

As reported in AAJ News Brief for June 10, 2010

From the desk of John R. Badal, Reading, Berks County Lawyer , auto accident insurance law :

The AP (6/10, Scolforo) reports that on Wednesday, “Pennsylvania regulators said…they have detected a pattern of rate increases by health insurance companies that suggests insurers are trying to pad revenues before federal health reforms are fully implemented.” According to Gov. Ed Rendell, “the Insurance Department was investigating the state’s nine largest health insurers over the use of what he described as questionable health profiling tools.” For example, “Insurance Commissioner Joel Ario said there was evidence that some companies recently have expanded their use of individualized medical questionnaires and drug profiling in the small-group insurance market,” as well as “attempts to ‘identify and drive up premiums for the most vulnerable groups.’”

The Pittsburgh Business Times (6/10, Mamula) reports that “Pennsylvania has some of the weakest protections in the country against rate increases for small businesses, with no cap on increases for medical conditions, according to… Ario.” Meanwhile, on June 7, “US Department of Health & Human Services Secretary Kathleen Sebelius…announced the availability of $51 million in grants for states to create and strengthen the insurance rate review process.”

Reuters (6/10, Krauskopf) reports that Pennsylvania is now applying for an HHS grant before the submission deadline on July 7.

May 7, 2010

Illinois House unanimously passes measure to improve nursing home care

Category: Press

From the desk of John Badal, Liever, Hyman & Potter, nursing home abuse and nursing home neglect lawyers.

The Chicago Tribune (5/7, Garcia) reports, “House lawmakers unanimously approved legislation Thursday that would sharply raise the standards of care and safety in Illinois’ troubled nursing homes. The measure was embraced by Democrats and Republicans alike, and was sent to the Senate on a 118-0 vote, where the plan is expected to be met with similar support.” Notably, the “proposal would require nursing homes to increase staffing levels, meet higher standards before admitting patients with serious mental illness, and segregate the most dangerous residents in secure units where they would receive more intensive monitoring and treatment.” The Tribune adds, “Overall, the bill is designed to move thousands of mentally disabled people out of the homes and into less costly and more effective community treatment programs.”

We must do more to protect our nu rsing home residents in Pennsylvania. They have a right to the best care and the right to live out their lives with dignity. Unfortunately, the law firm of Liever, Hyman & Potter deals on a regular basis with families whose members have been the subject of nursing home neglect and nursing home  abuse in Berks County, PA and in Schuy lkill County, PA. We do what we can. We must all do more.

May 5, 2010

When faced with a termination petition a workers’ compensation judge must consider all injuries not just those injuries contained on the notice of compensation payable

Category: In the News

From the Desk of Adam K. Levin, Esq. (PA workers’ comp attorney)

Julio Paz Y Mino v. WCAB (Crime Prevention Assoc.), 2010 Pa. Commw. LEXIS 86.

The injured worker, referred to as the Claimant, sustained work-related injuries when he tripped over boxes, fell backwards, and landed on a concrete floor in June of 2000. The Employer issued a Notice of Compensation Payable (NCP) acknowledging a lumbar strain and sprain. In late 2003 to early 2004, the Defendant-Employer/Workers’ Compensation Insurance Carrier filed a Petition to Terminate the Claimant’s benefits alleging that he was fully recovered from his work-related injury. Litigation took place before a Workers’ Compensation Judge (WCJ) and the WCJ concluded that the Employer failed to prove that Claimant was fully recovered from his work-related injuries. In reaching this conclusion, the WCJ did not specifically state that she was amending the injury description contained in the NCP; however, the WCJ credited the testimony of Claimant’s treating physician and expert over the testimony of Employer’s medical expert and she summarized Claimant’s medical expert testimony, in relevant part, as follows:

Based upon his examination and his review of medical records [Claimant’s treating doctor] diagnosed Claimant as having severe stenosis at L4-5 with radiculopathy post-fall and mild L3-4 stenosis.

Claimant’s treating doctor explained that it was the fall at work that caused the underlying degenerative condition to become symptomatic. In other words, the fall aggravated his stenosis.

In July of 2006, the Employer filed a second Termination Petition alleging that Claimant had fully recovered from his work-related injuries and was able to return to unrestricted work. A different doctor examined Claimant at the request of the Employer and the same doctor (and another doctor) testified for the Claimant. The second round of litigation was handled by a new WCJ and the second WCJ issued a decision granting the termination of Claimant’s benefits. The second WCJ acknowledged the first WCJ’s decision had indicated that Claimant was diagnosed with severe stenosis but did not indicate that the condition was the result of the work-injury. Based on her own review of the evidence, the second WCJ found that Claimant’s work-related injuries were limited to a lumbar strain/sprain and that Claimant was fully recovered from his sprain/strain and therefore terminated Claimant’s benefits. The Workers’ Compensation Appeal Board (WCAB) agreed with the second WCJ and affirmed the decision. However, the Commonwealth Court of Pennsylvania held that the WCJ and WCAB were in error and ruled that even though the first WCJ “did not formally indicate the she was amending the description of injury contained in the NCP,” . . . by crediting [Claimant’s treating doctor’s] testimony and denying Employer’s first Termination Petition on the basis of that testimony, the first WCJ implicitly expanded the description of injury to include an aggravation of Claimant’s pre-existing stenosis.”

Because the second WCJ did not recognize that Claimant’s previously accepted work-related injury included an aggravation of his pre-existing stenosis, the second WCJ did not consider whether Claimant was fully recovered from such an aggravation.

The workers’ comp attorneys at Liever, Hyman & Potter, P.C., handle cases just like this as a regular part of our practice in Berks County and Schuylkill County, PA.

May 3, 2010

J&J recalls children’s OTC medicines

Category: In the News, Personal Injury

From the desk of John R. Badal, medical malpractice and defective product, personal injury lawyer, Reading, PA, Berks County , Pa.

The CBS Evening News (5/1, story 8, Glor) reported, “The FDA…is advising consumers to avoid more than 40 liquid medications for children that are being recalled by the manufacturer because of quality problems. The products include children’s and infants’ Tylenol, children’s and infants’ Motrin, as well as children’s Zyrtec [cetirizine] and Benadryl [diphenhydramine].”

The Washington Post (5/2, Layton) reported, “A division of Johnson & Johnson is recalling 43 over-the-counter medicines made for infants and children…after federal regulators identified what they called deficiencies at the company’s manufacturing facility.” McNeil Consumer Healthcare announced “the voluntary recall,” which “affects hundreds of thousands of bottles of medicine” that make up “a vast portion of the children’s medicine market.”

TheNew York Times (5/2, A21, Singer) reported, “The deficiencies may affect the potency, purity or quality of the products, the agency said.” The FDA also “said it was investigating the plant where the products were made to make sure there were no other problems.”

The recall includes pediatric formulations of Tylenol, Motrin and Zyrtec, theWall Street Journal (4/3, Rockoff) reports. A spokeswoman for McNeil indicated that the active ingredient in some products may be at a higher concentration than it should, while inactive ingredients in other products may be at levels the company says are inappropriate.

The Berks county, PA lawyers at Liever, Hyman & Potter are concerned for child safety and we represent children who are injured from negligent medical treatment, who are injured  in auto, truck and motorcycle accidents and who suffer injuries from improperly filled prescriptions.

April 8, 2010

Toyota emails show executive had urged company to “come clean.”

Category: Auto Accident Lawyer, In the News

Update from the American Association for Justice and from the desk of John R. Badal, Esq., Berks county and Reading, PA auto accident and personal injury lawyer.

Toyota emails show executive had urged company to “come clean.”

The CBS Evening News (4/7, story 7, 0:25, Rodriguez) reported that according to internal Toyota emails, “company executives wrestled with how to deal with sticking accelerator pedals. In January, five days before announcing a massive recall, an American vice president wrote ‘we are not protecting our customers by keeping this quiet,’ and ‘the time has come to not hide on this one.’ Toyota had no comment today.”

NBC Nightly News (4/7, story 4, 0:40, Williams) reported on one such email, “written by a company executive here in the US just five days before Toyota announced a massive recall. In the e-mail, the company executive acknowledges the company has accelerator pedal problems. Goes on to say, ‘we are not protecting our consumers by keeping this quiet. The time to hide on this one is over. We need to come clean.”

Bloomberg News (4/8, Keane, Ohnsman) reports that despite calls from within the company for “a more cautious approach,” the email from Toyota US VP Irv Miller urged the company “to ‘come clean’…about mechanical failures in accelerator pedals for some vehicles.” Miller “told other officials in an e-mail on Jan. 16 that ‘the time to hide on this one is over.” Noting that Secretary LaHood said this week that Toyota waited some four months to relate its findings about unintended acceleration to the public, Bloomberg adds that “Miller, who retired from Toyota later in January, declined to comment.” Nor would Toyota comment directly on Miller’s email.

The Los Angeles Times (4/8, Vartabedian, Bensinger) reports that Miller’s email came in response to an executives’ suggestion that his “colleagues to keep quiet about defective accelerator pedals. … The exchange — which occurred just days before a massive recall of Toyota vehicles to repair accelerator pedals — is the clearest indication so far that Toyota was debating internally when to disclose to its customers and federal safety regulators mechanical problems that were being linked to motorist complaints about sudden acceleration.”

Identifying the author of the email urging reticence as Katsuhiko Konagei, a Toyota communications coordinator, the New York Times (4/8, Maynard) reports that the exchange, made some three days before Toyota execs met with NHTSA officials about a potential recall, “was among 70,000 pages of documents requested from the company by the Transportation Department and Congressional committees, which are investigating Toyota’s recalls.” The Times notes that on Monday, LaHood “said he would seek the maximum $16.4 million fine permitted against Toyota over the sticking pedal recalls.”

Toyota told European distributors about sticky gas pedals weeks before informing NHTSA. The AP (4/8, Thomas, Margasak) reports that the documents reveal that “long before Toyota told US regulators about sticking accelerator pedals, [it] warned its distributors throughout Europe about similar problems.” US complaints “were rising at the end of 2009. The documents show that weeks earlier, on Sept. 29, its European division issued technical information ‘identifying a production improvement and repair procedure to address complaints by customers in those countries of sticking accelerator pedals, sudden rpm increase and/or sudden vehicle acceleration.” The AP notes that “LaHood cited the warnings to the other countries” in announcing the decision to levy the record $16.4 million fine against Toyota.

-JOHN BADAL, ESQ.- Automobile lawyer, Reading PA. Truck a ccident lawyer and motorcycle accident lawyer Berks County PA.

March 30, 2010

Construction Zone Car Crash

Category: Auto Accident Lawyer

From the Desk of Adam K. Levin, Esq. (auto accident attorney/truck accident lawyer)

Mavrich v. Penn DOT and Golden Triangle Construction Co., Inc., (C.P. Beaver Cty. Nov. 30, 2009).

Judge Kwidis of the Court of Common Pleas of Beaver County, Pennsylvania, denied the Motion for Summary Judgment filed by a construction company performing road work on a state highway and allowed a Pennsylvania car crash victim to proceed to a jury trial. In this case, the plaintiff driver approached an intersection in Aliquippa, Pennsylvania, which was under construction. As the driver approached the intersection, the right lane was closed and the plaintiff swerved abruptly to his left to avoid a collision with the construction barrels and directional arrow in the closed right lane of traffic. As a result of taking evasive action, the plaintiff’s vehicle veered up and over the concrete median in the center of the four lane road. His gas tank was ruptured and flames engulfed the vehicle. The plaintiff sustained 2nd and 3rd degree burns covering 35% of his body, necessitating three separate surgeries.

The plaintiff filed a lawsuit against PennDOT and the construction company performing work on the site. The plaintiff alleged that the defendant created a dangerous condition by not adequately warning drivers of potential dangers within the construction site, i.e. the right lane closure and the damaged median. Judge Kwidis ruled that issues of fact exist as to whether the construction company should have erected signs warning drivers of the disrepair of the concrete median and the right lane closure and that the case should therefore be decided by a jury concerning the need for appropriate warning signs.

The auto accident lawyers and truck accident lawyers at Liever, Hyman & Potter, P.C., handle cases just like this as a regular part of our practice in Berks County, PA.

March 28, 2010

Lawsuit allowed against both Negligent Driver and Client’s Insurance Company

Category: Auto Accident Lawyer

From the Desk of John R. Badal, Esq. (auto accident lawyer/Truck accident lawyer)

Until recently in Pennsylvania, anyone injured in a car accident or truck accident could only bring suit against the driver who was believed to be at fault in causing an accident . The insurance company representing the at fault driver could not be named as a defendant although the company would be responsible for paying the defendant’s lawyer and any settlement or judgment up to the amount of the liability insurance coverage. If it was believed that the amount of the payment was inadequate then we could bring a claim against our client’s own insurance company if his or her policy had underinsured motorist coverage. Now a County Court Judge in Pennsylvania has ruled that an injured claimant can bring a claim against both the responsible driver and against the injured person’s own insurance company for underinsured motorist coverage in the same lawsuit.

The underlying personal injury case arose out of a collision which occurred when the vehicle operated by the initial Defendant, struck the rear of the vehicle operated by the Plaintiff. State Farm Insurance Company provided liability coverage to the Defendant, and in a separate policy underinsured motorist (UIM )coverage to the Plaintiff. State Farm Insurance Company opposed the Plaintiff’s Motion to Amend the Complaint on the ground that the defendant driver would be extremely prejudice(d) in this case if the plaintiffs were allowed to join their UIM carrier on a breach of contract claim in the action.

This Court relied upon a Pennsylvania Court rule which states that it is permissible to join actions involving the same transaction or occurrence and the same factual questions of liability and damages. In this case, the court found that the auto accident and underinsured motorist claim arose out of the same occurrence, which was the motor vehicle accident, and involved the same factual questions of liability and damages. This Court also noted that a Pennsylvania rule of evidence prohibits evidence that a party was or was not insured, when the purpose or effect would be to influence the findings regarding liability or damages. However, citing Commonwealth, Department of General Services v. United States Mineral Products Company, 809 A.2d 1000 (Pa.

Cmwlth. 202), the court said that when evidence of insurance is relevant as to other issues in the case it will not be barred merely because it might be prejudicial.

SEE: IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY PENNSYLVANIA, CIVIL DIVISION-LAW

BRADISH-KLEIN and KLEIN vs. DONALD KENNEDY and STATE FARM INSURANCE COMPANY, No. 11548 of 2009

JRB, ESQ. Accident car lawyer/auto accident lawyers February 24, 2010.

March 25, 2010

An Auto Accident Lawyer Looks at the Toyota Situation

Category: Auto Accident Lawyer, In the News

An Auto Accident Lawyer Looks at the Toyota Situation I am a car accident lawyer. I represent people injured in car accidents. I am also a long-time Toyota customer. (Three Camrys over the years and a Prius currently).

We bought the Prius new. It has about 22,000 miles on it. We have not experienced unintended acceleration and indeed have had no problems with the car. So, am I concerned? You bet, and here’s why.

A few months ago we received a “Safety Recall Notice” from Toyota. The notice identifies “…the potential for an unsecured or incompatible driver’s floor mat to interfere with the accelerator pedal and cause it to get stuck in the wide open position. Toyota has determined that the defect does not exist in vehicles in which the driver side floor mat is compatible with the vehicle and properly secured.”

I took a closer look at the Prius. We have a standard Toyota carpet mat. At the end of the mat closest to the seat, there are two holes through which hooks (attached to the floor) protrude, holding the mat in place. These seem to work quite well. It is not easy to dislodge the mat from the hooks. At the other end of the mat, there is a two and a half inch clearance between the mat (assuming it is lying flat) and the top of the accelerator pedal. If the mat is unhooked and placed over the gas pedal, it will not depress the pedal. It does not weigh enough to depress the pedal. Similarly, if the pedal is depressed and the mat then placed over the pedal, the pedal return mechanism provides enough force to overcome the weight of the mat and return the pedal to its zero position. So, since we have an original Toyota mat which is always properly secured with the hooks, I assumed we had no problem. Evidently, I was wrong.

I recently looked at the Toyota website. I typed in my Prius VIN and learned that Toyota is planning to have my local service department contact me during 2010 in order to remedy the potential for my floor mat to entrap the pedal. The remedy includes “reshaping” the accelerator pedal.

I still don’t understand how my standard issue Toyota mat can cause pedal entrapment. I don’t understand why it’s necessary for the service department to reshape my accelerator pedal, whatever that means. I have a hard time believing that the hundreds of reports of unintended acceleration can all be explained by accelerator pedal floor mat entrapment.

Is it the mats? Or the electronic throttle? Or driver error? What should Toyota do to finally clear this up? Here are my modest suggestions:

  1. Explain in detail how and under what conditions the mat can cause unintended acceleration.
  2. Explain in detail how the proposed fix to the mats will correct the situation, as opposed to making it worse. (Remember the old saying, “If it ain’t broke, don’t fix it.”)
  3. Provide to an independent (by that I mean people not paid by Toyota or, for that matter, by Plaintiffs’ attorneys) blue chip panel of scientists and engineers (as in the Challenger investigation) all the technical data needed to evaluate not only floor mat entrapment, but the possibility that the electronic throttle control is the culprit. Also, immediately provide the panel with all available black box data on any unintended acceleration event.

Yes, if there is a problem, Toyota will be sued and may have to pay damages, which is only right. However, by addressing the problem openly and honestly, Toyota will avoid later occurring car accidents and the lawsuits that arise from them. They will also go a long way toward restoring the American public’s trust in their cars.

March 24, 2010

Plaintiff’s lawyer to pan Toyota’s safety systems in press event

Category: Auto Accident Lawyer

From the AAJ News Brief from March 23, 2010:

USA Today (3/23, O’Donnell) reports that in a Washington, DC, press conference scheduled for today, an attorney in a case against Toyota will claim that the automaker’s "safety systems are ‘deficient’ because they do not detect problems that lead to unintended acceleration. … Disputing Toyota’s claims that its ‘fail-safe’ systems prevent unwanted acceleration will be Tom Murray, a Sandusky, Ohio, lawyer who has brought dozens of unintended-acceleration cases over 20 years, and three British engineers who specialize in electronics and electromagnetic interference (EMI) from signals in or outside the car. The group also contends that no amount of testing could assure Toyota that EMI or software glitches can’t cause unintended acceleration."

California sisters sue Toyota over 2008 crash. The San Jose Mercury News (3/23, Salonga) reports that a pair of sisters from Contra Costa County, California, filed suit this week alleging that Toyota is responsible "for injuries they suffered in a 2008 car accident, claiming their Camry suddenly accelerated and sent them crashing into a brick wall… The suit further claims that a recall of that Camry model would have prevented the accident."

Toyota told dealers sudden acceleration linked to electronics in 2002. CNN (3/23, Griffin, Fitzpatrick) reports that in a 2002 technical service bulletin to its dealerships, Toyota warned "that Camry owners were complaining about throttles surging and recommended adjustments in an electronic control unit to fix the problem." The document "went to every U.S. Toyota dealership in late August 2002 after some customers reported their vehicles were speeding up unexpectedly. ‘Some 2002 model year Camry vehicles may exhibit a surging during light throttle input at speeds between 38-42 mph,’ the bulletin states. ‘The Engine Control Module (ECM) calibration has been revised to correct this condition.’" CNN contrasts this document with Toyota’s repeated insistence that its sudden acceleration problems are not due to electronic factors.

Toyota Announces Plan To Replace Accelerators In Secondary Recall. The New York Times (3/23, Maynard, Bunkley) reports that Toyota has announced that its dealerships will "provide replacement accelerator pedals to owners unhappy with repairs" after a series of cases of unintended acceleration in cars that have already been through the recall process. "’Accelerator pedal replacement is based on specific customer request only,’ said the memo, which was addressed to dealers, service managers and parts managers. ‘Dealers are not to solicit pedal replacement.’"

At Liever, H yman & Potter our a uto accident lawyers/ car accident lawyers/ truck accident lawyers are members of the AAJ ( American Association for Justice) and the PAJ (Pennsylvania Association for Justice).

December 7, 2009

Hunting Accidents

Category: Gun Accidents

It’s the first week of deer season and our local newspaper reports the casualty toll from day one. “Three hunters died and five others received non-life threatening injuries in four accidental shootings on the opening day of Pennsylvania rifle deer season…”.

One hunter died of a gunshot wound, and a second of head injuries after he fell from a tree stand. There are no details given for the third death. The five non-life threatening injuries included a ten year old girl and her father injured when a gun fell and went off.

Victims of hunting accidents sometimes contact accident attorneys. The accident attorney must obtain the Hunting Related Shooting Incident (HRSI) report, which will typically include witness statements and photographs of the scene as well as an examination of the rifle, etc. The accident attorney will rarely encounter a hunting related shooting incident which does not involve a violation of safe hunting practices.

Occasionally a case goes to trial and an opinion is written by a judge. Such was the situation in the Bissett case where Dauphin County’s colorful Judge John C. Dowling set forth the facts:

In the invasion of Clemson’s Island, Scott Bissett, who had gone ashore in the pre-dawn, was shot in the thigh when as day broke the battle began. His company had dug in, and when the fighting became intense even considered retreating to the landing craft, but as this entailed crossing an open field which was under a heavy barrage, they stayed on the line.

While the assailant is unknown, it is evident it was not the enemy, but another member of the invasion force, for the island to be subjected was inhabited only by an army of deer…[and hunters armed with] bow and arrow and flintlock rifles, thus making the ensuing engagement a combination of Agincourt and Bunker Hill.

So, how dangerous is the first day of deer season in Pennsylvania? The Pennsylvania Game Commission estimates that 750,000 hunters took to the woods on the first day. Assuming that the early reports are correct, and that one hunter died of a gunshot wound and five suffered non-life threatening injuries, the casualty rate represents a minute fraction of the number of hunters in the woods.

The low casualty rate can be attributed to Pennsylvania’s stringent gun safety regulations and the efforts of its law enforcement agencies, particularly the Pennsylvania Game Commission, as well as the increased safety concerns of the hunters themselves. So, despite Judge Dowling’s hyperbole, stepping into the woods on the first Monday after Thanksgiving is not the equivalent of landing on Omaha Beach.

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