Full Tort vs. Limited Tort in Pennsylvania

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Full Tort vs. Limited Tort in Pennsylvania

When purchasing Pennsylvania automobile insurance, drivers generally choose between full tort and limited tort. That selection can affect whether an injured person may recover noneconomic damages such as pain and suffering after a crash. The rules are fact-specific, and statutory exceptions can apply.

What Is Full Tort?

Full tort generally preserves the right to pursue otherwise recoverable economic and noneconomic damages after a motor-vehicle accident, subject to the facts of the claim, available insurance and Pennsylvania law.

What Is Limited Tort?

Limited tort can restrict recovery of noneconomic damages unless an exception applies. Economic losses, such as certain medical expenses and wage loss, are treated differently from noneconomic damages. The exact effect of a limited-tort election depends on the policy, household status, accident circumstances and applicable law.

What Is the Serious-Injury Exception?

Pennsylvania law recognizes an exception when the injured person suffers a “serious injury,” generally defined by statute as death, serious impairment of body function or permanent serious disfigurement. Whether an injury meets that standard depends on the evidence and circumstances; it is not determined by diagnosis alone.

Are There Other Exceptions to Limited Tort?

Yes. Under 75 Pa.C.S. § 1705(d), a person otherwise bound by limited tort can retain or recover full-tort rights in several circumstances. Statutory examples include when the at-fault driver is convicted of or accepts ARD for DUI arising from the accident, is operating a vehicle registered in another state, intentionally causes the injury within the meaning of the statute, or has failed to maintain required financial responsibility. The statute also addresses certain vehicle-defect claims against businesses that design, manufacture, repair, service or maintain motor vehicles, and injuries sustained while occupying a vehicle other than a private passenger motor vehicle.

Other issues—including whether the injured person is actually bound by a limited-tort election and whether the injury qualifies as a “serious injury”—can independently affect the analysis. The policies and accident facts should therefore be reviewed before assuming limited tort bars noneconomic damages.

Should I Choose Full Tort or Limited Tort?

The choice involves premium cost and the scope of rights preserved after a crash. ZwickLaw generally encourages clients to understand the legal consequences of each option before making a selection and to discuss coverage choices with their insurance professional.

What Should I Review on My Auto Policy?

  • Your tort selection;
  • Bodily-injury liability limits;
  • Uninsured and underinsured motorist coverage;
  • First-party medical benefits;
  • Household vehicles and drivers; and
  • Any stacking, waiver or exclusion documents.

Frequently Asked Questions

Does limited tort mean I can never recover pain and suffering?

No. Limited tort can restrict noneconomic damages, but statutory exceptions may apply. The facts should be evaluated before reaching a conclusion.

Does full tort guarantee a recovery?

No. Full tort preserves broader rights, but liability, causation, damages, insurance coverage and other legal issues still must be established.

Can my household’s policy choices affect my claim?

Potentially. Pennsylvania automobile-insurance issues can involve household policies, resident relatives and other coverage questions. The applicable policies should be reviewed together.

Talk with a Pennsylvania Car Accident Attorney

Learn more about ZwickLaw’s personal injury practice, read what to do after a Pennsylvania car accident, review Pennsylvania UIM stacking-waiver rules after coverage changes, or learn more about Matthew R. Zwick. Call (814) 371-6400 or contact ZwickLaw.

This article provides general information and is not legal advice. Insurance policies, statutory exceptions and individual circumstances can materially change the analysis.

How to Handle a Personal Injury Claim in Pennsylvania

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How to Handle a Personal Injury Claim in Pennsylvania

The period after a serious accident can involve medical treatment, missed work, insurance calls and financial pressure. Preserving evidence and avoiding premature decisions can make it easier to evaluate a Pennsylvania personal injury claim accurately.

Get Appropriate Medical Care

Seek appropriate medical attention and accurately describe your symptoms and accident history. Follow reasonable treatment recommendations. Gaps in treatment can create questions about causation or the extent of an injury, although legitimate reasons for a gap—such as access, cost or medical advice—may also matter.

Preserve Evidence and Records

Keep photographs, witness information, medical records, bills, wage-loss information, insurance correspondence and other documents related to the accident. Evidence can disappear over time, so early preservation is important.

Be Careful with Insurance Requests

An insurer may request a recorded statement, medical authorization, employment records or other information. The obligations differ depending on whether the request comes from your own insurer or another party’s liability carrier and on the applicable policy. Do not sign a broad release or authorization without understanding its scope.

Do Not Settle Before the Claim Can Be Evaluated

An early settlement can arrive before the extent of an injury, future treatment, lost earning capacity, liens or available insurance coverage is known. A signed release can end rights against the released parties. Evaluate the medical prognosis, economic losses, noneconomic damages, liability and coverage before accepting a final settlement.

Do Not Ignore Filing Deadlines

Pennsylvania generally applies a two-year limitations period to many negligence-based personal injury actions, but exceptions, different claims and special notice requirements can change the deadline. Claims involving governmental entities can present additional requirements. Prompt legal review is safer than calculating a deadline from a general article. For an overview of the rules and common exceptions, see Pennsylvania Personal Injury Statute of Limitations.

Practical Personal Injury Checklist

  • Obtain necessary medical care.
  • Report the incident to the appropriate person, business, employer or police agency when required.
  • Preserve photographs, video and physical evidence.
  • Keep a file containing bills, records and insurance communications.
  • Avoid public social-media posts about the accident, injuries or claim.
  • Review insurance policies and available coverage.
  • Do not sign a final release until you understand its effect.

Frequently Asked Questions

Do I have to give the other insurance company a recorded statement?

Not every request from another party’s liability insurer creates the same obligation. Your own insurance policy may impose cooperation requirements. The source of the request, policy language and circumstances should be reviewed.

What if the insurance company denies or undervalues my claim?

A denial or low offer does not necessarily determine the claim’s legal value. Liability evidence, medical causation, damages and insurance coverage should be evaluated before deciding how to respond.

What damages can be recovered?

Depending on the case, recoverable damages can include medical expenses, lost income, diminished earning capacity, pain and suffering and other legally compensable losses.

Talk with a Pennsylvania Personal Injury Attorney

Learn more about ZwickLaw’s personal injury representation, read what to do after a Pennsylvania car accident, or learn about Matthew R. Zwick. Call (814) 371-6400 or email Matt to request a consultation.

This article provides general information and is not legal advice. Deadlines, insurance obligations and available claims depend on the facts and applicable law.

What Is Workers’ Compensation in Pennsylvania?

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What Is Workers’ Compensation in Pennsylvania?

Pennsylvania workers’ compensation is a statutory system that can provide medical and wage-loss benefits for employees who suffer qualifying work-related injuries or occupational diseases. Most claims do not require the employee to prove that the employer was negligent, but coverage, employment status and whether an injury is work-related can still be disputed.

Who Is Covered by Pennsylvania Workers’ Compensation?

Most Pennsylvania employers are required to maintain workers’ compensation coverage, although statutory exceptions exist. Questions can arise about employee versus independent-contractor status, statutory employment, out-of-state injuries and other coverage issues. The facts and the Pennsylvania Workers’ Compensation Act determine whether a particular worker is covered.

What Injuries Can Qualify?

A compensable injury is not limited to a sudden accident. Depending on the evidence, claims can involve traumatic injuries, repetitive-use conditions, occupational diseases and aggravations of preexisting conditions. The employee generally must establish the required connection between the condition and employment.

What Benefits May Be Available?

  • Medical benefits: reasonable and necessary treatment related to the accepted work injury, subject to Pennsylvania workers’ compensation rules.
  • Wage-loss benefits: benefits may be available when a work injury causes a loss of earning power.
  • Specific-loss benefits: Pennsylvania law provides scheduled benefits for certain permanent losses or loss of use.
  • Disfigurement benefits: compensation may be available for qualifying serious and permanent disfigurement of the head, face or neck.
  • Death benefits: qualifying dependents may have rights when a work injury causes an employee’s death.

Current information about Pennsylvania workers’ compensation is available from the Pennsylvania Department of Labor & Industry.

How Quickly Should a Work Injury Be Reported?

Report a work injury to the employer as promptly as possible. Pennsylvania law contains notice requirements, including a general 120-day outside period in many injury cases, but waiting can affect when benefits begin and can create factual disputes. Occupational disease and other circumstances can involve different timing issues.

What Happens If the Claim Is Denied?

A denial does not necessarily end a workers’ compensation claim. Depending on the issue and applicable deadlines, a worker may file a petition with the Pennsylvania Bureau of Workers’ Compensation and present medical, employment and other evidence before a workers’ compensation judge.

Can I Sue My Employer for a Work Injury?

The Workers’ Compensation Act generally provides the exclusive remedy against an employer for covered workplace injuries, subject to statutory exceptions. A separate third-party personal injury claim may sometimes exist when someone other than the employer or a protected co-employee caused the injury.

What Should I Do After a Work Injury?

  1. Report the injury promptly and accurately.
  2. Obtain appropriate medical treatment.
  3. Keep copies of incident reports, work restrictions and medical records.
  4. Track missed work and changes in earnings.
  5. Do not assume a denial or termination notice is legally correct without reviewing it.
  6. Pay attention to all petition, hearing and appeal deadlines.

Frequently Asked Questions

Do I have to prove my employer caused the accident?

Workers’ compensation is generally a no-fault system, so ordinary negligence is not usually the central issue. The worker still must establish the elements required for a compensable claim.

Can workers’ compensation cover a repetitive injury?

Potentially. Conditions caused or aggravated by repetitive work activity may qualify when the medical and factual evidence establishes the required work relationship.

Can I have both workers’ compensation and a personal injury claim?

Sometimes. A third-party claim may exist when a person or company other than the employer is legally responsible. Coordination between the claims can involve liens and other issues. For broader injury-claim guidance, see ZwickLaw’s guide to handling a Pennsylvania personal injury claim.

Talk with a Pennsylvania Workers’ Compensation Attorney

Learn more about ZwickLaw’s workers’ compensation practice, read our workers’ compensation claim tips and guide to Pennsylvania workers’ compensation settlements and Compromise & Release agreements, or learn about Matthew R. Zwick. Call (814) 371-6400 or email Matt to request a consultation.

This article provides general information and is not legal advice. Workers’ compensation coverage, deadlines and benefits depend on current law and individual facts.

Common Estate Planning Mistakes in Pennsylvania

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Common Estate Planning Mistakes in Pennsylvania

Estate planning works best when the documents, beneficiary designations and asset ownership all fit together. Many problems arise not because a person failed to create a will, but because the plan was never updated or key non-probate assets were overlooked.

Failing to Review the Plan After Major Life Changes

Marriage, divorce, births, deaths, changes in assets, relocation, business changes and changes in family relationships can all affect an estate plan. Periodic review helps ensure that the people named as beneficiaries, executors, agents and trustees still reflect the client’s intentions.

Assuming a Will Controls Every Asset

A will generally controls probate assets, not every asset a person owns. Life insurance, retirement accounts, transfer-on-death arrangements and some jointly owned property may pass according to beneficiary designations or ownership rules rather than the will. Those designations should be reviewed together with the estate plan.

Using Outdated Beneficiary Designations

Beneficiary designations can remain in place for years unless they are changed. After divorce, remarriage, death of a beneficiary or other major life events, review the current designations and confirm how Pennsylvania law and the governing account or policy affect them.

Failing to Keep Good Asset Records

An executor cannot efficiently administer property that cannot be located or identified. Maintain an updated inventory of important accounts, real estate, insurance policies, business interests and significant digital assets, together with information showing where key records are kept. Sensitive passwords should be stored securely rather than placed in a will that may become part of a public probate record.

Choosing the Wrong Executor or Agent

The oldest child or closest relative is not automatically the best person to serve. An executor, trustee or agent under a power of attorney should be trustworthy, organized, capable of handling financial and legal responsibilities, and reasonably able to work with the people affected by the plan.

Creating a Trust Without Coordinating Asset Ownership

A trust may not accomplish its intended purpose if assets that should be governed by the trust are never transferred or coordinated with it. Trust funding, beneficiary designations, tax consequences and the remainder of the estate plan should be considered together.

Ignoring Incapacity Planning

An estate plan should also address the possibility that a person becomes unable to manage financial or healthcare decisions. Financial powers of attorney and healthcare planning documents can identify trusted decision-makers and reduce uncertainty during incapacity.

Relying on Generic Forms Without Understanding Execution Requirements

Forms can appear simple, but estate-planning documents can have significant legal consequences. Pennsylvania execution requirements, tax issues, family circumstances and asset ownership should be considered before relying on a generic document.

Practical Estate-Plan Review Checklist

  • Review the will and any trust documents.
  • Confirm executors, trustees and agents are still appropriate.
  • Review beneficiary designations on insurance and retirement accounts.
  • Update the list of assets and liabilities.
  • Review powers of attorney and healthcare documents.
  • Consider recent family, financial or legal changes.
  • Coordinate the plan with business interests, real estate and long-term-care planning where appropriate.

Related Pennsylvania Estate Planning Resources

Frequently Asked Questions

How often should a Pennsylvania estate plan be reviewed?

There is no single required interval, but a review is sensible after major family, financial or legal changes and periodically even when circumstances appear stable.

Does changing a will automatically change beneficiary designations?

Generally, no. Retirement accounts, life insurance and other beneficiary-designated assets should be reviewed separately and coordinated with the overall estate plan.

Is a trust necessary for every Pennsylvania estate plan?

No. Whether a trust is useful depends on the assets, beneficiaries, tax considerations, administration goals and other circumstances.

Talk with a Pennsylvania Estate Planning Attorney

Learn more about ZwickLaw’s estate planning practice, probate and estate administration, and C.J. Zwick. Call (814) 371-6400 or use the ZwickLaw contact page.

This article provides general information and is not legal or tax advice. Estate-planning consequences depend on the documents, assets, family circumstances and current Pennsylvania law.

How to Protect the Value of a Personal Injury Claim in Pennsylvania

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How to Protect the Value of a Personal Injury Claim in Pennsylvania

A personal injury claim is evaluated based on evidence, liability, medical causation, damages and available insurance coverage. There is no guaranteed formula for “maximizing” a claim, but there are practical steps that can help preserve important evidence and reduce avoidable disputes.

Preserve Evidence Early

Photographs, video, damaged property, incident reports and scene conditions can change or disappear quickly. When it is safe and practical, document the location, vehicles or property involved, visible injuries and any relevant conditions. Keep original files rather than relying only on social-media copies.

Identify Witnesses

Obtain names and reliable contact information for people who witnessed the incident or its immediate aftermath. Independent witnesses can become important if the parties later disagree about how an accident occurred.

Get Appropriate Medical Treatment

Seek appropriate care and accurately describe symptoms and accident history. Follow reasonable treatment recommendations. A medical record can help establish the nature of an injury, but treatment decisions should be based on health needs rather than an attempt to influence claim value.

Keep Records of Economic Losses

Preserve medical bills, pharmacy receipts, wage-loss records, disability notes, repair invoices, mileage records and other documentation of accident-related losses. Claims involving diminished earning capacity or future treatment may require additional evidence.

Use Care with Insurance Communications

Insurance adjusters may request recorded statements, medical authorizations or broad documentation. Your obligations can differ depending on whether the request comes from your own insurer or another party’s carrier. Understand the purpose and scope of a request before providing sensitive information or signing a release.

Avoid Premature Settlement

An early settlement can be difficult to evaluate before the medical prognosis, future treatment, lost income, liens and available insurance are understood. A final release can end rights against the released parties, so the consequences should be clear before it is signed.

Practical Checklist

  • Document the scene and injuries when appropriate.
  • Keep witness contact information.
  • Follow medically appropriate treatment.
  • Save bills, wage records and insurance correspondence.
  • Avoid public posts that could be misunderstood or taken out of context.
  • Review all potentially applicable insurance policies.
  • Do not sign a final release until you understand its effect.

Frequently Asked Questions

Does missing a medical appointment destroy a personal injury claim?

No. A gap in treatment can raise questions, but the reason for the gap matters. Cost, access, work obligations and medical advice may all be relevant.

Should I negotiate directly with the insurance adjuster?

You may communicate with an insurer, but understand that a liability adjuster represents the insurance company’s interests. Before providing broad authorizations or accepting a final settlement, consider whether the claim has been fully evaluated.

What determines the value of a personal injury case?

Common factors include liability, medical causation, the severity and duration of injuries, economic losses, future consequences, credibility, available insurance and the law governing the claim.

Talk with a Pennsylvania Personal Injury Attorney

Learn more about ZwickLaw’s personal injury practice, our guides on handling a personal injury claim, insurance-adjuster tactics, and Pennsylvania personal-injury filing deadlines, and Matthew R. Zwick. Call (814) 371-6400 or email Matt to request a consultation.

This article provides general information and is not legal advice. Every claim depends on its facts, applicable law and insurance coverage.

Common Complaints Against an Executor in Pennsylvania

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Common Complaints Against an Executor in Pennsylvania

An executor, also called a personal representative, has significant responsibilities when administering a Pennsylvania estate. Disagreements often arise because beneficiaries do not understand the administration process, communication is poor, or there are genuine concerns about how estate assets are being handled.

What Duties Does an Executor Have?

An executor generally must identify and safeguard estate property, address valid debts and expenses, handle required tax matters, maintain appropriate records, make distributions in accordance with the will and Pennsylvania law, and account for the administration when required. A personal representative acts in a fiduciary capacity and must administer the estate for proper purposes rather than personal advantage.

Conflict of Interest or Self-Dealing

An executor may also be a beneficiary; that fact alone does not establish wrongdoing. Problems can arise when the executor uses estate property for personal purposes, favors personal interests over fiduciary duties, or enters transactions that create an improper conflict. The particular transaction and the executor’s authority should be evaluated before alleging a breach.

Failure to Protect or Properly Manage Estate Assets

Beneficiaries may raise concerns when property is not secured, insurance lapses, assets disappear, bills are not addressed, records are inadequate or estate property is sold under questionable circumstances. Not every decline in asset value is misconduct, but an executor should be able to explain significant transactions and administration decisions.

Unreasonable Delay

Estate administration can take time because of creditor issues, tax filings, real-estate sales, litigation or other complications. Delay alone does not necessarily establish a breach. An unexplained or avoidable delay, however, can lead beneficiaries to seek information, an accounting or other relief.

Lack of Communication

Beneficiaries often become concerned when they receive little information about the status of an estate. Although an executor is not necessarily required to provide constant updates, clear communication and organized records can prevent many disputes.

Disputes Over Executor Compensation

A Pennsylvania personal representative may be entitled to reasonable compensation. Whether compensation is reasonable can depend on the size and complexity of the estate, work performed, results obtained and other circumstances. Beneficiaries can challenge compensation they believe is excessive.

What Can a Beneficiary Do About Suspected Executor Misconduct?

The appropriate response depends on the issue. Options may include requesting information, seeking an accounting, objecting to an account, asking the Orphans’ Court for appropriate relief, or in serious circumstances seeking removal or surcharge. Court relief requires a factual and legal basis; dissatisfaction alone is not necessarily enough. For broader context on how Pennsylvania estates are planned before administration begins, see ZwickLaw’s guide to estate planning in Pennsylvania.

When Can a Pennsylvania Executor Be Removed?

Under 20 Pa.C.S. § 3182, the Orphans’ Court has exclusive power to remove a personal representative on specified grounds. Those grounds include wasting or mismanaging the estate, failure to perform a duty imposed by law, certain incapacity or residency circumstances, and other situations in which the interests of the estate are likely to be jeopardized by the fiduciary’s continued service.

Removal is not automatic merely because beneficiaries disagree with an executor’s judgment. The court evaluates the conduct, the risk to the estate and the statutory grounds. Under 20 Pa.C.S. § 3183, a party in interest may petition for removal, and the court can require the personal representative to appear and show cause why removal should not occur.

What Is a Surcharge Against an Executor?

A surcharge is a monetary remedy that can be imposed against a fiduciary for a loss caused by breach of duty. In practical terms, the issue is whether the executor’s conduct caused the estate to lose money or property that should have been preserved. A surcharge claim therefore usually requires evidence of both improper conduct and resulting loss rather than mere dissatisfaction with the administration.

What Evidence Matters in an Executor Dispute?

  • estate bank and brokerage statements;
  • receipts, invoices and canceled checks;
  • real-estate listings, appraisals and settlement statements;
  • communications with beneficiaries and professionals;
  • tax returns and inheritance-tax filings;
  • the executor’s account and supporting schedules; and
  • documents showing any personal transactions involving estate property.

Organized records are important both for beneficiaries evaluating a possible claim and for executors defending reasonable administration decisions.

Related Pennsylvania Estate Resources

How Can Executors Reduce the Risk of Disputes?

  • Keep estate funds separate from personal funds.
  • Maintain records of receipts, expenses and distributions.
  • Secure and insure estate property when appropriate.
  • Communicate material developments to interested parties.
  • Avoid undocumented loans, transfers or personal use of estate assets.
  • Obtain legal, tax or valuation advice when the estate requires it.

Talk with a Pennsylvania Estate Administration Attorney

ZwickLaw assists executors and beneficiaries with probate and estate administration, estate planning and estate disputes. Learn more about C.J. Zwick, call (814) 371-6400, or contact ZwickLaw.

This article provides general information and is not legal advice. Fiduciary duties, court procedures and remedies depend on the facts of the estate and current Pennsylvania law.

Pennsylvania Informed Consent Law: What Patients Should Know

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Pennsylvania Informed Consent Law: What Patients Should Know

Pennsylvania informed consent and medical malpractice

What Is Informed Consent?

Informed consent generally requires that a patient receive the information Pennsylvania law considers material to the decision whether to undergo a covered procedure, including relevant risks, alternatives and expected benefits. The precise disclosure requirements depend on the procedure and the governing statute.

How Pennsylvania Informed-Consent Law Has Changed

In Shinal v. Toms, 162 A.3d 429 (Pa. 2017), the Supreme Court of Pennsylvania held that the physician personally had to satisfy the duty to obtain informed consent under the law then in effect. Pennsylvania later amended the MCARE Act. Under the 2021 amendment, 40 P.S. § 1303.504 permits a physician, in specified circumstances, to delegate the task of obtaining a patient’s informed consent to a qualified practitioner who has knowledge of the patient’s condition and the covered procedure and otherwise satisfies the statute. The physician remains responsible for the overall care of the patient and must determine that the practitioner is qualified to obtain the consent.

Accordingly, the broad statement that informed consent can never be delegated is no longer an accurate description of current Pennsylvania law. Whether legally sufficient informed consent was obtained depends on the procedure, the information provided, who provided it, and the circumstances of the patient’s care.

Pennsylvania Informed Consent in Medical Malpractice Cases

Section 504 of Pennsylvania’s MCARE Act does not apply to every form of medical treatment. Except in emergencies, it requires informed consent before the procedures specifically identified by the statute: surgery (including related anesthesia), radiation or chemotherapy, blood transfusions, insertion of a surgical device or appliance, and specified experimental uses of medications or devices. Consent is informed when the patient or authorized representative receives a description of the covered procedure and the risks and alternatives that a reasonably prudent patient would require to make an informed decision.

Current Section 504 permits the task of obtaining informed consent to be performed by the physician or, when the statutory requirements are satisfied, by a qualified practitioner. The statute also addresses reliance on consent information provided by another qualified practitioner and preserves a patient’s ability to request that the physician answer questions or obtain the consent personally.

Pennsylvania also enacted 40 P.S. § 1303.504a, effective January 22, 2024, addressing certain pelvic, rectal and prostate examinations performed on anesthetized or unconscious patients in professional instruction or clinical training programs. Subject to statutory exceptions, that provision requires specific informed consent in verbal and written form before such an examination is knowingly performed.

What Shinal v. Toms Still Teaches

Shinal remains an important Pennsylvania informed-consent decision and explains why meaningful communication about material risks, alternatives and the proposed procedure matters. However, the later statutory amendment changed the rule concerning who may perform the task of obtaining informed consent. Current claims should therefore be evaluated under the MCARE Act as it exists at the time of the relevant medical care, rather than relying on the 2017 decision alone.

Background of Shinal v. Toms

Mrs. Shinal and her husband sued the defendant, Dr. Toms, and Geisinger Clinic in a medical malpractice suit. Mrs. Shinal, who had been diagnosed with a recurrent non-malignant tumor around her brain, alleged that Dr. Toms failed to properly inform her of the risks associated with a surgery to remove the tumor.

Dr. Toms denied breaching his duty to inform Mrs. Shinal. He countered that in a consultation with the Shinals on November 26, 2007, he had explained the risks of the different approaches to the surgery. These risks included possible damage or injury to Mrs. Shinal’s carotid artery and optic nerve.

Dr. Toms felt that Mrs. Shinal had understood the risks and wanted him to try and totally remove the tumor, which, though risky, would give her a better shot at long-term survival. Besides, Mrs. Shinal had a telephone conversation with Dr. Toms’ physician assistant (PA) on December 19, 2007, and the PA had gone through the risks of the procedure with her again at that time.

On January 31, 2008, Mrs. Shinal had an operation to remove the tumor, during which Dr. Toms perforated her carotid artery. As a result of the perforation, Mrs. Shinal sustained a hemorrhage, stroke, brain injury, and partial blindness. This medical malpractice lawsuit ensued shortly thereafter.

Historical Jury Instruction in Shinal

The Supreme Court was invited to overrule the decisions of the trial court and the Superior Court, both of which exonerated the Defendant. The reasoning at the lower court and Superior Court had been that the Defendant was not obligated to personally inform the Plaintiff of all the facts, risks, and complications of the procedure. The Superior Court further ruled that the Defendant doctor could be assisted in this duty by his PA.

The trial court judge, before the finding of the jury, directed that the jury could consider any information provided to Mrs. Shinal by “any qualified person” working as an assistant to Dr. Toms.

At the time Shinal was decided, however, the Supreme Court held that the physician was personally required to satisfy the informed-consent duty and ordered a new trial because of the jury instruction. That aspect of Shinal must now be read in light of the General Assembly’s 2021 amendment to Section 504, which permits delegation to a statutorily qualified practitioner under the circumstances described above.

Frequently Asked Questions

Must the physician personally obtain informed consent in Pennsylvania?

Not in every circumstance under current law. Section 504 permits the task to be performed by a statutorily qualified practitioner when its requirements are satisfied, although the physician retains responsibilities specified by the statute and the patient may request physician involvement.

Does Pennsylvania’s MCARE informed-consent statute apply to every medical treatment?

No. Section 504 identifies particular procedures, including surgery and related anesthesia, radiation or chemotherapy, blood transfusions, insertion of surgical devices or appliances, and specified experimental uses of medications or devices.

Are there special consent rules for examinations performed while a patient is anesthetized?

Yes in certain training settings. Section 504a, effective January 22, 2024, addresses specified pelvic, rectal and prostate examinations on anesthetized or unconscious patients and requires specific verbal and written informed consent subject to statutory exceptions.

Questions About Pennsylvania Medical Malpractice or Informed Consent

For questions relating to an medical malpractice issue, contact Matthew R Zwick, founding partner of ZwickLaw, at (814) 371-6400 or mrz@zwick-law.com, to schedule a legal consultation and free case analysis.  Learn more about ZwickLaw’s Pennsylvania medical malpractice practice.

*The use of the Internet, Facebook and/or any other form of social media communication with the firm or any individual member of the firm does not establish an attorney-client relationship.  Time-sensitive information should be directed immediately to the office of Zwick Law at (814) 371-6400.

 

Pennsylvania UIM Stacking Waivers After an Increase in Coverage

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Pennsylvania UIM Stacking Waivers After an Increase in Coverage

Under Pennsylvania law, uninsured and underinsured motorist coverage can involve “stacking,” which generally allows the limits available for multiple insured vehicles to be combined when stacking applies. Pennsylvania law also permits an insured to waive stacking by signing the statutory waiver.

What Did Barnard v. Travelers Decide?

In Barnard v. Travelers Home & Marine Insurance Company, the Pennsylvania Supreme Court held in 2019 that when an insured increases UIM coverage limits for multiple vehicles on an existing policy, that increase constitutes a new “purchase” of UIM coverage for purposes of 75 Pa.C.S. § 1738(c). Under those circumstances, the insurer must offer the insured the opportunity to waive stacking of the new aggregate amount of coverage.

The decision answered a certified question from the United States Court of Appeals for the Third Circuit. It is important to distinguish the final Pennsylvania Supreme Court decision from the earlier federal district-court ruling that preceded it.

What Is Stacking?

Stacking can increase the amount of uninsured or underinsured motorist coverage available by combining applicable limits for more than one insured vehicle. The precise amount and availability of stacked benefits depend on the policy, number of vehicles, waivers, household circumstances and Pennsylvania law.

What Happened in the Barnard Case?

Michelle Barnard insured two vehicles and initially purchased $50,000 in UIM coverage per vehicle. She signed a waiver of stacking. She later increased the UIM limits on each vehicle to $100,000 but did not execute a new stacking waiver at that time. After she was injured by an underinsured motorist, a dispute arose over whether the earlier waiver remained effective for the increased limits.

Why Did the Pennsylvania Supreme Court Require a New Waiver?

The Court concluded that paying for increased UIM limits constituted a purchase of additional UIM coverage. Because the aggregate amount that could be stacked had increased, the insurer was required to offer the insured an opportunity to waive stacking of that new amount.

Does Every Policy Change Require a New Stacking Waiver?

No. Barnard addressed an increase in UIM coverage limits for multiple vehicles. The Court distinguished that situation from changes that merely increase premiums without increasing the amount of UIM coverage, such as some inflationary premium changes or replacing an insured vehicle while maintaining the same coverage limits.

What Did Franks v. State Farm Clarify?

In Franks v. State Farm Mutual Automobile Insurance Co., 292 A.3d 866 (Pa. 2023), the Pennsylvania Supreme Court clarified that not every change to a multi-vehicle policy is a new “purchase” under Section 1738(c). Removing a vehicle under circumstances that do not alter the pre-existing UM/UIM coverage or cost for the remaining vehicles does not, by itself, require a new stacking waiver. Read together, Barnard and Franks focus the inquiry on whether the insured actually acquired additional UM/UIM coverage, rather than whether the policy merely changed in some respect.

Vehicle additions, substitutions, removals and changes in coverage limits therefore should be evaluated based on the actual policy transaction and current Pennsylvania law rather than a blanket rule that every policy amendment requires a new waiver.

2026 Pennsylvania Update

In Erie Insurance Exchange v. Beutler, No. 2095 EDA 2025 (Pa. Super. June 16, 2026), a non-precedential memorandum decision, the Pennsylvania Superior Court applied Barnard and Franks and affirmed that deleting one vehicle and adding a replacement vehicle, while keeping the same number of insured vehicles and the same amount of UIM coverage, did not constitute a new “purchase” under Section 1738(c). Although Beutler is not precedential authority, its reasoning illustrates the continuing focus on whether the insured actually acquired additional UM/UIM coverage—not merely whether the policy was amended or the insurer used particular transaction terminology.

What Should Pennsylvania Drivers Review?

  • Current uninsured and underinsured motorist limits;
  • Whether stacking has been accepted or waived;
  • How many vehicles are insured under the policy;
  • Any changes made to UIM or UM limits;
  • Copies of stacking waivers and other coverage-selection forms; and
  • Policies covering other vehicles or household members that may affect a claim.

Frequently Asked Questions

Does an old stacking waiver always remain effective after coverage is increased?

No. Under Barnard, an increase in UIM limits for multiple vehicles can require the insurer to offer a new stacking waiver for the increased aggregate coverage.

Does Barnard mean stacked coverage is automatically available in every case?

No. The effect of a waiver and the amount of available coverage depend on the policy documents, vehicles, limits, household facts and other applicable law.

Should I keep copies of my coverage-selection forms?

Yes. Stacking waivers and other signed coverage forms can become important if a coverage dispute arises after an accident.

Learn More About Pennsylvania Auto Insurance Claims

Read ZwickLaw’s guide to full tort versus limited tort in Pennsylvania, review what to do after a Pennsylvania car accident, and review the firm’s personal injury practice, or learn more about Matthew R. Zwick.

Contact ZwickLaw

For questions concerning a Pennsylvania automobile-insurance or injury claim, call (814) 371-6400, email mrz@zwick-law.com, or use the ZwickLaw contact page.

This article provides general information and is not legal advice. Insurance coverage disputes depend on the policy language, signed forms, facts and current Pennsylvania law.

Insurance Adjuster Tactics That Can Reduce a Pennsylvania Injury Claim

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Insurance Adjuster Tactics That Can Affect a Pennsylvania Injury Claim

After an accident, an insurance adjuster may contact an injured person quickly to gather information, investigate liability and evaluate the claim. An adjuster represents the insurance carrier’s interests. Understanding the process can help an injured person avoid giving incomplete information, signing an overly broad authorization or settling before the claim can be reasonably evaluated.

Insurance claim negotiation and personal injury recovery

Early Settlement Offers

An early offer is not automatically unfair, but it can arrive before the medical prognosis, future treatment, wage loss, liens or available insurance coverage are fully understood. Before accepting a final settlement, consider whether the extent of the injuries and losses can be evaluated with reasonable confidence.

Settlement Checks and Releases

Insurance settlements commonly involve a written release. The effect of accepting or negotiating a check depends on the accompanying documents and circumstances, so an injured person should not assume that every payment has the same legal effect. Read the release and settlement terms carefully before accepting a final resolution.

Recorded Statements

An adjuster may ask for a recorded statement about how the accident happened and the injuries involved. Obligations can differ depending on whether the request comes from your own insurer or another party’s liability carrier. Your own policy may impose cooperation duties. Before giving a recorded statement, understand who is requesting it, why it is being requested and what obligations apply.

Broad Medical Authorizations

An insurer may request authorization to obtain medical records. Medical history can be relevant to causation and damages, but the scope of an authorization matters. Review what records, providers and time periods the authorization permits the insurer to obtain.

Requests for Extensive Documentation

Insurers may reasonably need medical records, bills, wage information and other evidence to evaluate a claim. If a request appears unusually broad or unrelated, clarify why the information is being requested before providing sensitive material.

Delay and Filing Deadlines

Negotiations with an insurer generally do not eliminate the need to comply with legal deadlines. Pennsylvania generally applies a two-year limitations period to many negligence-based personal injury actions, but exceptions, other causes of action and special notice requirements can alter the deadline. Claims involving governmental entities can involve additional requirements. Do not rely on ongoing settlement discussions as a substitute for determining the applicable deadline. For more detail, see our guide to the Pennsylvania personal injury statute of limitations.

What Should You Do When an Adjuster Calls?

  • Be accurate and avoid guessing about facts you do not know.
  • Keep copies of correspondence and documents you provide.
  • Understand whether the adjuster represents your insurer or another party’s insurer.
  • Review medical authorizations and releases before signing.
  • Do not accept a final settlement until you understand what rights will be released.
  • Track applicable filing and notice deadlines independently of negotiations.

Frequently Asked Questions

Is the insurance adjuster my advocate?

No. An adjuster investigates and evaluates claims for the insurance company. That does not mean every adjuster acts improperly, but the adjuster does not serve as the injured person’s attorney or fiduciary.

Do I have to accept the first settlement offer?

No. A settlement is an agreement. Whether an offer is reasonable depends on liability, injuries, damages, coverage and other facts.

Can I keep negotiating while the statute of limitations is approaching?

Negotiations may continue, but an injured person should not allow a filing deadline to expire based on an assumption that negotiations will protect the claim.

Learn More About Pennsylvania Injury Claims

Read ZwickLaw’s guide to the Pennsylvania personal injury statute of limitations and verified guides on protecting the value of a personal injury claim, what to do after a Pennsylvania car accident, and full tort versus limited tort. You can also review the firm’s personal injury practice and Matthew R. Zwick’s attorney profile.

Contact ZwickLaw

To discuss a Pennsylvania personal injury claim, call (814) 371-6400, email mrz@zwick-law.com, or use the ZwickLaw contact page.

This article provides general information and is not legal advice. Insurance obligations, deadlines and available claims depend on the policy, facts and applicable law.

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