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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. Pennsylvania law provides other situations in which a limited-tort insured may be able to pursue noneconomic damages. Because these exceptions are specific and can depend on facts such as the conduct or insurance status of the other driver, the policy and accident should be reviewed before assuming that limited tort bars a claim.

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, 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.

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.

Talk with a Pennsylvania Workers’ Compensation Attorney

Learn more about ZwickLaw’s workers’ compensation practice, read our workers’ compensation claim tips, 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.

Pennsylvania Informed Consent Law: What Patients Should Know

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Doctor Hospital Lawsuit in DuBois, PA

What is “informed consent?”

Informed consent means a physician must inform the patient of all material risks, complications, facts, and benefits involved in any proposed, non-emergency surgical treatment. This allows the patient to make an informed decision about whether to undergo surgical intervention.

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. Effective in 2022, 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 procedure and the risks and alternatives required by 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.

PA Law on Informed Consent in Medical Malpractice Lawsuits

Under Pennsylvania law, before a physician conducts any proposed, non-emergent treatment on a patient, the patient must receive information about the nature of the proposed procedure, as well as the expected and possibly unexpected risks and results. Generally, in Pennsylvania, similar to the majority of other jurisdictions, a physician has an affirmative duty to advise a patient of the facts, risks, complications, and alternatives to a procedure. This duty is required under Pennsylvania’s Medical Care Availability and Reduction of Error (MCARE) Act. With this information, a patient can make an educated or “informed” decision regarding the available options and/or alternatives to medical procedures.

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 Case

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.

Jury Instruction: Informed Consent

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.

However, the Supreme Court, with a majority of four justices concurring, held that a doctor was personally obligated to inform a patient of the risks and benefits of the procedure, as well as obtain her informed consent to proceed with the proposed treatment. The case was, therefore, ordered to be retried because, in the opinion of the Supreme Court, the trial court judge was wrong in his instructions to the jury.

Legal Assistance for Doctor Hospital Lawsuit

For questions relating to an medical malpractice issue, contact Matthew R Zwick, partner of Zwick Law, at (814) 371-6400 or mrz@zwick-law.com, to schedule a legal consultation and free case analysis.  At Zwick Law, we’re always here for you.

*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. Other policy changes can raise different legal questions.

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 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.

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 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.

Tips for Handling a Workers’ Compensation Claim

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Tips for Handling a Workers’ Compensation Claim in Pennsylvania

A work injury can create medical, employment and financial problems at the same time. Pennsylvania workers’ compensation may provide benefits for qualifying work-related injuries and occupational diseases, but claims can involve disputes over notice, medical causation, disability, employment status and the scope of the accepted injury.

Pennsylvania workers compensation claim

Report the Injury Promptly

Tell the employer about a work injury as soon as reasonably possible and accurately explain when, where and how it occurred. Pennsylvania law contains notice requirements, including a general 120-day outside period in many injury cases, but earlier notice can affect when benefits begin and can reduce factual disputes.

Get Appropriate Medical Treatment

Seek appropriate care and give healthcare providers an accurate history of the work incident and symptoms. Pennsylvania workers’ compensation rules can affect the choice of medical providers during portions of a claim, particularly when an employer has complied with statutory provider-list requirements. Do not assume that every claim has identical treatment rules.

Identify Witnesses and Preserve Evidence

Keep names and reliable contact information for witnesses to the incident or relevant working conditions. Preserve photographs, incident reports, work restrictions, medical documents, correspondence and other records relating to the injury.

Be Accurate and Consistent

Describe the incident and symptoms truthfully and as accurately as possible to supervisors, healthcare providers, insurers and attorneys. Minor differences do not automatically defeat a claim, but significant inconsistencies can create disputes over credibility or medical causation. If you do not remember a detail, avoid guessing.

Understand Insurance Requests

A workers’ compensation carrier may request information, medical examinations or statements as part of its investigation and administration of a claim. Some requests can involve legal obligations and deadlines. Before signing broad authorizations or giving a recorded statement you do not understand, consider obtaining advice about the request and your responsibilities.

Keep Track of Work Status and Earnings

Save disability notes, return-to-work restrictions, wage records and communications about modified duty. Wage-loss benefits can depend on earning power and work status, so accurate documentation matters when an employee returns to work at reduced hours or wages.

Do Not Ignore Workers’ Compensation Documents

Notices accepting, denying, modifying, suspending or terminating benefits can have important consequences. Petitions, hearing notices and decisions also carry deadlines. Review workers’ compensation documents promptly rather than assuming that a carrier’s position is final.

Practical Workers’ Compensation Checklist

  • Report the injury promptly.
  • Obtain appropriate medical treatment.
  • Preserve incident reports and witness information.
  • Keep medical restrictions and wage records.
  • Read forms and authorizations before signing.
  • Save copies of all workers’ compensation notices.
  • Pay attention to petition, hearing and appeal deadlines.

Frequently Asked Questions

Does a work injury have to result from one sudden accident?

No. Depending on the evidence, Pennsylvania workers’ compensation claims can involve traumatic injuries, repetitive-use conditions, occupational diseases and aggravations of preexisting conditions.

What if my workers’ compensation claim is denied?

A denial does not necessarily end the matter. Depending on the circumstances and applicable deadlines, an injured worker may be able to file a petition and present evidence before a Pennsylvania workers’ compensation judge.

Should I quit my job after a work injury?

Employment decisions can affect wage-loss and other issues. Before resigning because of an injury or work restrictions, consider the potential workers’ compensation consequences.

Learn More About Pennsylvania Workers’ Compensation

Read ZwickLaw’s verified guide explaining what Pennsylvania workers’ compensation is, review the firm’s Workers’ Compensation practice, or learn more about Matthew R. Zwick.

Contact ZwickLaw

To discuss a Pennsylvania work-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. Workers’ compensation rights, medical-treatment rules, deadlines and benefits depend on current Pennsylvania law and individual facts.

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