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In Pennsylvania, Your Doctor Must Personally Obtain Your Informed Consent

 

What is “informed consent?”  Informed consent means that a physician must inform the patient of all material risks, complications, facts and benefits involved in any proposed, nonemergency surgical treatment, so that the patient can make an informed decision about whether to undergo surgical intervention.

Informed Consent

The Supreme Court of Pennsylvania recently decided that doctors in Pennsylvania have an affirmative duty to obtain their patients’ informed consent, and this affirmative duty is non-delegable.  As such, this duty is only discharged when the physician personally obtains the client’s consent. The Supreme Court issued this ruling in Shinal v Toms, 162 A.3d 429 (Pa. 2017).

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

According to the majority opinion of the Supreme Court in Shinal, the aforesaid information must be given, and the consent obtained, by the physician personally (rather than by a physician assistant, nurse or medical aide).  In other words, unless the procedure-related information is provided to a patient by a treating physician, the duty to adequately inform is not discharged.

Background

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, denying that he had breached his duty to inform Mrs. Shinal, countered that in a consultation he conducted 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 Ms. Shinal’s carotid artery and optic nerve.

According to Dr. Toms, he 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 of 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, as in the opinion of the Supreme Court, the trial court judge was wrong in his instructions to the jury.

The aggressive attorneys at Zwick Law are standing by to provide you with the legal advice and representation that you need and deserve.  We offer personalized attention and we work tirelessly to maximize the value of our clients’ injury claims.  Our experienced medical malpractice attorneys are always here to discuss your case and provide you with the peace of mind you desrve.

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.[1]

 

 

[1] Disclaimer: 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.

 

What is Workers’ Compensation?

Have you been injured on the job? Maybe you twisted your ankle while rushing into the elevator for that meeting with the boss or sprained your wrist while trying to beat that deadline. If you have suffered a work-related injury, you may be entitled to benefits under the Pennsylvania workers’ compensation laws.

workers' compensation

workers’ compensation

The Pennsylvania Workers’ Compensation Act (the “Act”) was enacted to provide no fault recourse for workers who suffer injuries in the workplace.  The Act ensures that no worker will go without some form of compensation for workplace-related injuries. The Act thus requires that all Pennsylvania employers register with an insurer for workers’ compensation coverage.

Every Pennsylvania worker is covered by the Act.  So, even if your employer has failed to procure workers’ compensation insurance coverage, you are still able to obtain compensation benefits under the Uninsured Employer Guaranty Fund.

What is workers’ compensation?

Workers’ compensation laws and regulations provide for you in the event of work-related injuries.  The Act provides financial, medical and other related benefits and support to workers who have been injured on the job.

The Act ensures that injured workers can obtain no-fault compensation for work-related injuries.  However, this “no-fault” insurance coverage comes with a compromise — your right to sue your employer for the injury.

What are some of the requirements to obtain workers’ compensation?

Before you can be eligible to receive benefits under the Pennsylvania workers’ compensation law, you must fulfil some requirements

  1. There must be an employer/employee relationship.

While this is usually straightforward, there are some situations when it is difficult to determine whether the relationship is an employment relationship under the law. For instance, an independent contractor does not qualify as an employee. For the purpose of determining whether a person qualifies as an employee, four things are usually considered:

  • The right of the employee to select the employer;
  • The employer’s right to “sack” the employee;
  • The employer’s power to direct the manner of performing the job; and
  • The employer’s power to control the employee;

Even if you don’t qualify as an employee under these conditions, you may still be an employee under the definition of a “statutory employer”.  For instance, if you are an employee of a sub-contractor that has been hired by a general contractor for a construction-type job, you may be entitled to compensation for work-related injuries. Your employer in this case is a “statutory employer.”

  1. The injury must have occurred under Pennsylvania jurisdiction

If you are hired in Pennsylvania, but often have to work in other states, it won’t matter whether the work injury happen in Pennsylvania, or some other jurisdiction.

  1. You must have suffered the injury in the course of employment

Each situation is usually decided on its merits, on a case-by-case basis. You don’t have to be actively working when the injury occurs, though. You could be playing tennis as part of the company’s sports team or attending a party for the company and possibly still be covered. The important requirement is that you must have been furthering the interest of your employer.

What type of workers’ compensation are you entitled to receive?

Under the Act, you are generally compensated for any disability that occurs as a result of work-related injuries.

Disability, under the Pennsylvania workers’ compensation law, is defined by work loss. A disability may result in total disability, temporary total disability or temporary partial disability. It is total disability scenarios when you are completely unable to work because of the work injury.

The Act defines an “injury” to include any condition caused by an accident or activity at work. As such, injuries need not be caused by accidents alone. Injuries caused by having to do the same thing over and over, such as typing with your back bent or injuries cause by abnormal working conditions, would also qualify as an “injury.”

What benefits can you receive under the Pennsylvania workers’ compensation law?

Depending on your injury, you may be entitled to any one or more of the following benefits:

  • Medical benefits. This would typically include the cost of obtaining medical treatment for the injury.
  • Wage benefits. You are generally entitled to compensation of up to two-thirds, sometimes more, of your average weekly wage. These benefits are not taxable.
  • Death benefits. This would be applicable only in the event of death caused by a wok-related injury. These benefits would be paid to the family or survivors of the employee.
  • Scarring benefits. This compensation is applicable in the event of disfigurement caused by work injury.
  • Specific loss benefits. If loss of limbs is involved, compensation would be payable for that specific loss. This does not mean that the whole limb must be lost though. It would suffice if it is shown that it has been made useless for the job.

How can you obtain workers’ compensation?

The Pennsylvania workers’ compensation law requires that workers who suffer any work-related injury must report the injury to their employer within 120 days – this period starts to run from the date of the injury.  You should always report a work-related injury to your employer, and make sure that an accident report is generated.

Your employer then either accepts or denies the claim. If the claim is denied, you can file a lawsuit to establish your work-related claim. You do this by filing a Claim Petition.

While there is no law that says you can’t fight for the claim on your own, it is generally a good idea to get in touch with an experienced workers’ compensation attorney from the moment you get injured.  The experienced worker’s compensation lawyers at Zwick Law understand how vital quality representation is to your claim.  We are prepared to review your situation and take over the time-consuming and stressful task of negotiating and fighting for you.

For questions relating to a work-related injury, 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.[1]

 

[1] Disclaimer: 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.

 

Zwick Law Develops New Pennsylvania Adverse Possession Law in Weible v. Wells, 156 A.3d 1220

By decision of the Pennsylvania Superior Court, Matthew R. Zwick, founding partner of Zwick Law, representing Elizabeth “Louise” Wells and her late husband, William Wells, prevailed on appeal, reversing the trial court’s decision regarding the application of the adverse possession doctrine in Pennsylvania.  The Weible v. Wells decision (reported at 156 A.3d 1220) establishes and creates clear legal principles and guidelines for applying the doctrine of adverse possession in Pennsylvania.

In this case, the Superior Court was tasked with deciding whether the statutorily prescribed period to adversely possess land in Pennsylvania is tolled (paused) or started anew (reset) when property is owned and used for a public purpose by political subdivisions (i.e., counties, townships, boroughs, etc.) during the 21-year statute of limitations for the title owner of the land to file an ejectment action against the adverse possessor.  The Superior Court, agreeing fully with Attorney Zwick, held that the 21-year statutory period was merely tolled, and did not completely reset, under the circumstances presented in this case.

Case Background

This civil case was commenced by Rodger Weible, Louise’s next door neighbor, in August 2009, when Weible filed a complaint in ejectment against Louise and her husband, arguing that the Wellses installed landscaping and a driveway that allegedly encroached upon a portion of Weible’s yard.

Louise and her husband purchased their home in Reynoldsville, Pennsylvania, in August 1965. Thereafter, the Wellses caused landscaping and a driveway to be installed at their residence in 1974 and 1979, respectively.  The Wellses’ landscaping and driveway remained in substantially the same condition and configuration from the respective dates of installation through the time of trial in September 2015 (and as of the date of this article).

From May 30, 1995 through December 22, 1998, the property now owned by Weible was owned by Jefferson County and Clearfield County, political subdivisions of the Commonwealth of Pennsylvania, operating through the Clearfield-Jefferson Mental Health/Mental Retardation Program.  Weible purchased the property from Jefferson and Clearfield Counties by deed dated December 22, 1998.

The Wellses and Weible lived next to each other without incident until 2008.  In 2008, a tree fell and caused damage to powerlines surrounding the residential lots.  Louise and her husband offered to pay the Borough of Reynoldsville to repair the powerlines; however, they were informed that the fallen tree had come from Weible’s property and that they were not responsible for the cost of repairs.  After the Borough attempted to collect payment from Weible for the damage, Weible hired a local surveyor to survey his property to delineate the boundary line between his lot and the lot owned by the Wellses.  When Weible discovered that the Wellses’ landscaping and driveway appeared to encroach upon property that he believed he owned, Weible requested that the Wellses remove the landscaping.  The instant legal battle ensued.

The Trial Court Proceedings

Weible’s civil complaint was intended to eject, or remove, the Wellses and their landscaping and driveway from the disputed property.  The Wellses raised the defense of adverse possession and countersued Weible asserting ownership of the property in question by virtue of adverse possession.  After a non-jury trial on September 11, 2015, the trial court of Jefferson County, Pennsylvania, found that, because Weible had received his residential lot from a political subdivision (i.e., Jefferson and Clearfield Counties), the Wellses were required to establish their exclusive, adverse possession of the property for 21 years from the date of conveyance from the Counties to Weible in 1998.

As twenty-one (21) years had not passed when Weible filed suit against the Wellses in 2009, the trial court ordered the Wellses to be ejected from the property.  Louise Wells, represented by Zwick Law, appealed this decision by the lower court.

What is Adverse Possession?

The doctrine of adverse possession is a legal concept that allows a trespasser – sometimes a stranger, but more often a neighbor – to gain legal title over land that was once owned by someone else.  The doctrine has developed as a way to achieve a fair result when a land owner has neglected or forgotten about a piece or portion of land, while another has been in possession of and using the land for an extended period of time, such that forcing that person, i.e., the adverse possessor, to depart or vacate the land would create hardship and/or inequity.

Adverse possession in Pennsylvania is established based on the character of a trespasser’s possession and the length of time he possesses the land in question. Under Pennsylvania law, to sustain a claim for title to real property through adverse possession, a litigant must prove her actual, continuous, open, notorious, exclusive, distinct, hostile, and adverse possession of the property in dispute for a period in excess of twenty-one (21) years.

Adverse Possession

While actions in ejectment are commonly employed by the rightful owner of land to recover property from those who have unauthorized possession of the disputed land, the rightful owner must commence an action in ejection within 21 years from the initial date of the unauthorized use.

The Superior Court Appeal

On appeal, Attorney Zwick successfully briefed and argued that Louise and her husband had adversely possessed and exclusively used the disputed property for 21 continuous years without actual interruption by Weible or any of his predecessors-in-interest.  Upon review and oral argument, the Superior Court agreed and reversed the trial court’s decision, ruling that, although the disputed property had been owned by the Counties from 1995 through 1998, during which time the Counties would have been immune from claims of adverse possession themselves, the 21-year statutory period was merely tolled (or paused), rather than reset due to the Counties’ ownership.  The statutory clock began to run again once the disputed property returned to Weible’s private ownership.

Newly Established Law on Adverse Possession

Thus, because the landscaping and driveway that were installed by Louise and her husband in the mid- to late-1970s remained in the same place and configuration through the date of trial in 2015, the Wellses “adversely” possessed the disputed property for well over 21 years.  The Superior Court, therefore, reversed the trial court’s ruling and remanded the case for entry of an order vesting ownership of the disputed property in Louise Wells by virtue of adverse possession.

On behalf of its client, Zwick Law clarified and developed new adverse possession case law in Pennsylvania.  This case illustrates how important it is to have aggressive attorneys fighting for you.  The skilled litigation attorneys at Zwick Law are dedicated to preserving the legal rights of our clients. For a free consultation and case analysis, contact either our DuBois or Brookville office today.  At Zwick Law, we are always here for you.

HOW TO PROPERLY HANDLE A PERSONAL INJURY CLAIM

The period immediately following an accident resulting in an injury is very stressful and often times overwhelming.  Lost wages, mounting medical debt, and the pain of an injury often combine, leaving a person desperate to find a resolution to an unfortunate situation.  While quickly settling an injury claim may seem like the easiest way to resolve problems caused by an accident, being overly eager to reach a quick settlement can leave an accident victim in an even worse predicament and with additional problems.  Being aware of the steps to properly and effectively handle an injury claim can increase your chances of avoiding crucial mistakes, while helping you obtain the compensation you deserve.

Should you automatically comply with all of the insurance claims adjuster’s requests?

The adjuster handling your claim usually presents himself as a friend or ally who is looking out for you and your best interests.  During the initial investigation of your claim, the claims adjuster will make various requests, such as asking you to sign authorizations for the release of confidential medical and employment information; asking you to provide recorded statements; and asking for other documentation related to your accident and injuries (e.g., videos, pictures, witness information, etc.).  Although adjusters will advise you that the requested information is always required to assess and/or to settle your claims, often times that is not completely true.

The claims adjuster will attempt to use the information that you provide to find ways to minimize or dismiss your claim.  In certain situations, you may need to provide some information and cooperate with the insurer’s investigation; however, this is not always required – selectively and strategically providing information does not mean that you will lose your claim.  Instead, taking a strategic and methodical approach usually increases your chances of walking away with all the compensation you deserve.

What happens if you miss medical appointments?

A person with no medical insurance or limited sick time from work may decide to stop going to follow-up doctor appointments before he is fully recovered and/or the treating physicians have officially released him from treatment.  Fear of lost wages and large medical bills can lead to a premature return to work, which can seriously impact your claim.  The medical appointments that you attend will further illustrate the extent of your injuries, and will establish a medical treatment pattern that shows the potential need for long-term care.  Missing scheduled and necessary medical appointments will likely lead to your claims adjuster dismissing or diminishing the severity of your injuries, which will significantly reduce the value and settlement of your case.

Should you question or challenge an adjuster’s valuation of your claim?

Claims adjusters working directly with an injured party may arbitrarily deny a claim without reviewing or receiving relevant claim-related documentation.  If, and when, this happens, too many people simply give up on the claim and do not pursue the compensation they deserve.  A person with little or no experience handling a personal injury, workers’ compensation, or medical malpractice claim will not know what steps to take to challenge or appeal the decision.  Insurance companies are experienced and manipulative, and they expect that accident victims will walk away from valid (and valuable) claims—saving the insurance company hundreds of thousands of dollars.

Do not stand alone – Zwick Law is here for you.

Even the most straightforward injury claim can quickly devolve into a nightmare, if not properly handled from the very early stages.  Remember, claims adjusters have years of experience negotiating claims, while the average person only deals with one or two injury claims in a lifetime.  The experienced personal injury and medical malpractice attorneys at Zwick Law understand how vital quality representation is to your claim.  We are prepared to review your situation and take over the time-consuming and stressful task of negotiating with the insurance company.

For questions relating to an injury claim, 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.[1]

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[1] Disclaimer: 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.

 

ACT 170 OF 2016: MODERNIZING PENNSYLVANIA’S BUSINESS ENTITY LAWS

PA Business Laws

Act 170 of 2016 (“Act” or “Act 170”), which became effective on February 21, 2017, brought sweeping changes to the treatment of certain Pennsylvania business entities, including limited liability companies; limited partnerships; limited liability partnerships; limited liability limited partnerships; and general partnerships.  The Act also modifies portions of the law relating to nonprofit organizations.

Act 170 becomes effective in two phases: first, for business entities formed before February 21, 2017, the law becomes effective on April 1, 2017, unless the existing entity elects to be governed by the Act before April 1; and, second, for those entities formed on or after February 21, 2017, the law is effective upon formation.

The statutory changes encompassed in Act 170 are long overdue.  These changes not only will provide business entities with more flexibility in structuring and reorganizing their companies, but also will lower costs related to such transaction while promoting business growth in Pennsylvania.

Some important changes imposed by Act 170 include:

  • allowing a business entity’s governing document to vary the duties of the entity’s managers, members and partners;
  • clarifying the status of transferees of members or partners and limiting the remedies of creditors against limited partners and members;
  • clarifying the rights of members to company information;
  • providing for the implementation of “tests” to measure the legality of interim and liquidating distributions;
  • defining “governance interests” and “transferable interests”, and setting forth the manners in which such interests can be transferred to third parties who are not members or partners of the entity;
  • permitting business entities to engage in fundamental transactions (i.e., mergers, conversions, interest exchanges, divisions, domestications, etc.) in a uniform structure with any other type of business entity; and
  • providing for the formation of nonprofit limited liability companies and partnerships.

For questions relating to Act 170, and to discuss how the Act affects your business, contact C.J. Zwick, partner of Zwick Law, at (814) 371-6400 or cjz@zwick-law.com, to schedule a legal consultation.  At Zwick Law, we’re always here for you!