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In Pennsylvania, Your Doctor Must Personally Obtain Your Informed Consent

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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?

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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.

 

Common Estate Planning Mistakes & How To Avoid The Pitfalls

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Creating an estate plan is the best way to pass property and other assets to your loved ones in a manner that you believe is best suited for you and your family.  Unfortunately, the majority of adults in the United States do not have a will, and those who do often make serious mistakes that render the will invalid or impractical.  If you want to be sure that your final wishes are executed properly, you must spend time creating and updating an estate plan with an experienced attorney who can provide accurate and reliable legal advice.  If you attempt to create and implement such an important legal document, without the proper assistance, you increase your chances of making one of these four common estate planning mistakes.

Review Your Estate Plan to Ensure That it is Up to Date

The majority of people who invest time and money to create a last will and testament and other estate planning instruments do not properly review their estate plan to ensure that it is up to date and applicable to changed situations and circumstances.  It is possible that your last will and testament may not require changes over the years; however, it is very likely that major life events and changes in circumstances may be overlooked, which likely will create problems for your loved ones after you are gone. Those who neglect to update their estate plans throughout their lifetimes, often times accidentally omit after-born children and/or grandchildren; name people who predecease them; and/or choose a personal representative who they no longer trust.  The mere passage of time is reason enough to review your estate planning documents to ensure that these important documents remain applicable and coincide with your current intentions.

 Your Will Does Not Impact Non-Probate Assets, such as Life Insurance Policies

An asset that several folks maintain is a life insurance policy.  Life insurance policies ordinarily designate a primary beneficiary or beneficiaries – the person or persons who will receive all or some of a specified sum of money after the policyholder passes away – and a secondary beneficiary – in the event that the primary designee(s) predeceases the policyholder.  Typically, beneficiaries to these policies are spouses, children, siblings, and/or parents.  A person who has recently gotten divorced or who is estranged from a relative may no longer wish for that person to receive any part of a life insurance policy.  However, instead of updating the beneficiary designations with the life insurance company, and without consulting an experienced estate planning attorney, a policyholder sometimes names a recipient of the policy proceeds in their will.  Unbeknownst to some policyholders, life insurance companies are required to pay proceeds to the named beneficiary in the policy, even if the designation is contrary to the directives in one’s will.  So, while you need to update and review your last will and testament, you also need to review all non-probate assets, such as life insurance policies, annuities, and retirement accounts, to ensure that your beneficiary designations also remain applicable and coincide with your current intentions.

Keep a Detailed List of Your Assets with Your Important Estate Planning Documents

While leaving assets to family members and loved ones is thoughtful, if your loved ones do not know where these assets are located or how to find them, receiving an inheritance may turn into a nightmare.  Without a detailed list of information on your accounts, real and personal property, and other assets, your personal representative and beneficiaries likely will have to conduct their own search.  Not only is searching for assets very time consuming and often times frustrating, it also is possible that some assets will go undiscovered for years.  Keep a detailed list of your assets with your important estate planning documents, to ensure that all of your assets are passed on to your loved ones.

Name a Trustworthy and Reliable Personal Representative of Your Estate

The personal representative of your estate is the person who is responsible for paying your debts, filing your inheritance tax return, and distributing your assets to your named beneficiaries.  Being named an executor or executrix is considered an honor, but it also is a serious position that can be unbelievably time consuming.  Naming a child or relative simply because they are oldest, or perhaps the favorite, is not always the best idea.  If the person you name as the personal representative of your estate is disliked, not capable of doing the job, or not trusted by your beneficiaries and other loved ones, then your family could seek to have him or her removed from the position.  This is not only time consuming and expensive, it also can take its toll on your family for many years to come.

Get Answers to All of Your Questions – Contact Zwick Law

Estate planning is an important, proactive measure that you can take to preserve your legacy and ensure that your assets stay with and benefit your family after you are gone.  When you are ready to create or update your estate plan, consulting with an estate planning and estate administration attorney is highly beneficial.  The trusted attorneys at Zwick Law are available to help you determine the best ways to distribute your estate and protect your assets long into the future. Contact us today to schedule a free and confidential consultation at either our DuBois or Brookville office.

For questions relating to your estate planning needs, contact either C.J. Zwick or Matthew R. Zwick at (814) 371-6400.  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.

 

HOW TO PROPERLY HANDLE A PERSONAL INJURY CLAIM

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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.