Tag Archive for: DuBois Attorney

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.

 

Common Complaints Made Against the Executor of an Estate

The role of the executor of an estate is one of complete trust and supreme responsibility.  Whomever you choose to serve in this capacity will oversee your final wishes to ensure that the terms outlined in your estate plan are followed. In theory, the person who is the executor of your estate will have few problems with your beneficiaries. In reality, however, it is not unusual for your executor to be at odd with your heirs for a variety of reasons. Being aware of common complaints made against an executor will help you when the time comes to choose someone for that role and help that person prepare to manage your estate.

Conflict of Interest

A person with a small estate and limited beneficiaries will often name a person to execute his or her will, and that person also is commonly named as a beneficiary.  Typically, that is not an issue and the other heirs will understand that being named in a will does not automatically mean that you will not be a fair executor. There are times when an executor has abused that position of trust and your other heirs may grow concerned, if they believe that your executor is focusing on his or her own best interest at the expense of their interests and those of the estate.  Lack of trust may lead to claims of a conflict of interest, in an effort to disqualify your executor from continuing to operate in that capacity.

Mismanaging Funds of Estate

The assets of an estate must be managed properly during the probate process.  Securing all assets is one of the most important roles of the position and is vital if the estate has many assets or outstanding debts.  Transactions must be recorded throughout the process of paying debts, filing tax returns, and distributing bequests using the funds or property available.  Sometimes, heirs will believe that the executor is not properly managing the assets of the estate and may file a complaint out of concern for the security of what they expect to inherit.  While an executor is compensated for his or her time, the amount of compensation may seem nominal in comparison to the value of the estate, leading to unease from heirs who believe the executor will find other ways to be compensated.

Lack of Communication

One of the most time-consuming aspects of serving as an executor is communicating with everyone associated with the estate.  Contacting creditors, keeping the courts informed, and talking to the beneficiaries is not always easy.  Unfortunately, some beneficiaries may not be satisfied with the level of communication they are receiving from an executor.  If they believe that they have not been contacted on a regular basis regarding the status of the estate, then they may initiate a complaint or attempt to get your executor removed.

Talk to an Experienced Attorney a Zwick Law

Choosing an executor is just one of the many things that you must do in order to secure your legacy for your loved ones.  A qualified estate attorney at Zwick Law can guide you through the entire process, and help you decide who is best suited to manage your estate while seeing to your final wishes.  The attorneys at Zwick Law are here to provide you with the legal advice and peace of mind that you need and deserve.  Contact us today at 814-371-6400 to schedule an initial consultation at our DuBois or Brookville offices.[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.

 

 

LEVEL THE PLAYING FIELD – TACTICS USED TO REDUCE OR DENY PERSONAL INJURY CLAIMS

After the occurrence of an accident, which results in personal injuries to you or a loved one, it is not unusual for a claims adjuster from a liability insurance carrier to contact you to express sympathy and offer assistance in a time of need.  While the adjuster’s friendliness and solicitude may seem legitimate, the insurance adjuster’s primary function is to save his employer (i.e., the liability insurance company) money by reducing or greatly diminishing the settlement of your claim.  The tricks and tactics that insurance adjusters use to reduce or deny claims have affected hundreds of people throughout the years—which is why it is very important that all accident victims learn to recognize some of the most commonly utilized methods employed by insurance carriers and claims adjusters.

Becoming fully aware of commonly known tricks and tactics may help you or your loved ones avoid making an error that could prove extremely damaging to a personal injury claim.

Take it Slow – Don’t Rush into a Personal Injury Settlement

In many instances, accident victims require numerous doctor visits, medical and psychological treatment and extended time off of work before the scope and extent of their injuries are fully recognized and appreciated.  As the scope and extent of medical care and treatment increase, so does the potential settlement value of your case.  The first trick that many claims adjusters may utilize to reduce the payout on your case, is to rush the settlement process in order to close your claim before you receive all of the medical care that you need and deserve.

Ensure that You Receive Full Compensation – Don’t Accept Deliberate Underpayments

A claims adjuster also may intentionally send you less insurance money than your injuries and necessary treatment warrant.  In the overwhelming majority of cases, receiving and accepting payment from a liability insurance company means that you intend to enter a full and final settlement of your claims.  In other words, payment from an insurance company for injuries caused by its insured, often times represents full and complete payment on your injury claim.  After you have deposited or cashed the check, you will not be able to request additional compensation in the future—even if you later discover the amount you received is not enough to cover your medical bills and other accident-related expenses.

Take it Slow, But Not too Slow – When is the Right Time to Settle?

Many claims adjusters know that being out of work, while simultaneously accumulating medical debt, can be very stressful and intimidating.  Adjusters often develop various methods to stall the claims process, knowing—or at least hoping—that the longer the process takes, the more likely you are to accept a lesser amount of money to settle your claim.  In other cases, an adjuster also may hope that stalling or delaying a claim will cause an injured party to overlook a statute of limitation deadline, which could have the legal effect of barring a monetary recovery on your injury claim forever.

Level the Playing FieldContact Zwick Law

Almost all insurance companies and adjusters want injured parties to avoid consulting with an experienced personal injury attorney—an attorney who will recognize their deceiving tricks and tactics.  The primary objective of a claims adjuster is to settle claims as inexpensively as possible, or even deny the claim in its entirety.  Throughout the settlement process, many adjusters will discourage you from consulting with an attorney, all while providing you with hope that they will work with you to settle the situation fairly (and, untimely, at a value much lower than you deserve).

If you or someone close to you is involved in an accident, the best thing to do is to contact a personal injury attorney immediately.  An experienced attorney, who is dedicated to being your advocate, will ensure that your claim is handled professionally, fully and fairly throughout the entire process – from injury to absolute compensation.  At Zwick Law, our experienced team takes pride in representing our clients diligently and aggressively through every stage of a claim.

With offices conveniently located in DuBois and Brookville, Pennsylvania, we are standing by to provide you with the peace of mind you deserve.  For questions concerning a personal injury claim, contact Matthew R. Zwick at (814) 371-6400 or mrz@zwick-law.com, to schedule a free legal consultation and 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.

 

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.

 

TOP THREE ESTATE PLANNING MISTAKES

Last Will and Testament

Protecting your loved ones by creating an estate plan is very important — it gives those closest to you clear instructions on how to carry out your final wishes. Unfortunately, even a small estate planning mistake can cause months or years of probate-related confusion. To avoid difficult and expensive problems, not only should you consult with any attorney to create or edit your estate plan, but you also should discuss your wishes with those closest to you. Being aware of these three common estate planning errors can help you better protect your beneficiaries and secure the legacy you have left to your heirs.

No Records

The records you leave behind are a vital part of administering your estate. Without proper documentation, it becomes difficult for your executor and heirs to locate property, recover assets, and verify the estate’s outstanding debts. In some well-known cases, the family was not even able to locate the will that was created, causing numerous problems for everyone involved. When working on your estate plan, be sure to include detailed information and records that explain the location of your bank accounts, life insurance policies, tax information, etc.  It also is vital that your family knows where your will and important documents are stored.

Choosing the Wrong Executor

An executor is someone who should be trustworthy and reliable — after all, your executor is responsible for distributing your assets and adhering to your final wishes as outlined in your estate plan. However, no matter how thorough you feel your estate plan is, being an executer is still hard work and extremely time consuming. You must choose an executor who has the ability to dedicate him or herself to the long process of managing your affairs. Your executor will need to work alongside your attorney; remain in contact with your beneficiaries; care for your assets; file your final tax return; and more. If you choose someone who does not have time to communicate with your beneficiaries; has a conflict of interest; or otherwise cannot perform the duties, then the probate process could turn into a disaster for your heirs.

Establishing a Trust Incorrectly

Establishing a trust is one way to pass assets on to your heirs without incurring large tax penalties or jeopardizing any government benefits that your heirs receive. However, if a trust is established incorrectly, then it could cause the same financial harm that it was intended to avoid. Even if the trust itself seems to be established with no problems, other issues such as appointing the wrong trustee; not designating your beneficiaries correctly; and not updating the trust on a regular basis, can cause problems for those you were planning to help.

Contacting Zwick Law to Review Your Estate Plan

Regardless of the size of your estate, contacting an estate planning and estate administration attorney is highly recommended. At Zwick Law, we are able to make suggestions based on your unique situation, to help you create the best estate plan for your circumstances. Our team is dedicated to providing clients with the assistance that they need. We understand that estate planning is a sensitive topic for most families — but it is necessary to protect your family and future.  Contact us at one of our conveniently located offices in DuBois and Brookville, Pennsylvania, to schedule a legal consultation. 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.