In 2002, the Medical Care Availability and Reduction of Error Act (the MCARE Act), 40 P.S. § 1303.501, et seq. reformed the law on medical malpractice in Pennsylvania. One result of the MCARE Act was a change to Pennsylvania’s venue rules for medical malpractice actions, which was implemented in the Pennsylvania Rules of Civil Procedure.
Continue readingThe “Sudden Medical Emergency” Defense in New Jersey: Suggested Approaches
Your client is involved in a motor vehicle accident in the State of New Jersey. He claims to have suffered a loss of consciousness due to a medical condition that he never experienced before or was otherwise diagnosed with any condition that may have led to his losing consciousness. Surely New Jersey case law has addressed this issue before, right? Not so fast.
As of October 2022, New Jersey case law has yet to address the sudden medical emergency issue. There is, however, established case law addressing the “sudden emergency” doctrine. In
Harpell v. Public Service Coordinated Transport, 20 N.J. 309 (1956), the New Jersey Supreme Court affirmed the Appellate Court’s ruling affirming the trial court’s judgment entering a verdict in favor of plaintiff, Albert E. Harpell. Mr. Harpell was a passenger on an electric trolley who was struck by a piece of concrete that had been thrown by a 15-year-old boy from a spot outside the fenced-in area that bordered the trolley route. Plaintiff was seated by a trolley window that was equipped with a metal screen that extended half-way up the window. The screen was designed to prevent injuries to passengers’ arms.
Liability in the Age of Covid-19
There is no doubt that the Covid-19 pandemic has changed the landscape of life as we know it. In March 2020, when the pandemic lockdown occurred, the term Covid-19 was new to most of us. For many people, uncertainty and worry became part of daily life. In the legal arena, the Covid-19 pandemic has raised some important questions. One question was the extent to which healthcare professionals could be held liable for Covid deaths. Another by extension, is what the standard of care is for treatment of any rare disease.
At the beginning of the pandemic, hospitals were understaffed and overflowing with patients. There were hospital bed shortages, and the medical field was working quickly to understand Covid-19 and how to slow the spread. Retired nurses and doctors were asked to return to work to help alleviate the burden on overworked staff. Because of the possible implications of a Covid diagnosis, and the threat (medically and legally) to health care workers who were on the front lines, many states, including NJ, implemented a law that immunized health care workers, acting in good faith to save lives, from negligence lawsuits related to the treatment of Covid-19.
Continue readingSpencer v. Johnson and the Potential Consequences of the Pennsylvania Superior Court’s Dicta on the Fair Share Act.
By: Robert E. Lavoie
Since the inception of the Fair Share Act over a decade ago, the act has been applied in Pennsylvania without much controversy. Then, in dicta found in the Pennsylvania Superior Court’s decision from last year in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that court raised, on a seemingly sua sponte basis, the proposition that the Fair Share Act should not apply in cases involving innocent victim plaintiffs.
Examples of cases where a plaintiff may be an innocent victim include cases where a plaintiff is a guest passenger in a vehicle involved in an accident, or cases where a plaintiff struck while walking in the crosswalk with the pedestrian light in his favor, or in claims involving plaintiffs who are the victims of negligent medical care while under anesthesia. As such, this dicta could come into play in a number of scenarios going forward.
Continue readingSpecial Needs Requires Special Estate Planning
By Carrie A.S. Kennedy, Esquire
When your loved one, for example a child or grandchild, has special needs and receives government funding, it is especially important to create an estate plan that doesn’t jeopardize that person’s receipt of governmental benefits (such as Supplemental Social Security Income and Medicaid). Your Will should be carefully drafted to prevent that person from inheriting assets directly. Additionally, a carefully drafted Third Party Special Needs Trust can allow for the use of funds as provided in the trust for the benefit of your loved one while preserving much needed governmental benefits. This type of trust gives the grantor (creator of the trust) the ability to direct the ultimate beneficiaries of any funds remaining upon the passing to the special needs person. The trust can be funded through inheritance as directed in a Will, by beneficiary designation on an account or policy or by direct gift to the Trust from a third party. It may not be funded with the special needs person’s own funds.
Continue readingKate Miller Brown Joins Connor, Weber & Oberlies
Kate Miller Brown joined Connor, Weber & Oberlies in 2021. She works in the Estate and Trust Department. Her practice focuses on estate and trust administration, estate litigation and estate planning.
Noelle Connor joins Connor, Weber & Oberlies
Noelle Connor joined Connor, Weber & Oberlies this year, and works out of the Moorestown, NJ office. Noelle focuses her practice in the areas of insurance defense, general negligence, school law, personal injury, and premises liability. Noelle is licensed to practice in the State of New Jersey, the Commonwealth of Pennsylvania, and the U.S. District Court for the Eastern District of Pennsylvania.
Is the Regular Use Exclusion in Vehicle Coverage Becoming a Relic of the Past?
Recent decisions in Pennsylvania appear to be eroding the Regular Use Exclusion in Pennsylvania. Most automobile insurance policies in Pennsylvania contain a “regular use” exclusion to insurance coverage whenever an injured individual was in a vehicle that was regularly available for that individual’s use but was not covered by the insurance policy at issue. The rationale for this exclusion is to prevent an insurance carrier from providing coverage to an injured party where, unbeknownst to the carrier, the injured party regularly used another vehicle which was not covered under the carrier’s policy because the carrier has not been paid a premium by the injured party to cover that risk.
Historically, this exclusion to coverage has survived challenges to its validity in Pennsylvania courts and recently has continued to do so. (See Williams v. Geico Government Employees Insurance, 32 A.3d 1195 (Pa. 2011); and more recently in two unpublished Pennsylvania Superior Court cases: Rawl v. Geico, No. 1086 WDA 2019, 237 A.3d 1042 (Pa. Super. 2020)(unpublished) and Eckert v. Unitrin Auto Home Insurance, No. 1013 EDA 2019 (Pa. Super. 2020)(published)).
This seemingly secure footing for the “regular use” exclusion, came under attack by the recent case of Rush v. Erie Insurance Exchange which is currently making its way to the Pennsylvania Supreme Court.
Continue readingPaul J. Smyth Joins Connor, Weber & Oberlies
Paul J. Smyth joined Connor, Weber & Oberlies in 2021 and works out of the Moorestown, New Jersey office. Paul focuses his practice in the areas of general liability, premises liability and personal injury. Paul also has vast experience in mass tort defense in New Jersey and Pennsylvania.
Jason G. Bates joins Connor, Weber & Oberlies
Jason G. Bates joined Connor, Weber & Oberlies in 2021 and works out of the Paoli, Pennsylvania office.
Jason brings his extensive experience in handling various litigation matters at all levels of the State and Federal Court systems, including general defense litigation, municipal law, civil rights litigation, premises liability and automobile negligence litigation. He has state and federal jury trial experience and has experience trying cases at the arbitration level. Mr. Bates has been a presenter in several continuing legal education seminars and paralegal seminars. He also has authored articles on subrogation and social host liability issues.