Thursday, December 19, 2013

OSHA Launches Online Whistleblower Claim System

To protect employee "whistleblowers", on December 5, 2013, the Occupational Safety and Health Administration ("OSHA") launched an online whistleblower complaint system at

"Whistleblowing activity" includes reporting a work-related injury, illness, or fatality, participating in safety and health activities, or reporting a statutory or regulatory violation.

Although known primarily as the federal agency responsible for regulating workplace health and safety under Occupational Safety and Health Act, OSHA's "Whistleblower Protection Program" enforces the whistleblower protection provisions of 22 different federal statutes including:
°Asbestos Hazard Emergency Response Act;
°Clean Air Act;
°Comprehensive Environmental Response, Compensation and Liability Act;
°Consumer Financial Protection Act;
°Consumer Product Safety Improvement Act;
°Energy Reorganization Act;
°Federal Railroad Safety Act;
°Federal Water Pollution Control Act;
°International Safe Container Act;
°National Transit Systems Security Act;
°Pipeline Safety Improvement Act;
°Safe Drinking Water Act;
°Sarbanes-Oxley Act;
°Seaman's Protection Act;
°Section 1558 of the Affordable Care Act;
°Solid Waste Disposal Act;
°Surface Transportation Assistance Act;
°FDA Food Safety Modernization Act; and
°Toxic Substances Control Act.

Mirroring the existing paper complaint form, OSHA's free online system provide workers with an accessible way to file whistleblower complaints without fear of retaliation. 

Workers can now file whistle blower complaints by calling an agency hotline or a regional office, submitting a written complaint, or using the online form. 

Given the ease with which employees now can file complaints, employers should anticipate a likely whistleblower claims increase by updating internal policies and educating managers on the whistleblower statutes.

Thursday, October 3, 2013

"Bad Faith" Insurance Claims

Accidents aren't the only cause of personal injury harm
Injured plaintiffs are often victims of wrongful delaying, withholding, or denying of benefits by either their own or the injury-causing-party's insurance company known as "bad faith".

Bad faith law requires an insurer who has acted in bad faith to compensate the policyholder the original claim's amount, any other losses resulting from the denial of benefits, and, to deter future wrongful acts, punitive damages.

Types of "Bad Faith"

"First Party" bad faith regards insurance companies' obligation to their injured policyholders to settle claims in a reasonable amount of time and for a reasonable amount of money.

"Third Party" bad faith regards claims made against the injury-causing-party's policy.   For example, if you're injured in an accident where someone else is clearly at fault, their insurance company, the Third Party insurer, is responsible for compensating for your injuries and settling the claim in a reasonable amount of time and for a reasonable amount of money. 

Examples of bad faith include undue delay in handling claims, inadequate investigation, refusal to defend a lawsuit, threats against an insured, refusing to make a reasonable settlement offer, or making unreasonable interpretations of an insurance policy.

Bad Faith Law and Claims 

Because it is among the United States' most powerful and profitable industries, insurance companies wield significant influence over the federal government which has no bad faith law or requirements that insurers act in good faith and fairly with their insureds.  

Instead, the insurance industry is regulated by state created bad faith law which deems insurers as having a "fiduciary relationship" - - a special relationship of trust and of acting in good faith - - with policyholders and define "bad faith" as delaying, withholding, or denying policyholder benefits based on legitimate claims filed under valid insurance policies.  

Bad faith laws require insurance companies to "adjust", i.e., deny or pay, a claim within a reasonable period of time, cooperate with claimants through all dealings, including promptly responding to policyholder inquiries, and express the exact reason for denying requested benefits by citing the policy provision upon which that decision relies.   

Bad Faith Claims and Recovery 

When it wrongfully delays, withholds, or denies benefits, bad faith law empowers injured policyholders to seek relief from the insurance company through a tort, or personal injury, lawsuit.  

Bad faith law requires an insurer who has acted in bad faith to compensate the policyholder both the original claim's amount and any other losses resulting from the denial of benefits.  Further, to deter future wrongful acts, bad faith law provides for recovery of punitive damages from insurance company.

Monday, September 2, 2013

Class Action and Mass Tort Actions

Class actions are procedural device to determine the rights and remedies of large numbers of people whose cases involve common questions of law, fact and harm suffered in areas including insurance, banking, securities, workers' rights, maritime and unfair trade and consumer protection.

Unlike "class actions", in which the plaintiff seeks court approval to litigate on behalf of a group of identically situated persons, mass tort actions involve similarly situated people whose claims are brought in one "mass tort " complaint seeking the efficiencies and economic leverage that class action's provide. 

What Are Class Actions 

A class action is a civil lawsuit brought by one person on behalf of a larger group of people who have suffered a similar harm or have a similar claim.  Class actions can be brought in federal or state courts and are used when too many people have been affected by the subject of the claim for each to file separate lawsuits frequently involving injuries resulting from hazardous products and drugs like tobacco, asbestos, Agent Orange, breast implants, and contraceptives.  

Class actions are also used in securities (e.g., fraudulent financial statements or releasing false information about stocks and other forms of market manipulation) and employment (e.g., wage/hour laws violations and mass dismissals) cases or to stop illegal or harmful practices like oil spills, manufacturing pollution, or Constitutional protection violations. 

Mechanics of Class Action Proceedings 

A lawsuit becomes a class action when a plaintiff, called the "Lead Plaintiff", files a lawsuit claiming that a harm has been suffered and requesting that the case be certified as a class action.  

To have the case certified, the Lead Plaintiff must demonstrate that:
• a legal claim exists against the defendant(s);
• a significantly large group of people have been injured in a similar way and their respective claims involve similar issues of fact and law as that of the Lead Plaintiff; and
•the Lead Plaintiff is typical of the class members, has a reasonable plan and ability to adequately represent the class, and has no conflict with other class members.  

If certified as a class action, the court will order that the class of affected people be notified including through direct mailings.  Class membership is usually automatic and, unless they choose to "opt out", everyone affected by the wrongdoing will be part of the case.

Unless they have evidence to offer, class members generally are not involved in the case nor the settlement negotiations.  Instead, the Lead Plaintiff consults with the class action attorneys to develop the case's strategy (including and accepting settlement offers) and other class members only may choose to accept or opt out of the settlement.
Class Action Recoveries 

Because few class actions proceed to trial, and often settle following class certification, a large portion of the proceeding involves forging a settlement. 

The court decides how to divide any recovery and the attorneys are given costs and fees, often calculated as a percentage of the entire recovery.  The Lead Plaintiff receives an amount partly determined by his participation, and the rest of the recovery is then divided among the class members.

Mass Tort Actions 

Unlike "class actions", in which the plaintiff seeks court approval to litigate on behalf of a group of identically situated persons, many disputes involve similarly situated people whose claims are brought in one "mass action" complaint seeking the same efficiencies and economic leverage as if a class had been certified. 

Because they operate outside class action's detailed procedures, mass torts actions can pose special difficulties.  For example, unlike a class action settlement, which follows a predictable path of negotiation with class counsel and representatives, court scrutiny, and notice, a uniform method for settling all mass tort claims may not exist.  

Some states permit plaintiff's counsel to settle all mass tort plaintiffs claims according to a majority vote while others require each plaintiff to approve the settlement of that plaintiff's respective claims.

Tuesday, July 30, 2013

Construction Accidents

People working in construction are exposed to tremendous hazards and dangers with thousands of construction workers seriously injured or killed each year. 
Despite state and federal regulations, as well as industry standards, requiring owners, general contractors and subcontractors to implement a wide variety of safety measures, each year U.S. workers experience 6,000 job related deaths and 5.7 million occupational injuries, illnesses and accidents. 
Because of nearly daily changes at construction sites, construction accidents require early legal intervention and investigation.
General Construction Site Accidents 
Each year more workers are hurt and killed doing construction than in any other industry.
Construction site injuries frequently result from objects or workers falling from elevated areas,  workplace motor vehicle machinery and equipment accidents (including trucks, cranes and forklifts), electrocution, fires, explosions, exposure to harmful substances and environments, a lack of excavation shoring, and unsafe ladders.
Construction Site Falls and Scaffolding Accidents
The most common causes of construction site catastrophic falls and deaths include unprotected sides and wall openings, holes in floors and unguarded protruding steel rebars, and falls off the edges of - - or holes in - - roofs.
An estimated 2.3 million construction workers work on scaffolds and each year 4,500 workers are injured in - - and 60 die as a result of - - scaffolding accidents.
Scaffolding accidents often involve falls due to lack of fall protection, instability or overloading caused scaffold collapse or tip-over, or being struck by falling tools, work materials or debris.
Structural Collapse Accidents
Structural collapses occur both in existing structures or structures being built.
For buildings under construction, structural collapse accidents require examining construction codes and blueprints to determine:
            ° whether structure was being built properly according to its design or if it's design was                             improper;  
            ° were the foundation and building materials appropriate;
            ° was the building properly braced during construction; and
            ° was it engineered to be structurally stable.
For an existing structure's collapse accident investigation involves ascertaining the structure's age, how well it was maintained, and whether owner was aware of any potential safety hazards and, if so, what it did - - or failed to do - - to address these dangers.
Liability and Damages in Construction Site Accidents
Workplace injuries range from broken limbs to severe brain and spinal cord injuries to death. 
Further, construction site injuries often devastate the injured worker's family members whom may have depended on his income and now are responsible for his care. 
The property's owners, general contractors, contractors, construction managers, construction companies and equipment manufacturers may all be liable for compensation for pain and suffering, emotional trauma, medical costs, lost income and future earnings.

Tuesday, June 11, 2013

Defective Road Conditions

Sometimes it's the road - - and not the driver or vehicle - - that causes the car accident.

The American Society of Civil Engineers' ("ASCE") “2010 Report Card for Pennsylvania’s Infrastructure” gave our roads - - which are the state and local municipalities' responsibility - - an overall D-minus grade rating 38% of Pennsylvania's roads as "fair" or "poor".

Defective road conditions like potholes and sinkholes can cause a driver to lose control of his vehicle leading to accidents resulting in serious personal injury or death.

Accident Causing Defective Pennsylvania Roads

According to ASCE, Pennsylvania's 40,000 miles of state roads and 76,000 miles of local roads are among the nation's oldest and have exceeded their design capacity including cracking and expanding because of temperature and weather changes and rapidly deteriorating due to chemicals used for snowy/icy conditions.

Further, ASCE says that 27% of Pennsylvania’s 22,280 bridges are structurally deficient deeming 17% as "functionally obsolete".

Potholes, crumbling roads giving way to soft shoulders, drainage problems causing water or ice hazards, and other defective roadway conditions can lead to car accidents, injury and death.

Governmental Liability for Defective Road Conditions

Although Pennsylvania’s Sovereign Immunity Act generally bars suits against the government, dangerous highways conditions created by potholes, sinkholes or similar conditions are exempted.

Thus, the Commonwealth and local governmental entities are liable if the dangerous condition creates a reasonably foreseeable risk of injury that’s suffered by a motorist and the government had actual written notice of the "dangerous condition" sufficiently prior to an accident to protect against it.

Pennsylvania law allows lawsuits against the government seeking damages for past and future loss of earnings and earning capacity, pain and suffering, and medical and dental expenses and loss of consortium.

Unlike most personal injury claims, lawsuits against government entities for injuries caused by dangerous road conditions require written notice of the claim made within six (6) months of the accident.

Product Liability for Defective Road Conditions

If a defective product - - such as asphalt or pavement supplied by a private contractor - -was a “substantial factor” in causing the injury, a product liability lawsuit may be filed.

Anyone in the product's chain of distribution can be held liable, including manufacturers, wholesalers, distributors, and retailers.

Further, because Pennsylvania is a “strict liability” state, claimants need not show that someone’s negligence caused their property damage or personal injury.  Instead, claimants must only show the defect's existence and its relationship to the harm that was caused.

Tuesday, April 23, 2013

Teleradiology: Misleading Patients As To Who is Reading Their Film

Although patients know that hospitals have third parties perform laboratory testing, few question the source of their CT scan's reading.

However, recognizing the financial advantages of outsourcing radiological services, hospitals have begun to outsource both beyond their own institution and the United States' borders.

Beyond misleading patients as to whom is providing their care, a patient injured through a teleradiologist not subject to the hospital's credentialing requirement suboptimal reading may have corporate negligence and informed consent claims case against the hospital.

What is Teleradiology

As a result of technological improvements, imaging can be easily transmitted to remote locations preventing physicians from travelling back to the hospital to interpret a study or film that could be done on their home computers.

When teleradiology studies are provided by a Pennsylvania-licensed radiologist directly affiliated with the institution at which the patient is receiving care, teleradiology can be a cost-effective way of improving patient care.

Unfortunately, because digital technology also enables transmitting the images anywhere around the world, overseas radiologists are often used to do interpretations.

Beyond the lack of communication between the clinician and doctor reading the study, the interpretation-providing-overseas-physician's frequent lack of credentials makes teleradiology an inferior form of care.

No Current Bar Against Teleradiology

Although patients and their families often select an institution based on its overall reputation, hospitals are not presently required to disclose the practitioner's interpreting the radiology studies location and credentials.

Further, to get around Medicare's refusal to pay for medical services performed outside the United States, offsite radiology services often perform "preliminary interpretations" contracted and paid for by a local radiology group servicing the hospital which follows up the with a "final reading" that is billed to Medicare.

"Corporate Liability" and "Lack of Informed Consent" Claims

Although there is no presently recognized requirement that treatment recommendations conveyed to the patient or family include a disclosure that they are based upon interpretations provided by practitioners not directly affiliated with the hospital or located in the United States, patients injured as a result of a teleradiologist's suboptimal reading may have corporate negligence and lack of informed consent claims against the institution.

In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), Pennsylvania's Supreme Court recognized that hospitals are directly liable to patients under the doctrine of corporate liability establishing a duty that the hospital owes directly to the patient to oversee all persons who render care and to adopt adequate policies ensuring quality care.

Because corporate liability involves hospital's direct negligence (as opposed to vicarious liability for hospital employee's act) and is based on the institution's negligent acts arising from its policies, an injured party need not establish a doctor's negligence to prevail under a corporate liability theory.

Further, in 2002, Pennsylvania's law of informed consent was legislatively changed to include misrepresentation where a patient was misled as to the doctor's training, experience or credentials.

The use of teleradiology without full disclosure is no less misleading to a patient than a surgeon exaggerating his or her experience performing a procedure and goes to the heart of a hospital's duty to its patients.

Wednesday, February 27, 2013

Marcellus Shale Accidents

The shale gas industry's rapid expansion has introduced risks of serious accidents, explosions, worker injuries, property damage and environmental harm. 

Specifically, Marcellus Shale exploration and drilling causes industrial accidents including well blowouts, fires, methane leaks, loss of well control and gas migration.
Marcellus Shale 

Marcellus Shale -- a deep underground rock formation extending from Ohio and West Virginia into Pennsylvania -- holds the United States largest natural gas reserve comprised of hundreds of trillions of cubic feet of natural gas.
Although geologists have known about this massive reserve for years, recent drilling innovations including hydraulic fracturing ("Fracking"), coupled with higher energy prices, have greatly increased mining of Marcellus Shale natural gas.  

According to the Pennsylvania Department of Environmental Protection, 2,500 Marcellus Shale drilling permits were issued between 2007 and 2009 and 5,000 permits were issued in 2010.
Each project involves constructing a "well pad" and drilling a "well bore" to depths of up to 6,000 feet.
The majority of Marcellus Shale wells use “fracking”, high pressure pumping of millions of gallons of chemically-treated water mixed with sand deep into the ground to break up the shale and release trapped natural gas.
Because it involves withdrawing millions of gallons of freshwater, contaminates water and groundwater wells and results in improper drilling fluid and wastewater disposal, Fracking raises significant environmental concerns.
Drilling fluid wastewater spills or leaking into holding pits pollutes rivers, streams and aquifers killing fish and contaminating local water supplies.
Marcellus Shale Accidents 

The oil and gas exploration industry's growth has strained existing state regulatory safeguards exposing property owners, businesses and workers to accidents, injuries and environmental damage.

Drill operators often encounter unexpected natural gas pressures in areas that haven’t been drilled previously causing blowouts and injuries.  Further, sparks from a drill bit can ignite trapped methane, a highly volatile gas, severely burning workers.
Natural gas also migrates underground from improperly constructed wells, building up to explosive pressure beneath houses and buildings.
Injuries in a Marcellus Shale well drilling accident often result from the employer's negligence or lack of workplace safeguards.  

Further, those whose property is damaged or contaminated by well drilling, may have claims against a drilling rig operator or gas exploration companies.

Wednesday, January 30, 2013

Texting-While-Driving Accidents

The National Highway Traffic Safety Administration describes sending or reading a text message while operating a motor vehicle as “by far the most alarming distraction” leading to death, injury and property damage on our nation’s highways.
Beyond forming a crime, texting-while-driving is negligence the victims of which are entitled to be compensated for their injuries and financial losses.
Texting-While-Driving Accidents
According to the U.S. Department of Transportation ("DOT"), texting while driving creates a 23 times greater crash risk than driving while not distracted.
According to the DOT, sending or receiving a text removes a driver’s eyes from the road for approximately 4.6 seconds, which, when traveling at 55 miles per hour, is like driving the length of a football field blindfolded.
Further, due to immaturity and lack of experience behind the wheel, younger drivers are more likely to text while driving with 23% percent of a 2011 AAA Foundation survey respondents between 17 and 26 admitting that they or their friends texted while driving.
The Pennsylvania Department of Transportation revealed that 13,000 crashes occurred between 2005 and 2010 involving 16 to 19 year old distracted drivers resulting in 60 fatalities. 
Texting-While-Driving is a Crime in Pennsylvania
Because of the dangers posed by distracted driving, it is a crime in Pennsylvania to use a cell phone,  IPAD, or portable computer to send, read or write a text message, instant message, email or other written communication while operating a vehicle. 
Because texting while driving is a form of distraction that a driver chooses, texting accidents comprise reckless or negligent driving. 
If a texting driver causes death, injury, or property damage, crash/collision victims have the right to seek compensation for their losses.
Handling Texting-While-Driving Cases
Most critical to prevailing in a texting-while-driving accident case is conducting an independent investigation to determine how the accident occurred including obtaining cell phone records to ascertain whether a driver was texting at the time of the crash.
The Schain Law Firm works closely with a network of medical experts, economists and life-care planners who can fully document the extent of a texting accident victim’s injuries and financial losses.