PENNSYLVANIA LEGAL UPDATE

FALL 2006 ISSUE

DOCTORS, PATIENTS, AND MEDICAL MALPRACTICE CLAIMS

A 23-year-old Pennsylvania man died when his physician failed to diagnose the onset of Type I diabetes. His death triggered a lawsuit that gave Pennsylvania's appellate court an opportunity to clarify the obligations of patients.

The young man first consulted his physician, complaining of vomiting, blurred vision, dry mouth, lightheadedness, and inability to work. The physician diagnosed him with influenza and allowed him to go home. Her notes confirmed that she was aware of his family history of diabetes. The same notes also documented the young man's recent rapid weight loss, leaving him weighing only 144 pounds at 6'1" tall.

Less than one month later, the young man again appeared at the physician's office, complaining of nausea and vomiting. Although he had no fever, he did exhibit an elevated heart rate. The physician diagnosed gastroenteritis and again sent the young man home, where he died the following day from complications related to his diabetes.

Contributory Negligence

At the conclusion of the trial on the family's medical malpractice claims, the trial judge gave the jury general instructions on contributory negligence. Pennsylvania law defines "contributory negligence" as conduct on the part of a plaintiff that falls below the standard of care to which he should conform for his own protection and that is a legally contributing cause in bringing about the plaintiff's injury or death. Contributory fault may stem either from a plaintiff's careless exposure of himself to danger or from his failure to exercise reasonable diligence for his own protection.

The jury found the physician negligent but also found that the young man's contributory negligence was equal to the negligence of the physician. The family appealed the decision, arguing that the young man was not negligent at all.

The Appeal

On appeal, the Pennsylvania Superior Court agreed with the family. The court recognized that the young man was obliged to monitor his own health as part of the doctor-patient relationship. But the court emphasized that the young man had fully reported his symptoms to his physician on two occasions and that she had responded each time with an erroneous diagnosis. The court distinguished previous court cases where patients did not accurately report their conditions or symptoms while on a routine visit to their physicians. In this case, however, the visit was not routine, and the young man reported his symptoms as he understood them--nausea, vomiting, diarrhea, sweating, and chills over the prior two hours.

The court also noted that the young man left each visit assured of a diagnosis by a medical professional who was more knowledgeable than he was and on whose expertise he was entitled to rely. The court concluded that "his questions had been asked and answered and his duty as a patient satisfied." Focusing on the fact that the young man had visited the doctor twice, coming a second time within weeks of his first visit, the court found that there simply was no reason for the trial judge to have instructed the jury on contributory negligence, since no facts supported any finding of such negligence.

Duties of Doctors and Patients

This case provides insight for both doctors and patients into how the Pennsylvania courts view the duties of each. Doctors are not obliged to diagnose instantly or with complete accuracy. However, they must meet the standard of reasonable care of the medical profession. A patient with a family history of diabetes who has recently experienced significant weight loss should be tested for Type I diabetes. Patients are not obliged to be medical experts. However, they must report their symptoms thoroughly, follow up on any instructions from their physicians, and return for additional advice and treatment if their symptoms continue. Particularly when patients are visiting their doctors for routine physicals or checkups, they have a duty to completely report their full knowledge of their health to empower their physicians to pursue proper diagnostic techniques.

WORKERS' COMPENSATION

Security Guard Wins Compensation for Scar

A security guard, injured in a struggle with a mental health patient at a state hospital, fought to get workers' compensation benefits for a permanent facial scar. She recently won her case. The security guard and her employer agreed that when the guard separated two female patients who were fighting, she was knocked across the room and her face was cut.

The hearing judge described the scar on the left side of the security guard's face as permanent and as "a noticeable line two and three-quarters inches long, running from the top of her ear down to the bottom of her chin." The judge also observed that the coloring of the scar was different from that of the surrounding skin, and he accepted as credible the guard's testimony that the skin texture of the scar was rough. The judge granted the security guard five weeks of compensation for the scar. The guard appealed, arguing that the severity of the scar entitled her to a far longer period of compensation.

On appeal, the guard was granted 75 weeks of compensation for the scar. The court noted that the Pennsylvania legislature, in drafting the Workers' Compensation Act, has never prescribed specific periods of compensation for disfiguring work-related injuries. Generally, workers' compensation awards are designed to keep injured employees on partial pay until they have fully recovered and are able to return to work. Where employees suffer permanent, disfiguring scars, the Act simply provides that they are entitled to appropriate awards. The period of time for compensation for scars is not defined in the Act and is left to the discretion of the workers' compensation judge.

In increasing the award to the security guard from 5 weeks to 75 weeks of compensation, the court noted that most workers' compensation judges award between 65 to 85 weeks of compensation for serious facial scars. Recognizing that previous cases have established a need for general uniformity in awards for scars to ensure fairness both to employers and to employees, the court ruled that the appropriate award for the security guard was 75 weeks.

Employees may not realize that even when they are physically capable of returning to work they may be entitled to additional compensation for permanent, disfiguring scars. While no amount of money can ever restore an employee to his or her previous appearance, their entitlement to some compensation for work-related scars is something all employees should understand.

SCHOOL ATTENDANCE LAW IN PENNSYLVANIA

The Pennsylvania Code distinguishes between when children may attend school and when they must attend school. The Code mandates that children must attend school, or receive appropriate home schooling, from the age of 8 until the age of 17. Children may attend public school from the earliest admission age in their district until the age of 21, or graduation from high school, whichever occurs first. A district is entitled to set the earliest admission age for its schools and must continue to offer public schooling to a child who has not graduated until the "child" is 21.

The Pennsylvania School Code calls for the prosecution of "every parent, guardian, or person in parental relation, having control or charge of any child or children of compulsory school age, who shall fail to comply with the provisions of this act regarding compulsory attendance." When an adult responsible for a child does not manage to get the child to school regularly, he or she may be prosecuted for truancy and can be sentenced to pay a fine of up to $300. Parents and responsible adults also may be sentenced to complete community service or to attend a parenting education program.

A parent or responsible adult who is sentenced on a truancy charge may be sent to jail for up to five days if he or she fails to comply with the sentencing order. Parents and responsible adults charged with truancy can avoid any penalties by showing that they took "every reasonable step" to ensure the attendance of the child at school. Children over the age of 13 can be charged with truancy and can be held responsible for paying fines or for attending alternative education programs. Children who are "habitually truant" also may be declared by the courts to be "dependent" children and can be placed in foster care.

The Pennsylvania Code permits absences that are necessary due to physical or mental health issues and permits limited excuses for medical appointments, educational trips, and approved part-time work. Each school district is required by law to provide parents and students with a written attendance policy. If you have school-age children, make sure you are familiar with your school district's attendance policies. Provide detailed, written notices regarding your children's absences and follow up with the school if you receive any notices that your child's absences are considered unexcused or unjustified.

Because state funding of local schools is tied to the regular attendance of all enrolled public school students, you may find that your school district is proactive when it comes to truancy prosecutions. Before finding yourself the defendant in a truancy case, be sure that you can prove that you have taken all reasonable steps necessary to keep your children attending school regularly.

TRASH PICKUP FEES

While many Pennsylvania residents make private arrangements with local companies for their trash pickup, all Pennsylvania cities, townships, and boroughs are entitled to centralize trash pickup as a municipal service. If your local government chooses to manage trash collection, you have no choice but to pay the trash assessment set by your local government.

A Pennsylvania man refused to pay the quarterly trash pickup payment set by his township, claiming that he never used the trash collection service that the township provided. Not only did his township insist that he pay his share of the trash assessment, the township filed a lien against the man's home to secure its entitlement to collect the fee.

Municipalities are entitled to file liens against real estate for unpaid local taxes and for unpaid services. If your municipality provides your water, sewer, or trash services, you may find your real estate encumbered by a lien if you refuse to pay. Even if you have a private well or prefer to arrange for your own trash disposal, once your local government decides to provide services, Pennsylvania's municipal laws say that you simply have no choice but to pay your share.

FUNDRAISING COMPANIES CAN BE LIABLE TO STUDENTS

School fundraising activities are often managed by private companies that specialize in providing fundraising products to schools and other community organizations. After a 10-year-old girl was assaulted and seriously injured while selling fundraising products in her Pennsylvania neighborhood, her parents sued the school district and the fundraising companies involved in the project. The suit against the school district was dismissed, but the Pennsylvania Supreme Court ruled that the private companies must go to trial on their liability for the child's injuries.

All students from kindergarten through fifth grade in the child's elementary school attended a fundraising meeting. The meeting was conducted by a management employee of one of the fundraising companies. The employee displayed and described the prizes available to the students and gave the students free gel pens to generate enthusiasm for the fundraising competition. Separate prizes for the highest-selling students and classes were also displayed. Promotional materials were distributed, but none of the materials contained any warnings or safety guidelines regarding the fundraising project. Some of the guidelines actually contradicted the school's published policies about sales by students.

Determined to make 50 sales in order to win a green inflatable chair, the girl threw herself into the fundraising project. Needing only four more sales to reach her goal, the child disregarded her parents' instructions and approached a man mowing the yard of a nearby house. Following the initial sales pitch described in the promotional materials, the child asked the man whether he would like to buy some candy for a school fundraiser. He took her inside the house and assaulted her.

School districts are generally immune from most lawsuits, and the parents' claims against the school district were dismissed. But the Pennsylvania Supreme Court held that the private fundraising companies could be held liable for the child's harm. Because the fundraising materials did not contain any safety warnings and actually contradicted warnings from the school and the child's parents, and because the companies created intense competition for prizes, the court found that the parents were entitled to have a jury decide if the companies were legally liable.

School fundraisers used to be simpler. Now, schools sell not only candy, but cookbooks, magazines, books, gourmet groceries, and household goods. If your children are participating in school fundraisers, be sure to review the materials they bring home and discuss with them their desire to win the competition's prizes. You can help your children better understand the effects of sophisticated marketing and perhaps reduce their desire for prizes. Consider accompanying your children on all sales calls to be sure they do not disregard your safety instructions. Finally, share your safety concerns with your school district to be sure that the sales pitch directed at the students includes firm and clear safety advice.

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