Breaking Pennsylvania Medical Malpractice News! plus Mailing It In!

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Please rise. Court is now in session.

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All rise.

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I strenuously object.

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A legal podcast brought to you by the Pittsburgh law firm Flaherty Fardo is now in session.

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All those seeking information about the law and legal matters affecting the people of Pittsburgh

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and the Commonwealth of Pennsylvania, half-baked opinions and a dose of self-indulgence

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are invited to attend and participate.

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I brought the truth! You can't handle the truth!

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I object, Your Honor.

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Your Honor, I object.

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You would!

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Call the first witness.

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Hey, good morning, William.

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Morning, Noah.

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How are you?

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I'm great. We're gonna break some news again today.

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Also, unrelated, I had a turkey trying to climb through the gate into my backyard this morning.

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That was a first. I've lived here for 20 years.

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I've never had a turkey trying to make their way into my backyard before.

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Um, and how did that help us with entertaining our audience or educating them on the breaking news

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involving medical malpractice?

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Um, not a lick.

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Okay.

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Did you want to talk about the weather or were you just making chit chat?

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Yeah, mostly some chit chat. You know, you asked how I was doing.

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Hey, quick hit today. Very briefly, we need to update our listeners about the recent development

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that happened in the Pennsylvania Supreme Court involving medical malpractice.

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We interrupt this program to bring you a special report.

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Are you aware of it?

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I am.

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So interesting story. I have a friend slash relative,

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because I'm going to keep this as broad as possible, who is dating an ER doctor.

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And he told me this past weekend that this ER doctor confided in him that she is shocked

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at the number of malpractice errors that harm or kill people that the family never

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knows because of the complexity of medicine. Does that surprise you?

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No, no, it doesn't.

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Even in the cases where there ends up being obvious malpractice, it's sometimes,

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sometimes very hard to find.

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Yeah, I don't care how many times I say it. It's shocking to me.

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Almost half a million people, 483,000 people they estimated die as a result of medical

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malpractice errors every year. Half a million people. Why are we not talking about this?

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Well, we've got some good news to give some potential med mal plaintiffs, at least as of

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today. So the State Supreme Court, its rules committee, has promulgated an amendment to the

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rules of civil procedure. Quick 10,000 foot view here. Unlike every other defendant and even every

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other professional defendant that exists in the world, there was a special law and rule

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protecting the choice of venue for medical providers and doctors who were sued, which used

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to say, and for years has said, you can only bring a medical malpractice suit against a doctor or

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a hospital or whatever in the county where the care was actually provided. Now, that's a unique

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rule that benefits only and specifically physicians and other medical providers. And, you know, the

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basis of it was it's like it's like the rest of this stuff. There was a bunch of political lobbying.

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You'll remember it was maybe 20 years ago, everyone talked about the kind of medical malpractice

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crisis and frivolous lawsuits and the insurance was getting so high that all the doctors were

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going to leave the state. We now know and the Supreme Court now knows that that was overblown

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and none of that stuff happened. And the number of medical malpractice cases that were being filed

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actually went down. And anyway, for years, they've been talking about and have finally made the

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decision to strike off this rule and say no, doctors, hospitals, and non-governmental medical

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providers are subject to the same jurisdictional rules as far as lawsuits as any other defendant.

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The special rule that gave them extra protection that said, sorry, you have to sue them in whatever

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county the work was done in. That is no longer the case. Yeah. And so the question is, why does it

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matter? And I was actually practicing medical malpractice before those rules took place. I think

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it was 2003. But why it mattered is because before 2003, if a patient was hurt in a medical malpractice

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case in Butler or in Lawrence County, PA, and it's against an entity that also practices in Pittsburgh,

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I could choose whether I want to sue in Lawrence County or in Allegheny County. And the logic behind

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it is, and the stats, I believe, prove it, is that plaintiffs will receive higher jury verdicts in

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larger cities. And Philadelphia, because it's larger than Pittsburgh, has a reputation for high

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jury verdicts. The rural counties where residents tend to be more conservative, you see a lot less

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verdicts. And even though you've seen this, where we'll talk to defense lawyers about settling cases

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or whatever, and they'll say, well, the highest verdict ever in Cambria County is a low number.

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So the doctors looked at it as forum shopping. Well, you're picking a better venue. It happened

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in Butler County. Therefore, you have to sue there. And that was that way until now, correct?

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That's right. And, you know, it's not the word, the phrase forum shopping is interesting. The

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default rule under the law applicable in all kinds of cases has always been the plaintiff gets to

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choose where they bring the suit. Now there are rules governing, you know, I can't, I can't sue

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someone who's never been to California in California if there's no minimum contacts there,

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right? The jurisdiction isn't that open. And the rules remain in place as far as choosing the right

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venue or forum here. Someone who's injured in Pittsburgh and their medical care is in Pittsburgh

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and all of the evidence and the witnesses, they're all in the Pittsburgh area. You're really not

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going to be able to just go sue in Philadelphia because they give you higher verdicts, right?

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You can file out there and then the defendants will make a motion. It's called forum non-convenience,

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which is what it sounds like. It's an inconvenient forum where they say, hey, look, the parties are

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all going to have to travel across the state for everything. This is crazy. There's no reason to

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have this in Philadelphia. It should be in Pittsburgh instead. You know, so it's not as if

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everyone in every county is now going to be able to bring their suits in Philadelphia.

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But you're going to have some measure of freedom. There's a lot of these practice groups that

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practice in multiple places. And maybe you, you know, live in Allegheny County, but the

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procedure happened, you know, in a cranberry facility. And so you're technically over the

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border into Butler County, but you're here and your doctor also practices here. That person's

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going to be able to sue in Allegheny County and not Butler County because the group is practicing

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in multiple locations and so on. So it is going to open the door in some cases. And the other

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thing to remember is the cost of actually pursuing one of these cases, especially in kind of an

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outlying county can be more expensive, especially if you're getting a trial, because you got to pay

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your expert witnesses to get out to whatever county and whatever courthouse you're in.

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So consolidating in the cities can arguably be, you know, a little bit more expensive.

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But you can also possibly be beneficial to everyone's pocketbook, the defense experts and

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the plaintiffs experts. And that's an argument that's now open to you. When the defense shows

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up and says, Hey, this is the wrong form. You need to move this case to, you know, Cambria County or

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Clearfield County or whatever, and say, well, well, no, I mean, you can bring it in either place.

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And here are the benefits and the reasons why having this litigation in Allegheny County

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has an experienced medical malpractice trial attorney. Would you recommend that people injured

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in a medical malpractice case pick jurisdictions such as Allegheny or Philadelphia, if possible,

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under this new change in the law? It's not quite one size fits all, right? There may be circumstances

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and you have to consider all of them in your case. But generally speaking, the reason that

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plaintiffs attorneys want this rule removed and the specific argument that the insurance companies

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have been making against forum shopping is premised on their understanding and knowledge

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that generally speaking, the jury verdicts are higher in Philadelphia, in Allegheny counties,

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in the more populated counties. The Supreme Court addressed this and said, well, you know,

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look, if the jury pool is determining the outcome of the case, that's not fair anyway.

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We shouldn't be forcing people to kind of pick their venue based upon that. But if the defendants

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are saying that these high verdicts are somehow unfair to them, the Supreme Court disagreed

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and said, look, there's no windfall in these medical malpractice cases. It is simply not true

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that somehow a smaller verdict in Armstrong County is right, but a bigger verdict in Allegheny County

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is wrong. The Supreme Court said, no, these are serious injuries with lasting consequences

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and real victims here. And we aren't interested in encoding in our rules of civil procedure,

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a policy whose express purpose is to keep jury verdicts down and thus keep insurance premiums

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down and everything else. That's the rationale behind the rule that went away. So I would say,

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if the insurance companies think that it's bad to let you bring your case in Allegheny County or

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Philadelphia, that's pretty strong evidence that you should at least consider it where it's possible.

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Yeah. So to summarize, the breaking news is I look at this as a win for victims of medical malpractice.

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I think this is good for the plaintiffs. It's not the absolute ability to pick wherever you want to

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file a suit, but it's opening the door and it's moving the needle back towards plaintiffs where

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I think it's been in favor of the doctors and hospitals for at least the last 20 years. Anything

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else our listeners, potential clients need to know? Yeah. I mean, so this could become a showdown

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again where the legislature can come in and pass a law that reestablishes the old rule or whatever.

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So it does kind of open up a potentially limited window to take advantage of this rule once it

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comes into effect, which by the way, doesn't come into effect until January of next year

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when the new rule actually gets propagated. So there's nothing you can do right now. The

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old rule remains in effect for the rest of the calendar year. But yeah, look, medical malpractice

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plaintiffs should have the same rights as every other plaintiff, whether in professional negligence

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cases or any kind of case to select the forum that makes the most sense to have their case heard

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fairly expeditiously and efficiently. And right now the medical malpractice plaintiff is back on

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even footing with everyone else. So it's certainly good for plaintiffs to give the plaintiffs the

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choice to sue where they think justice can be found. That's why it's the default rule in every

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other kind of case. Awesome. Hey, thank you, Bill. If you've been a victim of medical malpractice,

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if you have a loved one who you think has been a victim of medical malpractice,

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there is a statute of limitations. So don't wait. Have your case reviewed. And if you have questions

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about medical malpractice, visit our website, pghfirm.com. And now we're going to do our mailing

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it in segment where we answer questions submitted by you, the listeners. The mail never stops. It

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just keeps coming and coming and coming. There's never a light up. It's relentless. The more you

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get out, the more it keeps coming in. And then the barcode reader breaks and it's public. She's

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clearing out. All right, all right, all right. This question comes from listener Adam G. And Adam

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asks, given the premiere of She-Hulk, attorney at law, what is your opinion of representing

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individuals who have superpowers and how could that change the legal process?

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Superpowers, huh? Well, I mean, superpowers. I mean, I'm confused by the question. I don't know

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this She-Hulk narrative. I think I understand the question, though, but I like to have things

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more clearly defined. Well, well, I'll note this. She-Hulk is a currently airing kind of lighthearted

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series from the folks at Marvel. It's a cousin of the original Hulk, Bruce Banner. She is female

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and she is a practicing attorney with Hulk superpowers. What's her superpowers, though?

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What what are the Hulk? She turns into a green monster. Yeah, a big, giant, green, super strong

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super being. Nice. Incredible strength. The only difference is she's in control of her powers,

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whereas the original Hulk was not. No, he was not. Love that show. Yeah. So look, obviously

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there's OK, maybe I shouldn't say obviously I was going to say obviously there's no such thing as

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superpowers, but it depends on how you think about or conceptualize that. Right. There are,

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for example, professional fighters, whether you're a boxer or an MMA person or someone with

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extensive training. And if that person gets into a fight and injures somebody, they bear a higher

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level of culpability. I don't know if it's actually true that there are people who have to register

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their fists as deadly weapons, but that was always kind of a thing that existed notionally

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in the cultural landscape. What is the five fingers side of the face? What? Stop. And I know this.

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If I'm representing someone who's a trained fighter who gets into a fight and hurt somebody

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really bad in a bar, the fact of their training matters. The fact that they have a higher level

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of lethality matters. And I think the same would be true of superpowers. Noah, have you seen any

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of the Marvel movies? It doesn't matter which or how many I believe I have. I mean, um, wasn't

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X-Men part of the Marvel movies or no? Yeah. Yeah. The X-Men now, now the technically they were kind

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of siloed off from the Marvel cinematic universe, but they're being brought back in. It's a very

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complicated issue with the X-Men. They'll get there eventually. Not a lot, but any of it works

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for the purposes of there is a ton of collateral damage in real life. Even if they're out there

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doing good, you know, when you smash up a city, right? If you're, if you're the X-Men and you're

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ripping, uh, you know, Magneto's ripping RFK stadium out of the ground and kind of dropping it,

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um, kind of in, you know, by the Washington monument or whatever these, these sorts of things,

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can you imagine how many of these heroes would get sued from people who are injured or property

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that's injured or damaged? Um, because they didn't take reasonable measures to make sure that while

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fighting whatever, you know, earth changing thing they're fighting, um, they didn't take reasonable

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measures to protect people, property, people's wellbeing and health. Um, and, and they would be

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required to do so. It's just a reasonable man's standard, right? Um, and they would be responsible

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for not having taken better protective measures. But what, give me using your example of the boxer

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whose hands are lethal weapons, what better standards should they use? What do you, what

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use that analogy for me? Well, so again, the, the standard here is to understand the, like the

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reasonably foreseeable consequences of your action. More than most people, someone who's a professional

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fighter knows the damage that can happen if they pop some amateur in a bar and knock them out or

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cause some grave injury to them. So here's where I'm, I'm having trouble. My disconnect before

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processing the argument is trying to think of other real life examples. So you used the boxers

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with his fists and I'm trying to write down some examples. Do you mean like, what about a race car

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driver being used in a getaway? Does that matter? How about a green beret who's able to commit some

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murder because he was skilled at murder? Does that elevate the crime? Is that what we're analyzing?

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Well, I'm more analyzing the civil as opposed to criminal consequences, but let me suggest

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something else. If you are driving a tractor trailer, um, the damage you can cause by a

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mistake when you're driving a vehicle that's that big, that heavy, uh, is greater. And I think you

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need to be more aware. Everyone should be aware, right? This isn't a unique standard. It's not like

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only superheroes shouldn't, uh, just shouldn't smash up cities. And it's not like only professional

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fighters shouldn't knock people out at bars. Uh, but you have to be aware. And when you're aware

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of the increased risk that your own abilities or power or the weight of the vehicle you're driving

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create, you need to be careful and fully appreciate the risk that you pose. Interesting. So it's going

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to the standard of care. And I mean, it's almost the direct opposite where I wouldn't be qualified

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to drive an 18 wheeler, which could be used to prove liability. But you're saying the converse

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is also true because of your special inherent abilities. You have a higher standard of care

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and may have liability when some people don't. Is that correct? Or at least that your liability

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is heightened. Uh, even if it's not a simple yes or no, where everyone over here has liability

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and everyone over here doesn't. You know, if you're in a bar and Floyd Mayweather junior is in a bar

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and both of you get a drink spilled on you and you both punch the guy and the result is the same,

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I don't see a difference in the level of culpability. Well, let me add a little something

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here. If, what if someone was a mind reader could actually read other people's minds?

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How would that change the legal process? What if we could all read each other's minds?

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Look, I think in terms of changing the legal process, the law's always evolving. And we talked

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about this before from why do we have seat belts? Why do we have airbags? Um, I don't know. I haven't

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seen she hope. I don't have an easy answer for this one. I think you're right though. The law

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would have to adapt, but it would adapt. And I think in some sense it will have to, right?

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Whether we think of them as superpowers or not, technology is changing, right? Um, you know,

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we'll reach a point where the way people are getting, you know, whether it's physical or

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kind of brain implants or the kind of transhumanism stuff, everything that's encoded in memory, you

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could, you could upload, you could basically store your memories, um, as a backup. Um, you know,

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I think that's further away than the people who are really into that sci fi, uh, think it is,

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but that doesn't mean it's never going to happen. The future is going to be weird.

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Taking specifically the mind reading hypothetical, right? If there are in fact mind readers, they

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become some version of, you know, human polygraphs. And, you know, you can imagine having to instruct a,

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you know, a juror to disclose that so that, you know, so that you're not subjecting individual

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people testifying, um, to those kinds of powers. You know, it's hard to know depending on the power

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and the circumstances, what it is that the courts would do to adapt, but the courts are designed in

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some way to, to kind of try to find procedures that re equalize the playing field. And if something

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as crazy as superpowers come into being, that really tilts the field and it poses a real challenge

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for, for lawyers and for the system to figure out how to adapt. Isn't in real life money, a kind of

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a superpower in the courtroom, money is Batman superpower, right? Uh, money is also something of

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a superpower in the legal system. And, and, you know, it's, it exists in tension. Um, money gives

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you some real and lasting advantages. It's hard to overcome that in the law as anywhere else,

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but the law more than anywhere else strives to be a place that allows you to challenge someone

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who there's no other venue available. It is, it might be at least in theory, the place where you

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can best offset the advantages that money provides. Uh, but, but also it doesn't exist in, in some

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kind of abstract isolation. So, uh, that's a superpower that's going to be with us now and

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through the end. Yep. All right. Well, I'm just thankful anybody took the time to send us an email.

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Very nice. Thank you. Thanks Adam. Thank you everyone for joining us for this episode of

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I strenuously object. Keep your ear down for any more news in the, in the medical malpractice world

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and please do rate, subscribe and review the podcast. Tell your friends to check us out.

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If you have any questions for our mailing it in segment or any other podcast feedback,

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send us an email at iobject at pgh firm.com or we have an Instagram that's at I strenuously object

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podcast that, you know, is long but accurate and most definitely us. So we can, the I strenuously

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object podcast on Instagram for any more information on medical malpractice or other legal matters.

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Visit the Flaherty Fardo website at pgh firm.com and until next time, some parting advice.

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See your future, be your future. May make, make it, make it, make your future, Danny.

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Noah, are we adjourned? We are adjourned.

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The purpose of this podcast is a vanity project by Noah and Bill and should not be relied upon

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for legal advice. It does not constitute advice of any nature. We are not providing any services

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to anyone who is listening. Listeners acknowledge that they are not being provided advice from us

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or any of our guests. Podcast is for private, non-commercial use and our guests and their views

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do not necessarily reflect any agency or organization or company that they work for.

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I think many of the opinions expressed don't even necessarily reflect the opinions of those

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people speaking. We don't know you. We don't represent you. Please do not rely on anything.

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We say is legal advice. Thank you.

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