In Pennsylvania, your insurance company will include in its subrogation claim your deductible, if any.  If your insurance company collects less than the full amount of the damage or has to hire an attorney to collect the damages, it is permitted to reimburse you for only a proportional share of your deductible, according to the Pennsylvania Insurance Regulations. 

            A potential class action was recently filed in Pennsylvania challenging the applicability of this Pennsylvania insurance regulation.  In Jones v. Nationwide, 2010 Pa. Super. 90, the Pennsylvania Superior Court recently upheld this regulation, relying on a federal court decision.  Hence, insurers are still entitled to prorate reimbursement of your deductible under the appropriate circumstances.

      In 2004, Ohio passed a law limiting verdicts for pain and suffering to $250,000 except in catastrophic cases, restricting punitive damages and making it harder to take a case to trial.  Healthcare costs have continued to increase there despite this legislation.  According to the Kaiser Family Foundation, by 2008 the average family healthcare premiums were $11,425, an increase of 19%.  

     Neighboring Kentucky, on the other hand, did not enact similar legislation.  Nevertheless, Ohio’s increase in healthcare costs were greater than the increase in healthcare costs in Kentucky. 

     Pennsylvania, so far, has not enacted this type of legislation.  Let’s hope that the Pennsylvania legislature continues to protect victim’s rights in bringing lawsuits for fair compensation.

            Castenada sued the United States under the Federal Tort Claims Act. He also sued the Public Health Service employees for constitutional violations.  After Castenada died, his heirs became plaintiffs. 

            After several appeals, the United States Supreme Court has recently dismissed the lawsuit  against the Public Health Service employees.  According to the Court, the only legal remedy here is against the United States under the Federal Tort Claims Act.  If the case had been allowed to proceed against the Public Health Service employees, different rules would apply.  There would  be a trial before a jury. It would be governed by uniform federal rules rather than state law. Punitive damages would be available. 

            The Castenada family is not left without a remedy.  During the appeal, the United States filed a formal notice admitting medical negligence under the Federal Tort Claims Act.  The case was remanded to the district court for what will be a trial on damages only.

             In 2003, Pennsylvania enacted an abatement law to reduce or eliminate MCARE providers’ required contributions to the MCARE Fund.  To fund the abatement program, Pennsylvania established a special account known as the HCPR Account.  The HCPR Account was, in turn, funded by increased cigarette taxes and a traffic violation surcharge.  

            From 2004 to 2007, Pennsylvania appropriated $737,000,000 to the HCPR Account.  Pennsylvania, however, failed to transfer from these appropriations a sum that ranged from $446,000,000 to $616,000,000 to fund the MCARE Fund. 

            The Pennsylvania Medical Society sued the Pennsylvania agency responsible for the HCPR Account. The Commonwealth Court recently ruled in favor of The Medical Society.  The Court decided that Pennsylvania is required to transfer all of the allocated money from the HCPR Account to the MCARE Fund.  

            In terms of the so-called malpractice crisis, the Court’s decision makes an interesting statement.  Pennsylvania’s position in this lawsuit was that the MCARE Fund can meet its current obligations without the transfer of the disputed funds. This is consistent with the statistics that show that malpractice cases in Pennsylvania have been decreasing, not increasing.

            There are three distinct types of “disclosure and offer” programs.  To discourage lawsuits, each of these programs encourage candid disclosure about medical injuries, apologies when appropriate and providing for the patient’s financial needs, in at least a limited way.  

            Early resolution of malpractice claims is a laudable goal. Some of these programs, however, require the patient to give up his right to sue. This compromises the rights of an injured victim at his most vulnerable moment. 

            Malpractice reform should focus on improving healthcare. It should also focus on disciplining the “repeat offenders” who are responsible for much of the problem.

            Also according to the Pennsylvania Supreme Court, for 2008, the most recent year available, the doctor, hospital or other medical provider won in over 81% of the medical malpractice lawsuits filed.  Here in western Pennsylvania, the medical providers also won the malpractice lawsuits most of the time.  For instance, in Allegheny County the jury found in favor of the medical provider in 14 out of 17 cases, which is 82.4% of the time.  Of the three verdicts for the patient, one verdict was for $500,000 or less and two verdicts were between $1,000,000 and $5,000,000.           

            Doctors and medical malpractice liability insurance companies often claim that medical malpractice lawsuits are driving up insurance costs and driving doctors out of the state.  With the dramatic decrease in malpractice lawsuits, however, this statement simply cannot be true.

            This motor vehicle wreck occurred in Munhall Borough, Pennsylvania. As the plaintiff pulled his car into an intersection, he was struck on the passenger side by a truck coming up the intersecting street on his left.  The plaintiff had a stop sign, but the truck driver did not.  This presented a challenge in proving that the truck driver was responsible.  

            An accident reconstructionist, an engineer, testified for the plaintiff.  He explained to the jury that based on his observations and measurements at the scene and the damage to the vehicles, he was able to recreate the path of the two vehicles.  There was no dispute that the plaintiff had stopped before entering the intersection.  According to the engineer, because of the unusual configuration of the intersection, the plaintiff’s view to his left was limited.  The truck, on the other hand, was speeding as it approached the intersection. If the truck driver had been traveling the speed limit, he would have had an opportunity to stop before impact.  

            The plaintiff was taken by ambulance to the hospital.  They found that he had a broken acetabulum (hip socket).  He missed several months of work as a cook in two local restaurants.  He had extensive follow up treatment for his injuries. 

            The jury returned a verdict for the plaintiff for almost $65,000.  The jury also determined that the defendant was 70% at fault while the plaintiff was 30% at fault.  

            The trial judge denied the defendants’ appeal.

            Under Pennsylvania law, an auto accident victim with limited tort can only recover for out-of-pocket expenses unless he has a serious injury.  A serious injury is a serious loss of a bodily function.  

             Here, Harlan had three surgeries and forty physical therapy sessions.  He missed work and could not fully participate in certain recreational activities such as archery, hunting, fishing and working on automobiles.  The court decided that there was a legitimate question whether Harlan suffered a serious injury. Harlan’s case will go to trial.

            As requested by Means’ attorney, the trial judge subtracted the $75,000 from the $100,000 jury verdict, reducing it to $25,000.   Pusl filed an appeal.

             On appeal, the Pennsylvania Superior Court, clearly misreading the Pennsylvania Motor Vehicle Financial Responsibility Law, sustained the trial judge’s decision.  Section 1722 of the Financial Responsibility Law prevents an injured plaintiff from recovering from a negligent defendant money paid as first-party benefits (typically payment for medical expenses or lost wages), workers’ compensation or benefits similar to first-party benefits.  The Superior Court incorrectly concluded that underinsured motorist benefits fall within this section. Underinsured motorist benefits, in fact, are treated separately in a different subchapter of the law.   The end result was that Means and his automobile insurance company got the benefit of the $75,000 paid by State Farm, not Pusl. 

            The Pennsylvania Supreme Court has recently denied Pusl’s request to take a further appeal.  Therefore, this poorly reasoned decision by the Superior Court remains the law in Pennsylvania.  It will have a wide ranging affect on future plaintiffs who have claims against both a negligent driver and an underinsured motorist insurance company.

             For more information on underinsured and uninsured motorist claims, check out my Car, Truck and Motorcycle Accident Practice Area on this website.