Airbags Went Off Is A Good Case

Andrew Neuwirth Auto Accidents

Car front windshield cracked and airbag explosion damaged at claim the insurance company.

This episode addresses cases where airbags go off and those where there is minor damage to me as a serious injury lawyer.

Transcript

Good morning, and welcome to ask Andy, this is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. This is sponsored by my law firm, Neuwirth Law Office. We are in King of Prussia, but most of my cases are in Philadelphia, so my marketing guy tells me I need to keep saying this is not legal advice. So I think you’ll find this is not legal advice, but it’s kind of a picture into what I do and how I look at things. And, you know, I would guess that I’m kind of representative of how most personal injury lawyers look at things. So I wanted to talk to you today about really why airbag deployment is significant in a case a lot of cases when the case comes in. They are what they are. The case doesn’t change that much over the course of a year or two that it takes to resolve it. Usually there’s a big crash or there’s a small crash, there’s a big injury or there’s a small injury in the airbag cases. You kind of, you know, you know, from the beginning that, you know, you had a big crash. There are a lot of cases where the airbags don’t go off. And you know, there’s reasons for that that are kind of more sensor based or scientific base. But look, airbags don’t go off.

That’s one kind of case, even if it’s a huge crash. Airbags do go off. It’s another kind of case. But the significance is that when your airbags go off, the car is usually destroyed. The person, the driver is usually injured and sometimes the passenger is injured. Sometimes they’re not. If there’s rear passengers, sometimes they’re injured, sometimes they’re not. But the significance is that you’ve got a big crash and a big crash is always going to take care of the fact that someone in a small crash or a little, you know, small property damage claim may not think that the crash was that big. The person who hits you may say, Oh, I was only going five miles an hour, but in the airbag situation, like, no one’s really going to doubt you had a big crash. So that’s kind of what the insurance company is trying to game out early on is like, look, did you have airbag deployment or not? Airbag deployment means there was, you know, a decent amount of speed and impact, and the impact was basically either head on or hit your, you know, driver’s door or something like that. So why does that matter? Well, you know, we handle a fair amount of low impact cases where people are pretty seriously hurt, but it’s harder for a jury to wrap their heads around the idea that you had, you know, twelve hundred dollars in damage to your car.

But you know you’ve got a year of treatment after that or you’ve got back pain that’s not going away. So but in the in the airbag situation, like you kind of took care of that because someone turned left in front of you or someone hit you on the side and your side airbags go off. So that’s kind of the first part is that, you know, we took care of the crash was severe when the airbags go off. Usually, people with airbag deployment have, you know, fractures because there’s so much energy in the crash that you know parts of your body break, whether it’s your arm or your shoulder or your collarbone or your sternum, you know something breaks. If something doesn’t break, you know, it’s less clear what happened. But you know, no one’s really going to think that you weren’t in a big crash. So, you know, my experience is that most cases with airbag deployment are going to get solid offers, you know, valuing the case at, you know what, I think they should be very fairly valued at. So what’s the takeaway? The takeaway is, look, if you have airbag deployment one, you know, you were in a serious crash. Two, everyone else knows you were in a serious crash. Just based on the deployment and the pictures after the fact.

Yeah. So that’s easy enough. Now what’s the flip side of that? The flip side of the easy case is the harder one and the harder one is when there’s a low impact, but a long, lingering injury. Ok. So, you know, let’s say I’ve got plenty of cases where there’s like $1300 in property damage, which is minimal. Maybe someone had to just pop your old bumper off and put a new bumper on. But you know, people have the passengers in the car, have a concussion or they have low back pain that’s not going away. You know, soft tissue injury is what the insurance company says. Oh, it’s soft tissue injury, therefore. doesn’t count for anything. Well, that’s not really fair, and it’s not really true. If you have soft tissue injury that lasts for a year, you know that’s pretty serious, it’s pretty serious to you, it’s pretty serious to me. And it’s a pain in the ass. So, you know, you don’t want to be taking these kind of major pain medications because you have nerve pain from, you know, a little what you thought was a little fender bender. So what do we do with those cases? Well, those cases are cases that are going to be closer. They’re going to go to trial or they’re going to get in a situation where they need to be negotiated because, you know, can you win those cases? Yes.

But you’re fighting an uphill battle a lot of the time because the first impression to a juror is that there’s not much damage. And most jurors will think, oh, not much damage means not much injury or not much impact or not much energy or not much force. Now that’s not actually true based on what we’ve learned over time, trying these cases and talking to experts. You can have a concussion where you don’t actually hit your head on anything. Where just your brain sloshes back and forth inside your skull and causes injury. You know, if you’re wandering around with a preexisting, you know, minor back injury and you’re rear ended from behind and you weren’t expecting it, you know, you can have back pain that just doesn’t go away. Maybe you can’t do your job anymore. Maybe you can’t do things at home. Maybe you can’t enjoy your life anymore just because of this, you know, problem, this back problem you had that wasn’t bothering you. And that’s how a lot of these cases develop now is that person who’s got back pain. Does the client understand or do you understand that you’re going to have more of a fight on your hands? Yeah, of course. People, you know, over the time, over time, people have to understand.

And that’s my job as a lawyer and their job as a client to listen and evaluate what’s going on in the case and what’s going on is you’re going to have a fight on your hands, but that’s OK. That’s my job. I like fighting with people. So, you know, I know I’m going to have a fight, but you know, it’s it’s a question of, do you want to have the fight in court or do you want to have it in a negotiation setting? Do you want to turn down crappy lowball offers or do you want to wait for a good offer? These are all the decisions that go into that now. How do you know if you’re negotiating an airbag case versus negotiating a sort of slow minor impact case? Are you going to take lower money on the minor impact for the same exact injury? Yeah, you are, because your chances of success are lower and it’s going to be a harder row to hoe. It’s a longer trip through the court system with the minor impact cases. But look, they’re legit cases and people are legitimately hurt and doctors believe that their pain and their injury is from the accident. All right, that’s enough for today on kind of the easiest and the hardest of cases. I’m asking Andy. Have a great day. I hold people accountable.

 

Injured When Airbag Did Not Deploy

Andrew Neuwirth Ask Andy Podcast, Auto Accidents

Robot crash test dummy sitting near destroyed car crash test.

This episode addresses people injured when airbags do not deploy and when it makes sense to file a lawsuit in my experience as an injury attorney.

Transcript

Good morning, and welcome to Ask Andy, this is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. You can find me on the web at Neuwirthlaw.com. I wanted to talk to you today about people who want to sue car companies when their airbags don’t deploy. Ok, so you know, why is that a personal injury case or situation? Well. It’s a personal injury case, usually because, you know, people who are injured when their airbags don’t deploy usually can blame somebody other than themselves for their injuries. You know, if you are in an accident and you feel like your airbag should have deployed, that’s probably a pretty serious accident, first of all. Second of all, you’re probably injured enough that you should talk to a personal injury lawyer. But there are about 9000 situations where airbags do not deploy and they run the gamut, you know, from here to there. So why do airbags not deploy? Well, primarily if you are not hitting something head on your steering wheel airbag is not going to deploy. I don’t know if that’s scientifically what happens or not, but that’s my experience is that I’ve had clients hit jersey barriers on the Schuylkill, and if they don’t hit it head on, dead on, the airbag doesn’t go off. So kind of like offset crashes, I think they’re called.

 

Sometimes the airbags won’t go off. You know, if it’s I’ve seen situations where they’re low speed crashes or this or that or the other thing who knows, but you’re in an accident, you’re injured, your airbag doesn’t go off. Do you want to sue the company that made the car or the company that made the airbag? Really, for the most part, you don’t, with one exception, if you are paralyzed, dead or, you know, so seriously injured that you really can’t ever get back to normal life. That’s, you know, a situation where you should be talking to me about, can we sue Toyota or Takata, who makes a lot of the airbags or this or that? But short of that, you know, do you really want to be fighting these large auto insurance companies or the airbag manufacturers about the airbags? No. For the most part, there’s a good reason why the airbag didn’t deploy. That’s how they’re designed. And, you know, they shouldn’t have deployed, and that’s what you’re going to find at the end of the day. So but why is there still a case there? Well, there’s a case there because you can sue your your own insurance company. You can sue the other insurance company. But trying to sue the airbag company or the auto company is largely oftentimes a fool’s errand unless you have really serious grievous injuries.

 

Ok. So, you know, for example, I’m working evaluating a case where a guy died and the it turns out that it looks, by all accounts, that the deceased person’s death was really his fault. He drove into, you know, he was driving recklessly and he, you know, drove into a situation and he died. Now the airbags went off. But, you know, didn’t save his life. So is that a case where you could sue the airbag company? No, because they went off. Did they protect him from death? No. Is that a case where you can sue the airbag company? Probably not, because he, you know, was driving recklessly or driving too fast and the airbag wouldn’t have made a difference. I’ve had other situations where, I mean, years ago I had a situation where a woman was not wearing a seatbelt. The airbag did not go off and she was launched in a, you know, decently serious accident kind of into the windshield and bounced back off the windshield into her seat and had a broken bone in her jaw and a broken bone in her back. And she wanted to sue the airbag company because the airbag didn’t go off. Now, first of all, she wasn’t wearing a seatbelt.

 

So, you know, she kind of launched over where the airbag would have exploded into her. And further, if you’re not wearing a seatbelt, the airbags are really not designed for that situation, and they can actually cause more harm because that’s a kind of your body’s going over the airbag, you know, impact point. So it’s kind of launching you up, you know, or back, or it’s apparently more dangerous to have an airbag in that situation. But the airbag didn’t go off. She wanted to sue the company because the airbag didn’t go off. I ended. You know, that case settled for the policy limits. All the insurance that was available and I basically told her like, I’m not going to sue the airbag company here, you know, one because you’re not badly enough injured to make the case worthwhile and two, you know, even if you even if the airbag did go off, it’s not clear that it would have helped the situation because you weren’t wearing your seatbelt and you’re already like kind of a projectile at that point. So, you know, look, the only times when we really sue for seatbelts or for airbag, you know, failures is an extremely serious, you know, paralysis or death situations. And that’s just because look financially like, do you want to spend $100,000 to pursue Takata? Or, you know, for a case where there’s only $50,000 in insurance or where that’s, you know, fifty thousand is the value of your case? Do you want to spend one hundred to get 50? No.

 

What’s going to happen? Well, client’s not going to have get any recovery. Client’s not going be happy with the lawyer and client’s not going to send the lawyer of future people or future business and the lawyers, you know, even if the lawyer works his or her ass off and, you know, wins, you’re going to win nothing. So that’s not a good idea. That’s not, you know, part of our role in life is not to make people unhappy with us. So look, that’s airbags. Unless you’re grievously wounded, you don’t want to sue the airbag companies or the auto companies if your airbag doesn’t go off. There’s often reasons why your airbag doesn’t go off that are not the result of negligence. And I can talk more about that if you want to talk off line. All right. That’s about enough for today. This has been Ask Andy. This is sponsored by my law firm Neuwirth Law Office. We are a King of Prussia personal injury practice, handling plaintiff’s injury cases only outside of Philadelphia. That’s it for today. Have a good day. We’re in the middle of pandemic and I hope all is well.

 

Airbag Injuries: fractured sternum, eye injuries, burns, and wrist injury

Andrew Neuwirth Ask Andy Podcast, Auto Accidents

Airbag caption on the car wheel

This episode discusses airbag injuries including a fractured sternum, chemical burns, vertebra fractures, collarbone fractures, and eye injuries.

Transcript

Good morning and welcome to ask Andy. This is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. I’ve been away for a while during pandemic, not podcasting, so it’s good to be back in the saddle. I want to talk to you today about injuries from airbags. So I’ll talk on other days about, you know, when your airbags go off, when they don’t go off. But this is specifically about what happens when they do go off. So basically, you know, I’m not an expert in airbags, but I’ll tell you that there’s a little gas inflator. And the goal of the airbag is obviously to save your life and not have you go crashing into the steering wheel or into the dashboard or through the window. So assuming you’re wearing your seatbelt and the airbag inflates, you know, in a split second when you hit something, you know what happens? So you hit the seatbelt, then the airbag essentially hits you in the face and chest and it slows the impact pressure on you. But there’s still a lot of energy going into your body and that energy becomes dangerous. So a lot of the initial injury from an airbag is usually, you know, people complain a lot of times about chemical burns on one or both arms just from the chemical that’s used to inflate the airbag in such a rapid manner. So there’s gas released. It burns your arms. It’s not, you know, at the end of the world, but it’s upsetting. And you know, the gas, the chemical burns are painful.

So that’s usually the first thing that happens at accident scene as people are, you know, have these kind of lightly burned inside of their arms? The next thing is when the airbag goes off, oftentimes, you know, it’s meant to slow you down and it does. But that impact often causes a fractured sternum. So what’s the sternum? Sternum, you may know is like the little bone kind of in the middle of your chest. It’s like below your nipple line, but it’s right above the it’s kind of soft part of the top of your abdomen. So you know it’s where your ribs connect. It’s a very, very, very sensitive part of your body. But you know, at the same time that it’s very sensitive, there’s actually very little that can be done to help you with a fractured sternum. So it’s kind of, you know, the fractured sternum and the fractured pelvis are kind of known as some of the more painful injuries you can have. There’s very little treatment for them. You know, if you have open heart surgery, most of the time, they just let that fracture because they have to open up your sternum to get to your heart. Most of the time, they just let you heal on its own, but it’s very, very tender and very, very painful. So it’s not like a cast they can put on. If you have a displaced sternum fracture, you know, sometimes I think they will try and knit it together with wire. But I haven’t seen that happen from airbag injuries. So, you know you have this fractured sternum.

It’s very painful. It’s like six to eight weeks of just dealing with exhausting pain, but it does get better. So, you know, all other times people will compensate with their arms or just be told to kind of take four to six weeks off work when that happens. Other injuries I’ve seen are broken collarbones because the airbag on a smaller, particularly on a smaller woman, the airbag won’t hit you in the chest, it’ll hit them in the collarbone. So you collarbones or, you know, right below your neck and they actually break fairly easily, but they also heal fairly easily. And you know, if you have to have surgery on a broken collarbone, it’s a fairly routine surgery, but obviously not fun. You know, other injuries that result are sometimes, you know, in women with osteoporosis, particularly, you may see a spinal fracture in the thoracic. That’s the kind of the middle of the back. And usually they correspond with the level of the airbag and the sternum. So boom, the airbag goes off, hits you in the sternum. That pressure is still going backwards and you’re pushed into the back and you have weak kind of brittle bones to begin with and you end up with a fractured vertebrae or a fractured collarbone. What other injuries are there that, you know, stem from airbags other than those? So those are kind of the easy ones. The harder ones are sometimes people get glass from the, you know, surrounding accident part problem in the car like some part of glass.

Some breaks in the car and the airbag inflation forces it into your eye and you’ll get, you know, either cornea damage or real, you know, more serious eye damage that needs to be looked at immediately. But people don’t think about, Oh, I had this airbag explode, I’m having eye problems. They just are like, Wow, I’m a tremendous amount of pain from burns, ore from a fractured sternum or, you know, just being through this whole thing they don’t think about, Wow, there’s this other, you know, something’s wrong with my left eye vision. So that’s just something to be aware of. And, you know, usually what happens at the scene is, you know, bystanders come kind of get the airbag out of the way, pull you out of the car and then EMS or police or hopefully there to kind of get you checked out. So that’s pretty much like airbag injuries, but airbags going off tells you that you’ve got a serious crash. Oftentimes, their crashes where you know someone turns left in front of you, you’re proceeding through a green light with, you know, normal flow of traffic. All of a sudden, there’s a car in front of you and boom, you crash into it and your airbag goes off. There’s a whole other discussion for when airbags are supposed to go off, when they don’t go off this, that and the other thing. But the key kind of takeaway is that, you know, airbags going off are intended to save your life. There’s been a lot of litigation over Takata. I think it’s taking a airbags and the inflators there.

We’re either acting in a manner they weren’t designed for or they were designed in a negligent or destructive manner. That’s something we can talk about if you need help with that. But you know, there’s been a lot of litigation around airbags, but you know, in your basic car accident, you’re going to be injured by your airbag. But the intention is to save your life and not injure you. So, you know, that’s pretty much it on airbag injuries. It’s they’re pretty clear, they’re pretty immediate. And you know, they’re going to be there because of the accident and not because of anything you did or the other person did. It’s just the nature of that crash as a head on crash at high speed with the airbag deploying. And then for whatever reason, you know, it’s catching you in a manner that is going to cause some injury, you know, but it’s one of those things where we’re trying to save your life instead of just your sternum, which you can recover from. So this podcast is sponsored by my law firm, Neuwirth Law Office. I’m a King of Prussia personal injury lawyer that’s in the suburbs of Philadelphia. I’m happy to talk to you, people email and call all the time with just general questions, and you know, we’ll be having some guests in the near future on the podcast. All right, I hope all well. I hope you’re enjoying our bizarre life in a pandemic and see you next time I hold you people accountable.

 

What Hath The Pandemic Wrought in Personal Injury?

NeuwirthLaw Uncategorized

What hath the Pandemic Wrought

First, the Courts are still very backed up. Currently, Philadelphia and its suburban venues are bumping their longer and hence more involved cases to 2023! So, auto negligence cases with only one defendant and one plaintiff are getting trial dates. Cases with more than one defendant or that will take more than a week of trial are getting triaged by the Court.  This presents a huge logistical challenge for us, as lawyers, because we don’t really know with any certainty when cases will go to trial.  While being nimble and flexible is part of being a busy trial lawyer, most of us have dealt with this uncertainty by agreeing to a lot more mediations or binding arbitrations than would have happened in the past.  I think this will probably get better over 2022.  Certainly, the insurers agree with this view as they have begun trying to settle cases more regularly than they did in 2021.

Second,  I don’t think that there is any reason to require in person depositions in the future.  I prefer the zoom depositions, except for certain aspects.  Far, far less time is wasted in getting a zoom deposition to conclusion. Often, travel time, coordinating court reporters, dealing with inclement weather and similar issues is a huge time suck in getting depositions completed. However, with zoom, there really is little reason for your opposition to not agree to a deposition date. It is simply less intrusive for clients on both sides. What is lost? Well, something is lost in not seeing a person’s reactions in person. With expert witnesses, it gives the expert more time to figure out an answer to a tough question.

Who Ya Gonna Call?

NeuwirthLaw Case Matters, For Lawyers

who ya gonna call

So, you are laboring away working on a deal for a client whose company is growing rapidly.  Aunt Irene calls you because you are the only lawyer in the family.  She was just in an accident in Philadelphia over the weekend.  What do you do?

Should you handle the case yourself? No.  Like every other area of the law, personal injury is highly specialized. Much of my expertise depends on knowing the value of various injuries in today’s climate, knowing the venue, knowing the personalities of various insurers, knowing how to calm agitated clients who are injured, knowing how to get their car paid for, their medical benefits set up, and figuring out what their coverage may be and what liens will arise. While you could learn all this, many non-personal injury lawyers will miss subtle but important points and hurt their family member’s case. So, refer the case out to me instead.

Should you just have her call one of the big advertising law firms? No, again. Aunt Irene deserves better. I cannot tell you how many clients of mine were fed up by their treatment at the large personal injury mills, where they only get to talk to a paralegal about their case.  Large, high-volume personal injury shops end up with a lot of client complaints.  I do not.  Aunt Irene deserves better.

So, why me? Well, Aunt Irene will get my personal attention along with that of my paralegal. Second, unlike a lot of personal injury lawyers, I have not been hurt by the pandemic. Most firms with lots of secretarial and paralegal staff have let go rafts of support staff just to keep afloat. I have always kept a financial fortress balance sheet for good times and bad and am not in desperate straits like a lot of the personal injury bar. A desperate personal injury lawyer is not a good thing. They look to settle cases for lower than full value just to keep their business afloat.  Also, unlike many injury lawyers, the insurers know that they will get a real fight from me and that I am unafraid to go to trial. In the midst of the pandemic, I tried a case to verdict in Chester County, which is a notoriously defendant friendly venue.

The Expert Witness

NeuwirthLaw For Lawyers, Medical Malpractice

expert witness

                Expert witnesses are a necessary evil in your run of the mill personal injury case. We are not allowed to simply say that our client broke her wrist in the crash when her airbag went off. Even if the client’s medical records support this statement. The allegation that the other driver’s negligence caused your wrist fracture must be supported by qualified medical testimony and that testimony must be subject to cross-examination. The medical records alone are considered hearsay as they are an out of court statement offered into evidence to prove the truth of the matter. The actual person making the statement of causation in the medical record must come in and testify to her opinion. Or, the record is not admissible and you cannot prove your case. Nine times out of ten, doctors of any expertise do not want to participate in litigation. Why is that? Because, litigation is a pain in the butt. Lawyers are unreasonable. We want you as the doctor to make judgments that a lumbar disc injury was definitely caused by the car crash and doctors generally don’t worry too much about what caused what. Their job is to treat the patient, not decide how the injury occurred.

So, what is the solution? Well, while I would much prefer to have the client’s treating doctor give her opinions in the lawsuit, I am not usually so lucky. So, when clients’ doctors do not want to participate, we hire physicians who have a side job as an expert witness. Often, these experts will make more money doing expert work than they do in their medical jobs. However, what is important for me is that experts are well-qualified and experienced in dealing with cross-examination. There are good and bad experts on both sides. There are some who are way overused and some who are too old to keep up with changes in medicine, the law, or the lawyers. For example, an orthopedic surgery who no longer practices surgery loses a lot of credibility in my book. Or, a neurologist who makes $250,000 annually working for insurance companies and rarely working for plaintiffs. In both cases, the defense expert is easily characterized as not wanting to lose their $250,000 income and hence they always find that the insurer is correct, the plaintiff was not harmed and the crash or incident did not cause injury.

What is most helpful in my cross-examinations is when the defense expert is not fully prepared. That often becomes apparent when they were not given the chance to examine my client or when they were not given my client’s deposition. In auto negligence cases, most of the time, defense counsel are too busy to fully prepare their experts and hence their experts are left hanging out to dry when they are cross-examined.  In medical malpractice cases, where the stakes are often higher in dollar value, the defense experts are far better prepared and better credentialed on the defense side.

I strongly believe that you should not be crossing a defense expert unless you are able to go toe to toe with the expert on the medical basis for their opinion. You don’t have to be an expert in spinal surgery to cross a surgeon. But, you do have to be able to show that there are holes in their opinion. If you cannot do that, you are not fully prepared in my book. There are experts who are simply good experts and are hard to cross. That is part of lawyering. But, I have run into too many of my colleagues who don’t do the hard work because they don’t think that they can ever cross a doctor and win. That is the best part! When the doctor says, “you are right” to me during a cross, I know I have won the case. The last time that happened the defense lawyer asked for my card and asked if he could send me cases in the future. That’s a win!

 

Nursing Home Malpractice And Broken Hips

Andrew Neuwirth Ask Andy Podcast

This episode addresses cases involving nursing home patients breaking their hips in my view as a medical malpractice lawyer.

Transcript

[00:00:07] Good morning, and welcome to Ask Andy, a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. You can reach me at 215-2598-3687 or on the Web at Neuwirthlaw.com. These podcasts are archived on SoundCloud. So I wanted to talk to you today about nursing homes and nursing home staffing. So if you’re in my business and personal injury practice or in medical malpractice, it is well known that nursing homes are poorly staffed. There was a recent, you know, National Institute of Health study saying exactly what practitioners in the field know, which is that nursing homes are poorly staffed. This is not surprising to us. However, you know, the nursing homes are largely for profit institutions. A lot of them are owned by hedge funds. They try and run them in a lean fashion, meaning, you know, the fewest employees possible to draw out the most profit. And you know, if you’re a business person, you know that. Employees are the largest cost in any business. So what are you trying to do if you’re a nursing home operator to try and reduce the number of employee hours? How does that affect you as the consumer or you as the patient? Or more likely you as the parent or the child of a parent who’s got into a nursing home? It means there’s less care for you. It means there’s less supervision of your loved one. What’s the reason you put someone into the nursing home in the first place? It’s because they weren’t safe at home, usually whether they were physically unable to walk upstairs or they were declining cognitively or mentally.

[00:02:07] And they, you know, couldn’t remember how to pay their bills or take their pills or, you know, so on and so forth. Any number of things that happen as we get older. So the parent, you know, the family couldn’t care for the parent anymore, and we want them to be cared for. And they were, you know, we found, you know, you worked hard to find a nursing home that you thought was good and safe and boom, you know, within six months, you realize that there is not enough care for your mom or that your mom’s not getting, you know, a full range of her services or this or that. Or maybe, you know, you’re very happy with the place. And, you know, mom or dad has one incident that devastates them, like they fall and they break a hip, or they have two falls and they break two hips. A lot of the nursing home cases we see are ones where, you know, people are unhappy with the care their parent has received. And that’s, you know, to a great extent, upsetting and unfortunate, but doesn’t make truly doesn’t make a case that’s worth pursuing in court. So a lot of people come to me and say, Well, can you just write a letter? You know, I don’t write letters in that situation. I will essentially decline the case or turn the client away because in my experience, I’ve never written a letter that got much in the way of any effect in a in a medical malpractice or nursing home negligence case.

[00:03:40] They’re just there cases that are fought out and examined and and inspected with great care, and they’re usually high value cases. So we don’t mess around with ones where it’s a close call. And frankly, you know, I’m a spouse of a physician. I’ve dealt with a lot of physicians on both sides of of plaintiff and defense work. You know, physician judgment, nurse judgment is is something that is serious. Like, you know, patient care is not easy. It’s challenging. And most physicians can tell you there have been situations where, you know, they weren’t thrilled with their own care or they made tremendous saves and tremendous, you know, benefits for the patient. So we don’t mess around too much in cases where the judgment of someone is at issue. But in cases where there is a clear breakdown in what the nursing home is supposed to be doing, those are cases we pursue when there is a clear breakdown of policies, procedures or clear negligence. So, you know, what does that mean? For example, someone comes in they’re a fall risk because they have, you know, a bunch of medications and they’re a little demented. Does the nursing home do a bunch of things to make sure that they’re OK? Yeah, sure. Maybe they put a bed alarm. Maybe they put it this. Maybe they put a mattress on the floor.

[00:05:08] Eventually, maybe that person has a fall. Ok, then they need extra precautions now. But when that second fall comes around, they break a hip at the second fall. You know, that’s the sort of thing that we’ll start getting. You know me interested or my ears perked up because, you know, the first fall is maybe a signal to the nursing home that something’s not right in how this person is being monitored. But the second fall that injures the patient or breaks their hip and causes further decline is really a problem because it’s going to set the person back physically. It takes rehab and rehab for demented people is very challenging, and ethically, the doctors don’t really like to, you know, force demented people through physical therapy. So, you know, usually it’s not the first one that that causes the lawsuit. It’s the second one that’s sort of on the fall aspect. But you can see that if there were more staff taking care of patients, it would be more expensive for the nursing home. But the patients might get better care. There might be a one to one, meaning someone supervising your family member at all time. Or there may just be more nurses. And if they see the person wandering down the hall when they’re not supposed to be wandering, they do something about it. I like to believe that, you know, 90 percent of the population are well-intentioned people. And, you know, I’d like to believe that similarly, 90 percent of the nursing home seniors or friends are all well-intentioned and.

[00:06:46] trying to do their best, but there just aren’t enough of them to watch, you know, 40 people on a ward. So, you know, it’s not that the nurse or the R.N. or the CNA is doing a bad job, it’s just that they’re, you know, they can’t possibly do a good job given the limitations of how many there are versus how many patients there are. And this, you know, acuity of the patients, meaning how severely impaired or how severely sick they are in a nursing home situation, you know, can be pretty concerning. You know, if you have a lot of demented people, you need to be extra careful that they’re not wandering off or acting, you know, acting inappropriately. So, you know, that’s how most nursing home negligence cases come to me to be evaluated is that there’s some clear break from protocol. You know, Mom had two broken hips in the course of six months or someone was assaulted by an out-of-control resident or someone, you know, one of the nursing homes sometimes will pop up with having, you know, unfortunately, a oftentimes a male aide has been sexually abusing demented patients. There are a bunch of situations that are just clear negligence and never under any circumstances acceptable conduct. And frankly, like, you know, what I’m here for is to hold those places accountable when they can’t uphold even their own standards of care. So that’s enough for today on nursing homes and negligence. Again, this is Ask Andy and I hold people accountable.

 

Medical Malpractice War Stories

Andrew Neuwirth Ask Andy Podcast, Medical Malpractice

This episode discusses cases where there are medical disasters and a medical malpractice attorney is needed to evaluate medical records and identify who was responsible for negligent care.

Transcript

[00:00:06] Good morning, and welcome to Ask Andy, this is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. You can reach me at 215-259-3687 or on the web at Neuwirthlaw.com. I wanted to talk to you today about medical malpractice war stories, so I guess I practice medical malpractice law for about a little less than two years in New York City, at a firm that defended malpractice cases. And then I eventually moved to Boston and practiced about another six or seven years there, defending medical malpractice cases in Boston. And now I handle medical malpractice cases from the other side as a plaintiff’s attorney here in Pennsylvania. So but over the course of time, you know, I got some war stories for you about, you know, what a medical malpractice case looks like and what they don’t look like. So when I was a young lawyer about four or five years out of law school, I was getting ready, maybe six years out of law school. I was getting ready to leave New York City to join my fiancee out of state, and I was working as a defense lawyer and there was a case that was in my office that had kind of hit the front page of the New York Post, our local, you know, tabloid for obvious reasons. A young boy was in a car accident, was rendered unconscious in a really bad car accident, and he was taken to a local hospital and brought into an MRI scanner after some other testing and basically to evaluate his, you know, brain injuries and an MRI scanner is basically a huge magnet.

[00:02:07] Someone at the hospital screwed up and left his oxygen tank in the room. When the MRI scanner was turned on, the boy was in MRI scanner and the oxygen tank was sucked into the MRI tank, into the MRI scanner and killed the kid. Kid never regained consciousness after the car accident, and that was the case, so it was an awful story. It was on the cover of the paper. You know, it was a case that was going to get settled fairly rapidly. You know, one of the lawyer issues in the case, really, the only lawyer issue to defend the case was that the kid was never conscious after the car accident, so he couldn’t have suffered, you know, pain and suffering that he was aware of. And that was really the only thing that, you know, one could address as a potential defense. The only question in that case was really, you know, who was responsible? Was it a nurse? Was it the hospital? Was it a hospital employee? And how much insurance was there to cover the case? Because, you know, obviously someone had screwed up and broken with policies and procedures.

[00:03:17] You know, there’s a lot of signs around saying, you know, if you have a metal plates in your body, you can’t have an MRI. If you have a pacemaker, you can’t have an MRI or something like that. So whatever the rules are, were plainly not followed in that situation. So that was one. You know, there are others over the years which are, you know, equally horrific. There was a I worked on a case at one point where there was a mix up in. Pathology slide reviews, so basically, let’s say you have a possible prostate cancer tumor. A doctor takes the sample, they make a slide out of it, you know, on a piece of glass like maybe you saw in biology class in high school and they look at it to see if there’s cancer cells. But in this day and age, there’s a lot of slide review needed and there are labs set up to review a lot of slides. So there were a lot of different patients slides on a bench being read by a pathologist and slides from Patient A got mixed up with slides from Patient B because they were all just sitting next to each other on the table. Slides that had cancer were mixed up with slides from a patient who didn’t have cancer. The slides were read as cancerous. The patient was told you have prostate cancer and you need to have your prostate out.

[00:04:57] And his prostate was removed and once it was removed, they do another round of pathology to make sure you know that they got it right and they find there’s no cancer there. So what happened? A patient who never needed surgery, who didn’t have cancer, one was told he had cancer and two had his prostate removed for no reason at all, except for a mix up in the lab. Meanwhile, the other patient who has cancer, who needs his prostate removed, is going along fine and comfortable in the belief that everything’s fine. He doesn’t have cancer, and meanwhile, his cancer is growing, and that’s a mess. That’s a bad medical malpractice case, but it’s a bit of a caper. It’s a bit of a, you know, detective story to figure this all out. Eventually, it gets figured out and eventually the case is settled because there’s really no defense once you figure out the facts in that case. An interesting situation, not a pleasant one. Most of the medical malpractice cases that are really, you know, the devastating ones are ones where it’s not necessarily the doctor doing something wrong, but it’s a lack of communication, at least in my experience. It’s a lack of communication handing off a patient from one doctor to another or from one facility to another or something like that. So, you know, what does that look like? Well, you know, I had a weird case involving cauda equina

[00:06:24] syndrome. Cauda equina is actually kind of a little piece of your spinal cord. I believe that is dangles sort of below your coccyx like down kind of real deep into your into your pelvic area. And it’s kind of the end of your spinal cord. And there’s something called cauda equina syndrome, which is where that sort of tail end of your spinal cord is injured, usually by trauma, usually by a blow or a crush impact. And you can rapidly lose feeling in your legs and be paralyzed if that cauda equina injury isn’t figured out. So, you know, there was a case I was working on at one point where and this is all public, where a patient was injured in a weird accident and that they were, you know, their spine was hit during some recreational activity and they were otherwise healthy, you know, 40 year old woman and they went to the hospital because they were in a tremendous amount of back pain, which is one of the signs of cauda equina, but one of the signs of a lot of things. And the hospital said, all right, here are some back pain medication and let her go. And she came back the next day, she said, I’m still in tremendous back pain. I’m having kind of tingling in my toes now your, you know, nerves in your lower back, control your legs and they control sensation, you know, can you feel numbness or or pain? And they also feel motor meaning? Can they move your legs, move your toes, et cetera? So this was, you know, a patient who had been exercising over the weekend.

[00:08:14] She was in this, you know, traumatic injury situation, but not a car accident. She was just exercising and had a fall and a blow to the back. And so now she’d already been to the hospital once and they said, No, it’s just back pain. You’ll get over it. Most back pain resolves. She comes back. She’s still in tremendous pain, but now she’s got some, you know, concerning signs in retrospect and the doctors are seeing all right numbness and tingling still most likely just back problems. But then she rapidly, you know, decompensated so rapidly goes downhill and several of the doctors recommend a neurology consult. Neurology doesn’t see her for 24 hours, and by then, she’s got sort of what’s called dense hemiplegia, meaning she has, you know, real paralysis setting in, and by the time the recommendation is to go see neurosurgery, which is the correct recommendation, she’s paralyzed. And, you know, she goes in for a neurosurgical decompression of that area and they do the surgery, but it’s useless and she’s paralyzed from the waist down. And you know, as you can imagine, there are probably 10 to 20 providers who missed it now. Are all of them responsible? Yes and no.

[00:09:38] You know, does your ER doc have to know about cauda equina syndrome? Absolutely. Does your primary care doc or the person seeing you on the floors of the hospital during the evaluation? Are they responsible for diagnosing cauda equnina? Probably not, but they are responsible to understand that there’s been a change in symptoms and that they need to call for a specialist if it’s outside their area. Is the nurse responsible? Probably not. Are the nurses recording complaints or concerns of the patient or the patient’s family to the doctors? Yeah, so the nursing notes become very important in terms of how the patient’s presentation was changing. Now these are all, you know, evidence that can be found in the medical record. And sometimes people know to, you know, go see a lawyer, and sometimes family members just have concerns about what happened. So that’s the sort of thing those are, you know, very strong medical malpractice cases, but they do take some evaluation and reading of medical records. So that’s usually where most of these cases start is the ordering and review of your medical records. So that’s enough of war stories from medical malpractice cases from my career. There’s probably 9000 other ones, but those are the ones that jump out at me while I’m, you know, talking to you guys anyway. I hope all as well. Again, this is ask Andy. I hold people accountable.

 

Medical Malpractice “Never” Events Like Sepsis and Repeat Surgery

Andrew Neuwirth Ask Andy Podcast

This episode addresses my views as a medical malpractice attorney dealing with “never” events.

Transcript

[00:00:07] Good morning, you’re welcome to Ask Andy. This is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. You can reach me at Neuwirthlaw.com. So I wanted to once again talk to you for this week about medical malpractice. The numbers about the existence of medical malpractice as a cause of death of Americans are frankly astonishing. The most recent figures I’ve seen is that medical errors are the cause, the third leading cause of death of Americans behind like smoking and heart disease. All right. So we’re a big, fat country and we smoke too much sometimes. But at Med Mal, you know, we’re supposed to be the leading light, the best place to get health care in the world and we are killing our own people with errors. Now I say this take this with some sort of a grain of salt. My wife is a physician. I believe that most physicians are good at what they do and caring and all that stuff they are, you know, among the last sort of respected members of society. So however, there’s just a lot. It just seems like there’s a lot of bad out there and there’s, you know, explanations for it. Sometimes they’re just bad providers who commit malpractice over and over again. That’s been demonstrated in a bunch of studies in the Northeast. Sometimes transitions from one specialist to another, like if you go from the E.R. to the floors or you’re discharged and then you come back. Some of those transitions are problematic, and there’s a lot of nursing home neglect that, in my view, you know, is the result, you know, not of a physician doing something wrong, but rather, you know, a hedge fund or some other large corporation trying to make money off of your mom or dad.

[00:02:15] And if you try and make money, what’s the first thing you need to do? You need to cut employees. And if you cut employees, if you can’t cut any more employees, what do you need to do? You cut the amount they’re being paid. So then what’s the nursing home doing? They’re finding the cheapest people they can pay and have the fewest of them and overwork them to the point where, you know, it’s not surprising when someone gets crappy care, someone gets dropped and breaks a hip or breaks a knee and or someone dies from dehydration or other diseases that you know are thoroughly preventable. So, you know, there’s a fair amount of nursing home negligence that probably bumps up the deaths from medical malpractice numbers now. I think it’s kind of disturbing to hear that it might make you afraid of going for health care in America, but I don’t think that’s a reasonable conclusion. I just think that there’s, you know, needs to be a consciousness among people that you’ve got to be diligent about, you know, your loved one’s health care. If they’re getting treated, you know, you don’t want to be a pain in the ass, maybe. But at the same time, like you’ve got to be aware of what’s going on and what your medical history is.

[00:03:39] And, you know, be responsible. If a doctor tells you to go to physical therapy, you’ve got to go. If the doctor tells you to stop taking your blood thinner, you’ve got to do that, you know, with that being said. You know, my wife treats a lot of very sick people who are diagnosed with cancer or, you know, being treated for cancer. And there are a lot of people who, you know, modern medicine just can’t, just can’t save. And that’s not a failing of medicine. That’s not malpractice. It’s just, you know, everyone’s going to die of something. And there are just a lot of diseases that we don’t really have a good handle on. We’ve made a lot of developments, you know, in treating cancer particularly. But you know, right now we’re in the middle of sort of multiple flu epidemics and coronavirus. This and you know, is there stuff to worry about? Yes. Are you going to get good care at most hospitals and most Doctors’ offices? Absolutely. But you know what is? What’s there to do? There are certain things that should never happen. So one of them is, you know, for the most part, you should not bounce back in the lingo. You should not have to return to an ER after you’ve been discharged for the same condition. So let’s say you go to the ER, you’ve got terrible back pain. They discharge you saying you’ve got terrible back pain. Go see your doctor. And then all of a sudden, you know you’ve got numbness in your feet or you can’t go to the bathroom.

[00:05:10] Now, would that be significant to you? Might or might not. It should be. But whether it’s significant to your non doctor or your non-lawyer, I don’t know. But that’s certainly a sign that you better get your ass back to the doctor, to the ER right away. Forget about the doctor. That’s one of these. Don’t stop go things because it means that you’ve got pressure on your spine that is affecting your nerves and may be leading to paralysis. So that’s one of those things like if you’re discharged from the ER and you have to go back within, let’s say, 24 hours, it means the ER screwed up. Now maybe they can fix everything and you’ll walk out the door and be fine and happy. But if not, it’s a red flag. It’s a sign that something’s wrong. What other ones? Well, air embolism. What’s an air embolism? It means if you’re getting dialysis or your sister’s getting dialysis or your mom is getting dialysis and the machine pumps air into your body, your body’s blood stream is not supposed to have air in it. It acts like a clot. It causes strokes and death. All right. So if you have a death shortly after dialysis or at some point after dialysis, you’ve got to look at that. Medicare, who are the ultimate payers for people on dialysis, say this should never happen. What else is? You know, what else are never events? You know, Medicare says they’re never going to pay for IV infiltration.

[00:06:38] That’s not going to be a medical malpractice case for the most part, except in one sort of semi unique circumstance. What’s an IV infiltrate? An I.V. infiltrate is when the hospital usually leaves your IV in too long. An IV is, you know, just a catheter. It’s like a, you know, tube into your blood vessel. It provides medication, it’s antibiotics or fluid. But if they don’t change them regularly, they get infected. So they’re supposed to rotate them from arm to arm, from leg to leg, et cetera. But you’re supposed to do it every six hours or eight hours. I don’t know the exact numbers, but if you don’t do it and they get infected, what happens? Well, you’ve got a line right into your vein at that point. So if you’ve got an IV infiltrate and you’re not the healthiest of bears, let’s say you’re 65 year old person with diabetes. You know, the hospital basically without you realizing it just caused you to have a blood borne infection. Now, blood borne infection is much more dangerous than your topical. Oh, I’ve got a scratch and it gets red, OK, scratch and red. You can fix that pretty quickly. Blood borne infection often is called bacteremia means you have bacteria in your bloodstream. It causes, you know, your white blood cell count to go through the roof and in older people or in compromised people, or sometimes even in younger people who’ve had surgery and aren’t moving a lot. What do you get? You get something called sepsis.

[00:08:07] Sepsis is a serious blood borne infection that can cause death and often does. And modern medicine, you know, has spent a lot of time researching trying to figure out drugs to to treat sepsis. But once you got sepsis, you’re, you know, in a lot of you’re in a lot of trouble and you’re in serious medical condition. So that’s why we worry about small things like I.V. infiltrates that might not seem like a big deal, but Medicare has said this should never happen in the absence of negligence. So, all right, so you got I.V. infiltrates, you got air embolisms, you’ve got bouncing back to the E.R. Most surgeons will not take you back or not take a patient back to the operating room, you know, within 24 hours, much less within 30 days, because they get dinged on their hospital record. You know for that because it basically is an admission that they screwed up the surgery or something went wrong during the surgery. Does that mean you died as a result? No. But at the same time, you know, it’s it’s an indicia or indicator that something is wrong. So that’s enough on medical malpractice for today. Those are some examples of, you know, cases that might develop into an actual lawsuit. That being said, you know, once again, most doctors are good. Most doctors believe that they are doing the right thing, and most of them are doing great work. So that’s enough for today. I’m Ask Andy, I hold people accountable. Have a great weekend.

 

CONFIDENTIALITY AGREEMENTS AT SETTLEMENT

NeuwirthLaw For Lawyers

Confidentiality agreements are very popular with a lot of larger companies with a national footprint or multiple locations, facilities etc. So, what is a confidentiality agreement? Well, basically, in personal injury litigation, my area, a confidentiality agreement prevents the plaintiff from publicly proclaiming their settlement with x company and prevents them from disparaging the company or reporting it in social media. Generally, I do not think that these agreements are directed at the individual plaintiffs because it is rare that a plaintiff has any sort of broad reach.

The true target of these clauses is me. Companies like Uber, Home Depot, and most insurance companies will require confidentiality agreements at the end of our cases, because they know that there will be future cases, just due to the nature of their businesses and the number of people they touch. However, they do not want to let me cry victory over the defendant corporation for x dollars for x injury on my social media or website or elsewhere.  Further, they do not want to establish a track record of paying for cases pre-suit or accepting that a slip and fall in their store is worth $100,000. So, the confidentiality clause is really a bulwark against building a profile of how the defendant will react and how much they will pay in a given injury lawsuit.

In personal injury cases, most of our cases are filed in court and so they are public records for most of the case.  Confidentiality is generally pursued at the time of settlement. So, it seems weird to seek confidentiality when most of the case is a public record, but that is how it’s done.  The companies know that there is nothing confidential about the lawsuit or the underlying facts. Therefore, even if they went to court and sought a protective order or confidentiality order, it would not be granted. If the company asks me for a confidentiality agreement, I will usually agree to it as a courtesy. But, if the lawyer has not addressed it previously, their insurer or company may require it as a term of the settlement.  Often, confidentiality is not explicitly a term of the settlement. Rather, cases are settled for a dollar amount and nothing more.  Then, as releases are being exchanged and reviewed, confidentiality crops up in the discussion. Again, I take these on a case by case basis.  As the lawyer for the client, there is very little downside.  The risk is that the client jumps up and down on social media, but I have never seen that happen.  In reality, I have never ever seen a confidentiality provision violated or enforced. I take them seriously and apparently my clients do as well.

Finally, if the settlement is one that is worth reporting on or proclaiming as a significant victory, there is one pretty reliable way to address that.  Let’s say you settle a case for $775,000 and the defendant wants confidentiality so that you don’t proclaim that you beat the pants off of them and their customer was badly injured.  Often, I find that you could come to an agreement with Kohl’s, for example, that instead of a slip and fall with a fracture at a Kohl’s store for $775,000, Kohl’s counsel will likely agree to “fractured leg settled for $700,000 at big box store.”  That is vague enough that it is of no use to anyone other than your marketing.