No Free Bites

NeuwirthLawCase Matters, For Lawyers, Insurance

Dog bite cases trouble insurance companies because it is very hard to question the dog about his motives. I say his because I have never had a female dog bite a person. I’m sure it happens all the time, but not in my case files.  Dogs can do a lot of damage or a little damage depending on the dog and size of the person.

If you are a mail man and get bitten, that seems a little bit like a known occupational hazard to me. That is not to say that you should get bitten.  However, first it is a workers compensation case, so the post man is compensated for lost hours and medical bills. But, usually dog bite punctures to adult post men are about the lowest payout or recovery on the sliding scale of injuries to clients. The highest recovery would be to a young person bitten on the face.  The next are severe injuries regardless of the person’s age. Finally, multiple punctures on a child are valued more highly than punctures to an adult. There is a general understanding that adults should be able to deal with the dog bite punctures a lot better than the child should who is more likely to be traumatized and literally scarred for life.

While each victim bears their scars differently, the value of these cases really does depend upon our preconceived notions of what the victim can handle or should be able handle balanced against the severity of the injury.

In Pennsylvania, there are no free bites for doggies. However, some notice of dangerousness is needed in non-severe cases. In severe cases, the law does not require any notice of dangerousness at all.  The aptly named Pennsylvania Dog Law (1) The dog has done any of the following: (i) Inflicted severe injury on a human being without provocation on public or private property. (ii) Killed or inflicted severe injury on a domestic animal, dog or cat without provocation while off the owner’s property. (iii) Attacked a human being without provocation.

More often than not, the dog owners are at fault in ways that are simply not apparent to the owner. For example, letting a dog out in the back yard should not be the sum total of their exercise. It is simply not enough for most dogs of any size. Dogs that never interact with people outside the home or with strangers are very likely to bite people when they feel like their people are in danger or their home is being invaded. Plus, with energetic and muscled dogs like pit bulls, they need to be exposed and socialized in the real world. It is nearly impossible to pen a dog up in the home and expect nothing to happen when a stranger comes to the yard or in the home. Of course the dog is going to act differently.  The visitor is new and strange and the dog is not used to that. My dogs will bring you a toy. Other dogs will come ready to attack or protect their owners. If you don’t know enough about dogs to register the difference between labrador retrievers and pit bulls and how they will react, then you should not have dogs.

Regulators Waking Up To Persistent Negligent Conduct: Med Spas

NeuwirthLawInsurance, Medical Malpractice, Standard of Care, Uncategorized

From the movie Brazil, directed by Terry Gilliam

Regulators recently posted warnings to the national community that many med spas were potentially dangerous to their customers.  What is wrong with med spas? Well, if you go in for laser hair removal and there is no doctor monitoring what is going on or training the aestheticians, the potential for harm is higher than it needs to be.  Do you ever see a doctor when you go for laser hair removal? Probably not.  Why? Because the doctor is usually an investor in the med spa.  You cannot use a laser without a medical license holder being responsible for the laser, but that is usually where the doctoring ends. So, you have a highly sensitive and dangerous medical device being wielded by people who are probably fully trained to use it but not licensed in the nuance of the devices. It normally is not a problem unless you have skin that is overly sensitive to the laser, slightly pigmented, etc. When a problem develops, the customer is burned in sensitive areas and often the customer is then treated as a customer rather than a patient. Many times, people come to me after being burned by lasers and then mistreated in follow up. If you are burned by a laser, you should seek burn treatment and be treated by a doctor and not by an office manager. Why do these problems develop? Because the med spa business touts the business as a way for internal medicine doctors to make extra money without extra work. It’s a side hustle. But many internal medicine doctors are not trained to deal with lasers and are not specialists in burns or complications. So, you end up with crappy care as a result of someone’s side hustle being outside their area of expertise. It is very hard for the customer to figure out if they are at a good or bad med spa and hence the general warning from the regulators.


Link to article:

Regulators Waking Up To Persistent Negligent Conduct: Nursing Home Neglect

NeuwirthLawCase Matters, Elder Care, Medical Malpractice, Standard of Care

Victim of nursing home neglect.

The New York Times and Harvard Public Health completed studies which found that hedge fund investments in nursing homes resulted in worse customer service than before the investment. What is wrong with nursing home investments by hedge funds? Well, as a general rule in business, employee payrolls total about 50% of the business’ expenses. If you can reduce employee head count you are doing well in business in the name of efficiencies. But, if you are taking care of the elderly and particularly dependent, mobility impaired, or cognitively impaired people, reducing the head count of your nursing or other staff is a recipe for poor care. Reduced staffing correlates closely with reduced quality of care. So, aggressive cost cutting by an investor is not a good sign for your loved one’s health. It’s fairly simple.

I handle a few nursing home cases annually, but I prefer the clear cut ones to the general neglect cases. Two fractured hips in a nursing home in a year is evidence of clear negligence. A patient leaving the premises or elopement, is another clear example of negligence. But, there are many, many cases that I simply cannot get involved in. Poor care that results in a worsening of a debilitated patient is a common theme. Frustratingly often, people come to me to complain that their loved one was not properly attended to and got worse during their nursing home stay. It is plain to me that this is the result of reduced staffing or reduced hours or some sort of business decision by the nursing home ownership. But the prospect of proving how someone worsened from debilitated to more debilitated is not an appealing case to me. It simply holds little potential reward for me as a business. So, absent some federal or state intervention, the neglect will continue. It is ironic that I am forced to forgo pursuing some cases for the same financial reasons that the negligence is occurring in the first place.

Link to Article:

Last Issue for 2023

NeuwirthLawBest of, holiday

Things to do: 1. Fix the Eagles; 2. Lose weight without Ozempic; 3. Finish writing first novel; 4. Grow Business; 5. Hope daughter gets into college. I am guessing that #5 is going to work out okay, but it’s a stressful time for every family with a high school senior looking at going to college.


NeuwirthLawCase Matters, Courts, For Lawyers, Insurance, Slip and Fall, Sue The City


In the next week or so, I will be posting the three day bench trial transcript of a recent slip and fall trial I had. It should be on my website. This is a slip and fall case which occurred at a TSA checkpoint at PHL resulting in my client fracturing her knee and requiring surgery. Since both TSA and the City of Philadelphia are public entities and the trial is a public event, the transcript is readily available and for public consumption. We still have to wait for the judge’s decision on the case. But, if you want to see an entire trial from start to finish with openings, closings, experts etc. it is there for your review.  Fillmore v. United States.

As litigating lawyers, we all have highlights and lowlights of our trial and deposition work. One of my recent favorites came following a discussion with a more senior lawyer. The defense expert in the above case asserted that my client whose knee is filled with surgical hardware, has a long scar on the outside of her knee, and will have permanent trouble walking up stairs had reached “maximum medical improvement (MMI).” Now, for the non-lawyers, this sounds like the client is doing grrrrrrrrreat! I had not encountered this situation in an actual trial where a defense expert was saying these words because MMI, as a term of art is usually reserved for workers compensation cases and I do not do that. So, the following cross examination developed:

Mr. Neuwirth: I don’t want to make light of the situation, but if a person has their arm torn off in a machine in a factory and they come to you with a fully healed arm that’s amputated at their elbow, that person may would have reached maximum medical improvement in your opinion and still be missing their arm, correct?

Counsel: Objection.

The Court: Overruled.

The Witness: Yes.


This was worth a chuckle and highlighted for the judge, who may or may not be experienced in the term MMI, that it really signifies that the person has healed but is not going to get back to their prior level of functioning. We all have scintillating successes and plenty of errors along the way. It is just the nature of trial work. It is a bit of a high wire act and knowing where to apply pressure and where to back off.

Anyway, have a wonderful Holiday season and a Happy New Year.


Do I try to negotiate cases to keep friends with opposing counsel?

NeuwirthLawCase Matters, Law Practice Management

That was a recent question from a client who questioned my valuation of her case. In fact, the opposite is true. On both sides of our cases, it is important that the opposing counsel recognizes that you know what you are doing and are able to pursue a case diligently to the end. We may not love the person on the other side, but I usually have very productive second or third cases with opposing lawyers once I have gone to settlement or trial against them. Being nice to opposing counsel does not change the valuation of the case. The case is the case. It may be nice if you like the other lawyer or respect them but it does not change the case value.

When both sides respect their opponent, then at least there is usually agreement on what the case is worth and what it could settle for. Then, the only trouble is the respective clients and their valuations.

The Paper Ceiling Ads and Failure to Diagnose Malpractice

NeuwirthLawCase Matters, Medical Malpractice, Standard of Care

Have you seen these ads trying to build public support for the idea that college degrees are not  the only important credential.  Regardless what the paper ceiling ads try to tell you or your local tradesperson says, completing college makes an enormous difference in your lifetime income in America. If lifetime income is not your focus, then I appreciate the paper ceiling ads attempt to make the college degree less of the be all and end all of credentials. However, college degrees like a lot of things in life build your credibility as an employee and allow for faster growth over time.

There are a lot of people for whom trades are going to be a great way for success over time, but it is currently not a way to grow one’s long term income prospects.  People will complain endlessly about how hard it is to find a plumber, but you still see 50 different plumbing company trucks driving around.  Why? Because the barrier to entry is fairly low.  No college degree required.  High school and solid on the job training as an apprentice. Since the barrier to entry is low, there is a lot of competition and not a lot of growth potential.  I may be screwing up economics, but that is how I see it.

In medicine, a lot of bad ER and primary care medical decisions are made by physician extenders, who are not properly supervised because the supervisors are way overbusy. The community of insurers and nurses attempted to employ physician extenders, Nurse Practitioners and Physician Assistants in place of doctors.  The intent is similar to the paper ceiling.  Maybe we don’t need the person with the medical degree went the thinking. Unfortunately, human biology and disease is very complicated and while the plumbers of the medical community, your primary care doctors, are being squeezed out of the profession, any physician with a hint of specialization simply cannot be replaced. If your education stops at a certain level of nursing or physician assistant, how are you going to recognize that something bad is going on with your patient?  You are not. So, the paper ceiling is going to present a problem. Do you mind the paper ceiling if it involves your toilet? Maybe not. Do you mind it if your disease is misdiagnosed and your life cut short or harmed? Probably.


NeuwirthLawCase Matters, Insurance, Law Practice Management, Medical Malpractice

The pandemic wrought a lot of changes in the practice of law just like any other business that was affected in a significant way. Interestingly, the nature of litigators is to be averse to changes in how the court system functions.  The pandemic familiarized everyone with zoom and it inadvertently made us a more efficient system. For example, I have not taken an in-person deposition since pandemic began. That is a big change. It has saved umpteen hours traveling around to defense counsel’s offices, saved tons of hours of witnesses or court reporters or lawyers being late and saved tons in parking expenses. In court, we now do conferences on everything except settlement and pretrial by zoom in Philadelphia.  This saves probably 8 hours per case and $100 in client costs.  I would have thought that this would hurt the defense bar because they would bill hourly for travel to conferences and discovery hearings and no longer could do that.  When I discussed this during trial with my opponent’s counsel, he said actually, they found that they were more efficient as they knew where their young associates were physically, knew that they were working, and were getting paid more because they were not billing at the lower travel rate and were instead doing actual work. So, this change to “zoom court” has helped both sides it seems and reduced costs for the insurers in legal fees. That will surely not trickle down to your insurance rates but that is another story.

In speaking to insurance agents recently, they are seeing insurers fleeing most markets and rates going up by 14% or more across all markets.  That means that your renewal rates for homeowners, auto, etc. will go up or have been going up.  Mostly this is because the insurers are losing money and need to increase their revenue.  That is not your fault, but it hurts everyone.  Rates going up are a roundabout way of reflecting increases in costs of repairing a roof or a bumper etc.  Stuff is just more expensive.  And then there are all the fancy new vehicles on the market.

Here is a quick story.  My wife was driving her Tesla Y, which is the required suburban mom vehicle to keep up with the joneses.  She was in an accident that was not the other person’s fault.  Let’s leave it at that.  The Tesla was severely damaged.  Everyone was okay.  The Tesla is still in the shop five months later because Tesla has been frantically trying to make new cars and has been lagging on making replacement parts.  The body shop guy is exceedingly apologetic but it’s ridiculous. As a result, the insurer had to pay its maximum amount of money for rental cars, the body shop has not been paid out fully, and we have been without a car for long periods.  The Y was the most popular purchased car in America last year with the Rav 4, so soon you will start to see the repair delays work their way through such that the insurers will want higher rates to insure these popular cars.

CSI Type Stuff


Jurors always expect every case to have a CSI level of investigatory work on it and it is nearly impossible to measure up to TV, which is of course, Fiction People!  It is very, very, time-consuming and unrewarding to try to get text messages from defendant’s phones or to show that someone was texting and driving before a crash.  Usually, texting and driving crashes are severe and it does not usually matter why the defendant crashed into you. It matters to you or the client A LOT.  It does not really matter to the lawyer.  We know the defendant was texting. There is no other way to explain the crash.  However, prying text messages out of a person’s personal Verizon account or worse a smaller carrier is really really tough.

I have a new case I am working on where there is a criminal aspect to the case.  The phone in question was properly seized and it has now taken a whole year for the text messages to be downloaded in Harrisburg by the state police.  A year is forever.  And that is with criminal charges at issue.  Civil inquiries work on a much slower track.

Jurors also love to see video of crashes, but most of my cases have no video.  The ones that do have video are damning for the defense and never go to trial because of the video.  Here is a video of a case that will never go to trial. My client is on the bicycle and is crushed by the car.  The car plainly never stops at the stop sign, never looks for passing traffic, and just flat out is at fault.  End of case right?

Well, the video was shot by a neighbors surveillance camera totally by accident.  Without the video, this would have been a he said/he said situation between the driver and the cyclist.  With the video, there is really nowhere to go here.  At the deposition, the driver conceded that he was 100% at fault.  He tried to say that there were school kids at the bus stop blocking his view of the cyclist, but again, the video busted that claim up.  And, the school district confirmed that there was no bus pickup that day as it was mid-August.

So, we really cannot create evidence when it is not there, unless we do an accident reconstruction and those are only usually used for paralysis or death cases where liability or fault is in dispute.  They are expensive processes that are only justified on occasion.



NeuwirthLawInsurance, Medical Malpractice, Standard of Care

Unfortunately, there is a lot of medical malpractice in our health care system. Usually, it is not the fault of individual practitioners but the fault of the system dropping the ball during handoffs of the patient from one service to another. For sure, there are bad surgeons and poorly trained ER docs, and mistakes made. But, most often, in the handoff of a patient from doctor to nurse to different hospital floor to different service results in key information being missed or lost.  There is a New York Times article detailing that doctors have turned to labor unions to try to fight off their ever increasing workload.  A higher physician workload has repeatedly been shown to result in poorer health outcomes for patients.  It’s really not in dispute. These studies follow on studies showing that less sleep for doctors also results in poorer outcomes.

Now what has triggered the turn to union organizing is that healthcare institutions have sought to increase efficiency at the cost of the doctors’ workloads.  For years the institutions tried physician extenders like PA’s and NP’s, which I suggest you avoid.  Then, when that did not help enough, the institutions piled more work on the doctors.  Then, during pandemic, a lot of docs simply retired or moved out of clinical care.  Those who are left are getting crushed with the volume.  Your average radiologist is asked to ready nearly 30% more films now compared to a decade ago.  Your average primary care doc is seeing 30 patients a day.  It is getting to be too much.  The inevitable outcome is poorer care.

The doctors are getting burned out and using unions to fight back.  It’s an interesting turn of events. Perhaps nursing home nurses will take notice and make their way to unions next.

All this efficiency is great if it improves things.  It’s not so great if people are dying as a result.