Car mishaps involving collisions, deer, snow and ice, floods, thefts, vandalism, or other unfortunate events are common.  Here are some tips to help you negotiate the minefield of car insurance and repair issues.

Collision vs. Comprehensive Coverage
On your own car insurance policy, you can purchase insurance to protect your car from peril.  Collision coverage protects you from accidents which are deemed your fault.  If you crash into another car, building, tree, etc., Collision coverage will pay to fix it.  Comprehensive coverage protects you from damage caused by deer or other animal crashes, theft, flood, vandalism, or other events not involving collisions.  If your car is damaged by one of these events, your Comprehensive coverage will reimburse you.  If you finance or lease your car, you will likely be required to purchase Collision and Comprehensive coverage.  It is also a good idea to purchase this coverage if you have a relatively new car which would be expensive to repair or replace.  The cost of Collision or Comprehensive coverage can be reduced by increasing your deductible, which is the amount you have to pay yourself before the insurance company must start paying for damage or loss.

GAP (Guaranteed Auto Protection) Insurance
If your car is wrecked and “totaled” (cannot be repaired for less than its value), then you might end up owing more to your bank or lease company than your insurance will pay you for your car.  Insurance must pay the Actual Cash Value (ACV) of the car, which is often much less than you owe because vehicles depreciate in value quickly.  GAP insurance will make up the difference so that you do not end up upside down on your loan or lease.  If the ACV is $10,000, but you owe $15,000 on your loan or lease, GAP insurance makes up the $5,000 shortfall.

Tips for Totaled Cars
If the insurance company decides that your car will cost more to fix than its ACV, it will be totaled.  If the car was totaled because of a collision caused by another driver, you can make an insurance claim against that driver or with your Collision coverage.  Talk to your attorney and insurance agent to decide which would be best for you. 

When your car is totaled, consider the following: 

* Clean the car before it is appraised.  This can add to value. 

* Tell the appraiser about recent repairs and special equipment on the car.  Make sure that all of your car’s options and upgrades have been included in the appraisal and the car’s condition was properly rated. 

* Research car values and sales on the Internet.  Do not accept the first offer - negotiate a fair price. 

* Insist on a fair number of days in the rental car to allow you to find a new car.

Tips for Fixing Your Wrecked Car
The insurance company may try to steer you to their “approved shop.”  Beware of the potential conflict of interest.  If the shop does substantial work for the insurance company, there may be a motive to cut costs in repairing your car.  You have the right to choose where your car will be repaired.  Get a referral from someone you trust.  Check references and research the shop’s reputation.  Also, be sure to ask what parts will be used in the repair, Manufacturer Parts, After-Market Parts (non-Manufacturer but new), or Used Parts from a junk yard.  Although your insurance policy usually governs what type of parts can be used, you have a right to know what will be used and why.  If the collision was the fault of another driver, you can choose to go through the other driver’s policy or your own Collision coverage to get the car fixed.  Talk to your insurance agent, attorney and body shop about which would be better given your situation.   As with a totaled car, insist on a fair number of days in a rental vehicle while your car is being repaired.
 

Tim is a graduate of Widener University School of Law (J.D.) and the Temple University Beasley School of Law (Master’s Degree in Trial Advocacy).  Tim focuses his practice in Personal Injury law, including car, truck, motorcycle, bicycle and pedestrian accidents, slip and falls, dangerous products/products liability cases and medical malpractice.  Tim is a partner in the Chester County, PA, law firm of MacElree Harvey and has offices in Kennett Square and West Chester, PA, and Centreville, DE.  Tim is the author of numerous publications on Personal Injury law and writes a Blog providing news and information on Personal Injury law at www.macelree.com/traynelaw and is a columnist for The Kennett Paper writing a column titled “Legal Lines.”  Tim has also published two books on Personal Injury law:  “A Lawyer’s Guide to Purchasing Car Insurance” and “A Lawyer’s Guide to Personal Injury Cases.”  In 2007, Tim was named by Main Line Today as one of the area’s Top Personal Injury Litigators.  In addition, Tim is a member of the Million Dollar Advocates Forum which recognizes the “Top Trial Lawyers in America,” with membership limited to attorneys who have won million dollar awards and settlements on behalf of their clients.

Tim can be reached by phone at 610-840-0124, by email at trayne@macelree.com or on his Blog at www.macelree.com/traynelaw.  

The winter months bring snow and ice to Chester County, making for beautiful landscapes but treacherous roads, sidewalks and parking lots.  Slip and fall accidents from snow and ice are common and can result in legal liability to property owners, landlords and tenants.  Here are 5 Tips to Avoid Legal Liability from Snow and Ice:

1:  DEFINE WHO MUST CLEAR SNOW AND ICE:  In landlord/tenant situations, the issue of who is responsible to plow, shovel and treat snow and ice should be clearly defined in the lease.  The landlord should spell out who must clear driveways, parking lots and sidewalks.  If responsibility is placed on the tenants, the lease should provide that that tenant assumes all liability for slips and falls and the lease should require the tenant to purchase liability insurance.

In situations where a business or home has frontage on a public sidewalk, the property owner should research who is legally responsible to clear the sidewalk, the property owner or the municipality. 

2:  PROMPTLY CLEAR SNOW AND TREAT ICE:  Although Pennsylvania has favorable laws providing some protection to property owners from liability relating to snow and ice storms, ice and snow should be cleared promptly after a storm.  Often municipalities will have Ordinances specifying how quickly shoveling must be done.  Research and follow Ordinances and do your best to clear snow and treat ice in a timely manner.  If you allow it to remain and someone falls and is injured, you may face a legal claim. 

3:  DON’T FORGET TO TREAT ICE PATCHES:  After the initial snow or ice clearing, it is common to have melting and refreezing, which can create dangerous ice patches.  To minimize melting and freezing issues, think about where and how you pile snow.  Be sure to establish a regular schedule to salt and sand ice patches.  If possible, have a written schedule and keep records of your work.  This information would be helpful in defending a slip and fall lawsuit.

4:  PROPERLY MAINTAIN YOUR PROPERTY TO PREVENT SLIP AND FALL ACCIDENTS:
Ice patches often result from defective gutters or downspouts or improperly designed or maintained parking lots, driveways or sidewalks which allow water to collect and freeze.  Be sure to conduct regular maintenance to prevent ice patches.  Also, have and maintain proper railings on stairways.

5:  PROPERLY INSURE YOUR RISK:  Make sure that adequate liability insurance is purchased which will cover slip and falls on ice and snow.  Falls can result in serious injuries, like broken hips or spine damage.  Liability coverage should be high enough to cover serious injuries.

Wintertime can be beautiful, but also dangerous.  Snow and ice can result in slip and fall accidents and costly lawsuits, but the risks can usually be eliminated or managed through
proper planning and insurance.

Tim is a graduate of Widener University School of Law (J.D.) and the Temple University Beasley School of Law (Master’s Degree in Trial Advocacy).  Tim focuses his practice in Personal Injury law, including car, truck, motorcycle, bicycle and pedestrian accidents, slip and falls, dangerous products/products liability cases and medical malpractice.  Tim is a partner in the Chester County, PA, law firm of MacElree Harvey and has offices in Kennett Square and West Chester, PA, and Centreville, DE.  Tim is the author of numerous publications on Personal Injury law and writes a Blog providing news and information on Personal Injury law at www.macelree.com/traynelaw and is a columnist for The Kennett Paper writing a column titled “Legal Lines.”  Tim has also published two books on Personal Injury law:  “A Lawyer’s Guide to Purchasing Car Insurance” and “A Lawyer’s Guide to Personal Injury Cases.”  In 2007, Tim was named by Main Line Today as one of the area’s Top Personal Injury Litigators.  In addition, Tim is a member of the Million Dollar Advocates Forum which recognizes the “Top Trial Lawyers in America,” with membership limited to attorneys who have won million dollar awards and settlements on behalf of their clients.

Tim can be reached by phone at 610-840-0124, by email at trayne@macelree.com or on his Blog at www.macelree.com/traynelaw. 

I often get questions about possible legal claims arising out of poor outcomes from medical treatment.  The mere fact that a complication, injury or death occurred during medical treatment does not necessarily justify a Medical Malpractice case.  Instead, Pennsylvania law requires proof of several elements and the sworn testimony of expert witnesses before a case will be decided by a jury.  The following is an outline of the important legal concepts in a Medical Malpractice case.

Violation of the Standard of Care

Every medical professional must have the same knowledge and skill and exercise the same care normally used in that profession.  The professional must also keep informed of the contemporary developments in the profession and use current skills and knowledge.  So, every doctor, nurse, therapist, etc., must have the knowledge and exercise the skill of his/her peers.  This concept is commonly referred to as the Standard of Care.

In a Medical Malpractice case, the patient bears the burden of proving a Violation of the Standard of Care — that something that a peer of the Defendant would not have done was done, or that something that should have been done was not done.  This Violation must be proven through the testimony of an expert witness.  A professional in the same field as the Defendant must explain why the Standard of Care was violated.

Factual Cause

Once a Violation of the Standard of Care is established, the patient must also prove that the malpractice was a Factual Cause in bringing about harm.  Malpractice is a Factual Cause when it played an actual, real role in harming the patient, that there is a connection between the Malpractice and Harm.

Increased Risk of Harm

In Malpractice cases alleging a failure to timely diagnose or treat an illness, it may be impossible to prove whether malpractice actually caused harm.  In those cases, a patient can still prevail if it can be established that the malpractice Increased the Risk of Harm.  For example, if malpractice was committed in failing to timely diagnose and treat cancer, and this increased the risk of the patient dying or not achieving a full recovery, the doctor can be held liable for the Increased Risk of Harm.

Like with proving a Violation of the Standard of Care, expert testimony is used to prove Factual Cause or Increased Risk of Harm.

Damages

The final element of a Medical Malpractice case is Damages.  To have a viable Malpractice case, the patient must have suffered Damages as a result of the Malpractice.  The jury can award these Damages as compensation to the patient.  Recoverable Damages include Past and Future Medical Bills, Past and Future Lost Wages and Earnings Capacity, Past and Future Pain and Suffering, Embarrassment and Humiliation, Disfigurement and Lost Ability to Enjoy the Pleasures of Life.

Certificate of Merit

To protect medical professionals from unwarranted lawsuits, Pennsylvania has a Rule of Procedure requiring timely filing of a Certificate of Merit either with a Malpractice lawsuit or shortly after the filing of the lawsuit.  The Certificate of Merit must be signed by an expert witness and verify that, after reviewing the matter, the expert believes that there is a basis to conclude that the care, skill or knowledge exercised by the professional in the treatment of the patient fell outside professional standards and was a cause in bringing harm to the patient.  Pennsylvania’s Certificate of Merit Rule prevents the filing of frivolous lawsuits because an expert is required to review the case and certify that it has merit before the case proceeds through the court system.

Tim is a graduate of Widener University School of Law (J.D.) and the Temple University Beasley School of Law (Master’s Degree in Trial Advocacy).  Tim focuses his practice in Personal Injury law, including car, truck, motorcycle, bicycle and pedestrian accidents, slip and falls, dangerous products/products liability cases and medical malpractice.  Tim is a partner in the Chester County, PA law firm of MacElree Harvey and has offices in Kennett Square and West Chester, PA, and Centreville, DE.  Tim is the author of numerous publications on Personal Injury law and writes a Blog providing news and information on Personal Injury law at www.macelree.com/traynelaw and is a columnist for The Kennett Paper writing a column titled “Legal Lines.”  Tim has also published two books on Personal Injury law:  “A Lawyer’s Guide to Purchasing Car Insurance” and “A Lawyer’s Guide to Personal Injury Cases.”  In 2007, Tim was named by Main Line Today as one of the area’s Top Personal Injury Litigators and a “2009 Super Lawyer” in the area of Personal Injury law by Super Lawyers Magazine.  In addition, Tim is a member of the Million Dollar Advocates Forum which recognizes the “Top Trial Lawyers in America,” with membership limited to attorneys who have won million dollar awards and settlements on behalf of their clients.

Tim can be reached by phone at 610-840-0124, by email at trayne@macelree.com or on his Blog at www.macelree.com/traynelaw.

Going skiing, running or riding in a race, playing in a sports league or joining a gym are all events that customarily involve signing Liability Waivers.  So, if an accident happens and injury occurs, is a Waiver effective in protecting the institution from liability and preventing a lawsuit from the injured party?  The answer is that, if properly worded and signed, the Waiver is likely valid and will preclude legal claims for injuries.In the recent Pennsylvania case of Vinikoor v. Pedal Pennsylvania, Inc., Paul Vinikoor was injured during a bike tour and brought a lawsuit against the tour organizer, Pedal Pennsylvania.  Mr. Vinikoor complained that he crashed his bike and suffered serious injuries because of grooves in the roadway that Pedal failed to discover and warn him about.  Vinikoor claimed that Pedal had inspected the route, issued a cue sheet and route description informing him of certain dangers, but failed to notify him of the hazardous grooves which caused his fall.  Pedal sought a dismissal of the lawsuit, countering that Vinikoor had signed a Waiver form stating, in part, the following:

I hereby waive and discharge Pedal Pennsylvania, Inc. and any organizations associated with this event (including but not limited to municipalities, colleges and universities, high schools, sponsors, and any employees or associates thereof) from all liability as a result of my participation in Pedal Pennsylvania, whether caused by negligence or otherwise.

I understand that accidents, with fatalities, serious bodily injury and/or property damage can occur during bicycle touring, as a result of negligence or otherwise.  Knowing the risks involved I nevertheless agree to assume those risks and to release all of the persons or entities mentioned above for any injury, death, illness or property damages occurred (sic) on this tour or in the travel to and from this tour.  I also release Pedal Pennsylvania from all damage or injuries as a result of weather conditions during the tour.

Ultimately, the Court ruled that the Liability Waiver was valid and enforceable and dismissed Vinikoor’s claims.

The following are the general rules on Liability Waivers:

1. The Waiver must be clearly worded and unambiguous in its intent to relieve any and all legal liability, even liability for negligence;
2. The Waiver should be prominent and not hidden in the fine print of a long contract; and
3. The Waiver must be signed by the person who it is being used against.

Since Liability Waivers can be valid, there are two important lessons.  For business owners, the lesson is to make sure to draft clear and specific Waivers to be signed by your customers.  For consumers, the lesson is to read and be careful about what you sign, because you may be signing away legal rights.

Tim is a graduate of Widener University School of Law (J.D.) and the Temple University Beasley School of Law (Master’s Degree in Trial Advocacy).  Tim focuses his practice in Personal Injury law, including car, truck, motorcycle, bicycle and pedestrian accidents, slip and falls, dangerous products/products liability cases and medical malpractice.  Tim is a partner in the Chester County, PA, law firm of MacElree Harvey and has offices in Kennett Square and West Chester, PA, and Centreville, DE.  Tim is the author of numerous publications on Personal Injury law and writes a Blog providing news and information on Personal Injury law at www.macelree.com/traynelaw and is a columnist for The Kennett Paper writing a column titled “Legal Lines.”  Tim has also published two books on Personal Injury law:  “A Lawyer’s Guide to Purchasing Car Insurance” and “A Lawyer’s Guide to Personal Injury Cases.”  In 2007, Tim was named by Main Line Today as one of the area’s Top Personal Injury Litigators.  In addition, Tim is a member of the Million Dollar Advocates Forum which recognizes the “Top Trial Lawyers in America,” with membership limited to attorneys who have won million dollar awards and settlements on behalf of their clients.

Tim can be reached by phone at 610-840-0124, by email at trayne@macelree.com or on his Blog at www.macelree.com/traynelaw

On August 13, 2009, the Pennsylvania Superior Court decided the latest in a long line of cases addressing legal liability for injuries on the golf course. 

Facts of the Case

In the summer of 2007, Zeidman was playing with Fisher in a charity golf outing at Springfield Country Club when a duck hook hit by Fisher struck Zeidman in the face and caused serious and permanent injuries.  Just before the errant tee shot, Zeidman’s group was waiting on the tee box and had become concerned about the possibility of driving their balls into the foursome ahead of them while playing an uphill 301 yard par 4 hole.  As a result, Zeidman, who conceded that he was incapable of driving his ball into the group, hit his tee shot and then, with the agreement of his playing partners, got into his golf cart and drove on the cart path over the crest of the hill to determine whether the group ahead of them had cleared off of the green so that the other players in the group, including Fisher, could safely tee off.  Zeidman completed his reconnaissance mission and began his return trip on the golf cart path.  As Zeidman reached a point about 75 to 100 yards from the tee, which was well within the line of site of the tee box, Fisher launched his ill-fated duck hook.  Zeidman had not looked towards the tee box to see what his playing partners were doing but, instead, was focusing his attention on driving the cart.  Because Zeidman intended to return to the tee box to report to his partners that the group ahead of them was out of harm’s way and because he never signaled that it was safe to tee off, he never entertained the possibility that Fisher would hit his tee shot.  Fisher, in turn, acknowledged that he had clear view of Zeidman throughout his pre-shot preparation.  Because Fisher noticed that the group ahead of them was driving golf carts away from the 17th green, he proceeded to hit his tee shot before Zeidman’s return.

The Court Decision

The trial court granted summary judgment in favor of Fisher, reasoning that Zeidman had assumed the risk of the activity of golfing, which included being struck in the face by Fisher’s ball.  On review, the Superior Court analyzed the “no-duty rule” cases, which have generally held that when someone enters a business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk eliminates any legal liability.  By voluntarily proceeding to encounter a known or obvious danger, the person is deemed to have agreed to accept the risk and to undertake to look out for himself.  Because of this, the person assumes the risk of injury from obvious and avoidable dangers.

After reviewing the law, the Superior Court concluded that, under the circumstances relating to Fisher’s duck hook and Zeidman’s injuries, the no-duty rule did not apply.  As Zeidman was returning from his forward observation mission, he did not consciously assume the risk of friendly fire.  To the contrary, Zeidman had every right to anticipate that none of his playing partners would attempt a tee shot until his return to the tee box.  This was not a situation in which Zeidman was confronted with a common, frequent or expected danger inherent in the game of golf.  Rather, based upon the circumstances, Zeidman acted reasonably in assuming that his trip back to the tee box would be free from danger.

Ultimately, the Superior Court reversed summary judgment and directed that this matter proceed to trial.  Presumably, after the opinion, Fisher was on notice that, in the future, he should either practice more diligently to eliminate his hook or study up on golf etiquette. 

Judge Cleland aptly summed up the moral of the case as follows:

This case reminds us again of the utility of communication to prevent injury, even in the pastoral setting of a golf course and in the context of a game in which etiquette is as integral as skill.

Tim is a graduate of Widener University School of Law (J.D.) and the Temple University Beasley School of Law (Master’s Degree in Trial Advocacy).  Tim focuses his practice in Personal Injury law, including car, truck, motorcycle, bicycle and pedestrian accidents, slip and falls, dangerous products/products liability cases and medical malpractice.  Tim is a partner in the Chester County, PA, law firm of MacElree Harvey and has offices in Kennett Square and West Chester, PA, and Centreville, DE.  Tim is the author of numerous publications on Personal Injury law and writes a Blog providing news and information on Personal Injury law at www.macelree.com/traynelaw and is a columnist for The Kennett Paper writing a column titled “Legal Lines.”  Tim has also published two books on Personal Injury law:  “A Lawyer’s Guide to Purchasing Car Insurance” and “A Lawyer’s Guide to Personal Injury Cases.”  In 2007, Tim was named by Main Line Today as one of the area’s Top Personal Injury Litigators.  In addition, Tim is a member of the Million Dollar Advocates Forum which recognizes the “Top Trial Lawyers in America,” with membership limited to attorneys who have won million dollar awards and settlements on behalf of their clients.

Tim can be reached by phone at 610-840-0124, by email at trayne@macelree.com or on his Blog at www.macelree.com/traynelaw.

In its August 2009 issue, Main Line Today magazine published the results of the 2009 Top Lawyers survey in which Tim Rayne was named Top Personal Injury lawyer.  After hundreds of attorneys from Bala Cynwyd to Downingtown cast their votes, Tim was among a select 12 attorneys who were voted Top Lawyers in their practice areas.

Tim was proud to be recognized as Top Lawyer for Personal Injury and be recognized as one of 18 honorable mentions in the Medical Malpractice category.  The following is the excerpt about Tim from Main Line Today:

Top Lawyer – Personal Injury

When a motorcyclist was thrown from his bike after a collision with a pickup truck, Timothy Rayne wasn’t there to catch him. But when the victim needed representation, Rayne had his back.  Both parties were insured, but it wasn’t enough for his client, who fractured both legs and a wrist.  “Most attorneys would’ve been satisfied with securing the insurance payment, but my goal is to obtain full and fair compensation,” says Rayne.  “I felt a payment from the driver’s personal assets was warranted.” (Read the full story at www.mainlinetoday.com)

In total, 8 MacElree Harvey attorneys were honored in the Main Line Today Top Lawyers edition.

Tim Rayne (Personal Injury and Medical Malpractice), Bill Wilson (Labor Law), Leonard Rivera (Criminal Defense), Lou Teti (Trusts and Estates), Duke Schneider (Trusts and Estates), Joseph Bellinghieri (Trusts and Estates), Mary Ann Rossi (Real Estate), and Mary Ann Plankinton (Divorce)

Although this commentary may seem a little self-serving, since I focus my practice in Personal Injury law helping injured people deal with insurance companies to get fair compensation, I have strong feelings about so-called “Tort Reform.”  Specifically, I am convinced that “Tort Reform” is a product of lobbying power from insurance companies and large corporations and, when implemented, results in a transfer of wealth away from a class of underprivileged people (the catastrophically injured) and to wealthy individuals, corporate giants and insurance companies.  To me, this seems to be a curious policy for any government to consider if the true role of government is to protect the people.  In particular, I want to discuss three areas:  Frivolous Lawsuits, Loser Pays and Damage Caps.

Frivolous Lawsuits

A desire to rid the country of “Frivolous Lawsuits” (or Former President W’s nickname “Junk Lawsuits”) has become the mantra of many politicians.  I have news for you - 99.9% of all attorneys will not consider bringing a frivolous lawsuit for two reasons.  Number One:  it’s bad for business.  They won’t win the case and they won’t get paid for their work.  It will also give them a bad reputation with clients, colleagues and judges.  Number Two:  bringing a frivolous lawsuit is dangerous.  The state and federal courts have strict rules against filing suits that have no merit.  Doing so can result in fines or ethical violations which can potentially lead to punishment, including disbarment.

So, although occasionally you may hear news stories about “frivolous” cases, often you do not hear the full story (i.e. the McDonald’s coffee case was far from frivolous, and, if you don’t believe me, email me and I’ll send you an article about the facts of that case) and the other 99.9% of meritorious lawsuits never receive any media coverage.

Loser Pays

I often hear complaints that, in the American legal system, each litigant has to hire (and pay) its own attorney, and, even when they win a case, the other side does not have to pay for the legal fees.  The British system is quite different.  In their litigation, the loser has to pay both attorney bills.

In my view, in the area of Personal Injury cases at least, attorneys representing injured people would welcome a loser pays system, but insurance companies would not.  When cases have to go to trial (over 90% settle before a trial), it is often because there is a dispute over what is fair compensation for the injuries and damages.  If there was a loser pays system, the insurance companies would have to evaluate the value of cases more carefully, because failing to settle before trial would result in a much higher attorney fee bill at the end of the trial.

Damage Caps

Another so-called tort reform that is in vogue politically is Damage Caps.  Because there is no way to go back in time to prevent an accident from happening and eliminate the injuries and damages which have resulted, the American legal system provides that money compensation must be paid by the person who caused the injury to the injured person to attempt to make up for the injuries and losses.

When a person is injured in an accident in Pennsylvania, for example, there are two types of damages available to attempt to compensate the victim:  Economic Damages and Non-Economic Damages.  Economic Damages are for medical bills, lost wages and other specific expenses resulting from the injury.  Non-Economic Damages are monies owed to try to make up for the human losses like the pain and suffering, emotional distress, embarrassment and negative impact on the quality of life caused by the injury.

Damage Caps typically target Non-Economic Damages and place an artificial ceiling on what compensation a jury can award to an injured person.  At first blush, this might seem sensible to prevent runaway jury verdicts, increased insurance costs and increased prices to consumers.  However, consider this.  For a person catastrophically injured, paralyzed or horrifically burned, is it fair to take the decision of what would be fair compensation out of the hands of the jury that hears this specific case and put the decision with the legislature?

In my view, Damage Caps result in a transfer of wealth from the disadvantaged to rich people, large corporations and insurance companies.  The truth is that when catastrophic injuries occur due to the negligence of a person or corporation, the damages are paid (almost always) by the offending party’s insurance company - not from personal assets.  Insurance is (or should be) purchased to protect from risk and to pay the full value of losses.  Wealthy people or large companies should make a choice to buy enough insurance so that, if they cause an accident, the insurance will fully compensate the injured person.  If they do not, they are being irresponsible.

What Damage Caps do is allow wealthy people and large corporations to purchase less insurance.  This may sound good, but the downside is that the catastrophically injured pay the price.  Although disabled or disfigured for life, under a Damage Cap system, the legislature will decide what compensation they will get, not a jury or their peers.  Who reaps the benefit?  The wealthy person, large corporations and insurance companies.  Their risk is capped and they get away with paying less than the true damages which they were responsible for causing.

So, when it comes to “Tort Reform,” be careful what you wish (and vote) for.

I have had a few Personal Injury cases in my career that I expected to be straightforward and simple; that the negligence of the defendant and injuries to my client seemed so clear that, surely, there would be no fight and I would be able to obtain swift justice.  That was certainly the case for my client who was injured in an operating room fire.  Unfortunately for her, I was wrong, and the doctors and their insurance companies took the case to the eve of trial before finally agreeing to settle and pay fair compensation.  This is the case of two careless doctors and the operating room fire.

Fire In The Operating Room

The Case

The trouble all began when my client noticed a suspicious looking mole above her right eyebrow and, fearing cancer, her family doctor recommended that it be removed by a general surgeon.  The surgeon promised that it would be a simple, forty-five minute outpatient procedure and that my client would be home before lunch.  He was wrong and, in reality, she would spend eight days (including Christmas) in the hospital before returning home.

There were two doctors involved with the mole removal surgery; a surgeon and an anesthesiologist.  The anesthesiologist put my client to sleep and was monitoring her.  He also chose to administer oxygen during the surgery to my client by way of a face mask.  At the same time, the surgeon was to remove the mole and close the wound.

After the surgery started, the anesthesiologist who began the procedure took his lunch break and was relieved by one of his partners.  Shortly thereafter, the surgeon removed the mole and decided to use a Bovie Cautery device to control some bleeding points on the wound.  A Bovie Cautery is a surgical tool that uses an electrical charge to cauterize wounds and stop bleeding.  Unfortunately, as the surgeon used the Bovie, the client’s eyebrow started singeing and the Bovie sparked.  This source of fire mixed with the 100% oxygen leaking from my client’s face mask and ignited a fire which engulfed her face, chest and shoulder.  Although the substitute anesthesiologist quickly turned off the oxygen and the surgeon and nurses put out the fire, my client suffered widespread first and second degree burns, spent eight days in a burn center wrapped up like a mummy, and relied on morphine for pain control.  After her release from the burn center, she spent about six months in painful recovery from her wounds and suffered from some scarring and extreme sun sensitivity.

The Malpractice Case

To prove our case of medical malpractice, we retained expert doctors to study the fire.  These experts concluded that both doctors committed malpractice.  The surgeon should not have used the Bovie while oxygen was being delivered by mask and the anesthesiologist should have seen the Bovie and turned off the oxygen.  The negligent failure of the two doctors to work together and properly communicate with each other caused the fire and serious injuries.  If they had followed proper procedures, the fire would have been avoided.

The Result

Much to my surprise, the doctors and their insurance companies did not immediately offer my client fair compensation for her medical bills, pain and suffering, and disfigurement.  Instead, each doctor hired its own expert and said that either the fire was a freak accident or that it was the other doctor’s fault.  In effect, each doctor tried to push blame to the other.  This strategy continued until just a week before trial.  At that time, realizing that we had properly prepared for trial and that a jury might be outraged by the fire itself and the defense tactics of calling it a freak accident or blaming each other, the insurance companies finally paid full and fair compensation to my client.

The Lesson

This case taught me an important lesson to prepare every case like a trial is certain, because only if you are ready to win will the insurance company treat you and your client with respect.

Tim is a graduate of Widener University School of Law (J.D.) and the Temple University Beasley School of Law (Master’s Degree in Trial Advocacy). Tim focuses his practice in Personal Injury law, including car, truck, motorcycle, bicycle and pedestrian accidents, slip and falls, dangerous products/products liability cases and medical malpractice. Tim is a partner in the Chester County, PA, law firm of MacElree Harvey and has offices in Kennett Square and West Chester, PA, and Centreville, DE. Tim is the author of numerous publications on Personal Injury law and writes a Blog providing news and information on Personal Injury law at www.macelree.com/traynelaw and is a columnist for The Kennett Paper writing a column titled “Legal Lines.” Tim has also published two books on Personal Injury law: “A Lawyer’s Guide to Purchasing Car Insurance” and “A Lawyer’s Guide to Personal Injury Cases.” In 2007, Tim was named by Main Line Today as one of the area’s Top Personal Injury Litigators. In addition, Tim is a member of the Million Dollar Advocates Forum which recognizes the “Top Trial Lawyers in America,” with membership limited to attorneys who have won million dollar awards and settlements on behalf of their clients.

Tim can be reached by phone at 610-840-0124, by email at trayne@macelree.com or on his Blog at www.macelree.com/traynelaw.

 Kennett Square, PA - June 4, 2009:  Tim Rayne, a partner with the Chester County law firm of MacElree Harvey, was recently named a “2009″ Super Lawyer in the field of Personal Injury law by Super Lawyers Magazine.  The most recent Super Lawyers list appears in the June 2009 issues of both Super Lawyers Magazine and Philadelphia Magazine.

The objective of the Super Lawyer designation is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

The Super Lawyers selection process involves three basic steps:  (1) Creation of a candidate pool through Peer Nominations; (2) Super Lawyers’ staff research of candidates regarding such things as verdicts; settlements; experience, honors and awards; special licenses and certifications; position within law firms; lectures and writings; and others; and, (3) Peer Review of research by other attorneys in the field.

Only 5% of the lawyers in the jurisdiction can be recognized as Super Lawyers.

Tim is proud to be named a Super Lawyer in the highly competitive field of Personal Injury law, where he focuses his practice on helping people who have been injured in accidents receive fair compensation from insurance companies.  Tim’s experience includes a wide variety of cases including motor vehicle accidents (car, truck, motorcycle and pedestrian), medical malpractice, slip and falls, and accidents caused by dangerous and defective products.

Tim publishes articles and books and writes a monthly column in The Kennett Paper to educate his clients and the general public on matters related to Personal Injury cases.  Tim has a Master’s Degree in Trial Advocacy and tries Personal Injury cases in state and federal courts.

Tim can be reached at 610-840-0124 or trayne@macelree.com.  Check out Tim’s Blog at
www.macelree.com/traynelaw.

Timothy F. Rayne
online at

visit superlawyers.com

Recently, the Pennsylvania Superior Court decided a Personal Injury case, Wittrien v. Burkholder, which arose out of a shooting which occurred in Lancaster County.  The central issue was whether parents of an adult child who lived with them and who legally purchased a gun could be held liable when he shot someone.  Although the parents were held blameless by the Court, the case teaches an important lesson about potential liability for the tort of Negligent Entrustment, which is allowing someone to use property which you control when they are likely to harm someone with it.

The Wittrien v. Burkholder Case

Gary Burkholder was 20 years old and lived with his parents.  When he was 18, Burkholder bought a shotgun and, at all times other than a short period when he had threatened suicide and his parents had briefly confiscated the gun, Burkholder had control of the gun.  About 5 to 7 months after his parents gave him the gun back, Burkholder shot Steven Wittrien and a New Holland police officer.  Wittrien sued Burkholder’s parents, alleging that they had been negligent in allowing their son to have the gun even though they knew that he had violent propensities, had a drinking problem and was heavily involved in the white supremacy movement.  Ultimately, the Court dismissed the lawsuit, primarily because Burkholder’s parents did not own the gun and because Burkholder was an adult who had ownership and control of the gun at all times, except during the brief period 5 to 7 months prior to the shooting when he had threatened suicide.

The Law of Negligent Entrustment

Section 308:  Permitting Improper Persons to Use Things or Engage in Activities

It is negligence to permit a third party to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should have known that such person intends or is likely to use the thing or to conduct himself in a manner as to create an unreasonable risk of harm to others.

Examples of Negligent Entrustment

The following are a few examples of situations that could be considered Negligent Entrustment and result in legal liability:

• Allowing a child or any novice to use a gun or other weapon without proper training and supervision;
• Allowing a child or any novice to use a tractor, power tool or any dangerous equipment or device without proper training and supervision;
• Lending a vehicle to someone when it is known that the person is a very bad driver or is under the influence of drugs or alcohol.

So, the lesson is to be careful who you lend things to or what you let inexperienced people do with things under your control because, if you could have anticipated the danger, you may be held liable for any accidents which occur.

Tim is a graduate of Widener University School of Law (J.D.) and the Temple University Beasley School of Law (Master’s Degree in Trial Advocacy). Tim focuses his practice in Personal Injury law, including car, truck, motorcycle, bicycle and pedestrian accidents, slip and falls, dangerous products/products liability cases and medical malpractice. Tim is a partner in the Chester County, PA, law firm of MacElree Harvey and has offices in Kennett Square and West Chester, PA, and Centreville, DE. Tim is the author of numerous publications on Personal Injury law and writes a Blog providing news and information on Personal Injury law at www.macelree.com/traynelaw and is a columnist for The Kennett Paper writing a column titled “Legal Lines.” Tim has also published two books on Personal Injury law: “A Lawyer’s Guide to Purchasing Car Insurance” and “A Lawyer’s Guide to Personal Injury Cases.” In 2007, Tim was named by Main Line Today as one of the area’s Top Personal Injury Litigators. In addition, Tim is a member of the Million Dollar Advocates Forum which recognizes the “Top Trial Lawyers in America,” with membership limited to attorneys who have won million dollar awards and settlements on behalf of their clients.

Tim can be reached by phone at 610-840-0124, by email at trayne@macelree.com or on his Blog at www.macelree.com/traynelaw.