Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

To solve the legitimate problem of the shortage of experienced truck drivers, the trucking industry is pushing to put teenaged truck drivers behind the wheel. This has many people concerned since the National Highway Traffic Safety Administration (NHTSA) has recently issued data that fatal collisions involving trucks are at the highest rate in 29 years. The question becomes, does adding teenage drivers into the trucking industry cause more issues on our public roadways? What does hiring these teenagers to drive these massive, unpredictable vehicles mean to others traveling on the same roadways? The American Trucking Associations (ATA) estimates that the trucking industry today is short about 50,000 drivers, significantly up from a shortage of 36,000 only two years ago. One way to solve this problem, according to trucking industry lobbying groups like the ATA, is to lower the interstate truck driving age requirement from 21 to 18. The push from the trucking industry for the right to hire younger drivers has already yielded proposed legislation. In March of 2018 a bill was proposed that would allow 18-year-old commercial vehicle drivers to cross state lines while hauling freight. Some in the trucking industry believe hiring teen drivers is dangerous. Research has consistently shown that drivers between the ages of 18 and 25 are more likely to cause a crash than any other age group. A 2018 study recently conducted concluded that teen drivers are four times more likely to cause a wreck than an adult driver between 20 and 30 years old. Even some trucking industry lobbying groups believe the industry is going too far by trying to put drivers fresh out of high school in the cabs of 80,000-pound commercial vehicles. Even though teenaged truckers aren’t allowed to haul interstate freight yet, the truck driver shortage has already led to growing ranks of inexperienced and undertrained drivers behind the wheels of big-rig trucks. Many trucking companies have loosened their hiring practices and cut corners on training, which trucking safety experts agree is one factor fueling the continuous year-over-year rise in deadly truck wrecks. If you or someone you love suffered injuries in a truck crash, especially if the trucking company hired an inexperienced or dangerous driver, the attorneys at Bordas & Bordas, PLLC are advocates for trucking accident victims. Please give us a call with any questions.

Christmas 2018 will be a holiday my family will never forget, not because of the great day, not the big gift or even the Christmas night around the tree with our extended family telling tales and laughing. It will be remembered for the tragic loss of Patricia Bates. Pat is my wife’s mom, my children’s grandma (Granny, if you will) and my second mom. After a terrible drive to Pittsburgh, following Pat’s arrival via Life Flight to UPMC, we found out she was not going to make it back to us. Pat was taken off a ventilator that was keeping her alive and passed, with her family at her side all listening to the Rosary being said by her sister. After all the tears and the long ride back to Bellaire, we received a call at 1:30 a.m. from a wonderful woman, whose name I wish I could remember. This strange call was at first not welcomed, but soon realized she was warm and compassionate. She expressed her regret that Pat had passed at such a beautiful time of year. She asked about Pat, what she was like, what her passions were and most importantly to Pat and us, her faith in God. Pat had not indicated to us or anyone her thoughts on being an organ donor. We found out that someone was in need of skin. Pat was a good donor for this person in need in the same hospital that Pat had passed in hours before. My wife began to weep and instantly knew how giving Pat was and her belief in God’s mercy, would make it impossible to say no. Did I wish we had had this discussion with Pat? YES. Do I know Pat would give her right hand to someone in need? YES. I’m also sure Pat, who was so quiet in public and afraid of embarrassing herself in public, probably wanted to check the box as an organ donor, but was too embarrassed to ask the DMV employee, where the box was, or can you repeat that? Please have this discussion with your loved one, no matter how difficult of time you have with this topic. As for the lady who called us that night, thank you. The thought that Pat’s final good deed was helping someone else through a terrible tragedy was something she would have done in a heartbeat. If someone passing can help your family, I think we would all be agreed organ donation is an import talk to have. February 14was National Donor Day, when we thank organ donors, donor families, and living donors for making the choice to save others, and we remember and honor those heroic gifts. For more information about organ donation contact C.O.R.E.: https://www.core.org/understanding-donation/

Each year millions of youths in schools and communities across the country hurt themselves or others through verbal, physical and digital means. The 2017 CDC’s Youth Risk Behavior Study found that 21% of high school student are bullied on school property each year in Pennsylvania. That same study found that 17.3% of high school students are electronically bullied each year in Pennsylvania. These incidents cause youths to experience emotional trauma and physical injury, mental health or wellness issues, stress or anxiety, and/or feelings of being unsafe and/or bullied. All too often, the outcome results in self-harm, suicide, or homicide. The facts show that in the majority of these acts, youths and /or adults were witnesses to threats, warning signs, or signals, especially on social media, but did not report or intervene to help the youth at risk. 80% of school shooters told someone of their violent plans. 50% told more than one person. 70% of people who complete suicide tell someone of their plans or give other warning signs. There are many reasons why youth and adults don’t say something when they see a warning sign or signal: they don’t understand or know how to recognize warning signs or signals; don’t believe the treat to be true because “they would never say it publicly if they really meant it”; don’t want to be labeled, stigmatized, or threatened as a “rat”, “snitch” or “tattle-tale”; didn’t know who to tell; or thought someone else would say something. On June 22, 2018, governor Wolf signed the Safe2Say Something Anonymous Reporting Law. This law establishes a system whereby people can make anonymous reports of behaviors that present concerns in public and non-public schools. The Safe2Say Something Anonymous Report System teaches youth and adults how to recognize warning signs and signals and report such conduct or concerns BEFORE it is too late. By allowing anonymous reporting the act provides a tool for students, staff, parents, and communities to report unsafe, potentially harmful, dangerous, violent or criminal activities in a school entity or a threat of such activities in a school entity without having to worry about any type of retaliation or being bullied and made fun of by being labelled a snitch, a rat or a tattle-tale. The hope is that this will allow more people to feel comfortable reporting things they hear and see that are of concern. Upon receipt of an anonymous report, analyst in the crisis center gather as much information to assess and evaluate the tip. Tips are categorized by immediacy and severity. The analyst forwards the report to a school entity’s crisis team, law enforcement dispatch, and other organizations where appropriate. Once the report is received, the school entity and local law enforcement are charged with assessing, intervening, and taking appropriate protective action with the at-risk individual before they get to the point of hurting themselves of others. Hopefully this new law will prevent individuals from hurting themselves or others, by getting help before they make a decision that effects the rest of their life and the lives of others. Vossekuil, B., et al., 2002. https://www2.ed.gov/admins/lead/safety/preventingattacksreport.pdf Robins, E., et al., 1959. https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.49.7.888

Recently, my email and social media have been bombarded with advertisements for subscription services. It’s amazing to me how these days, you really don’t have to leave your home for the most part. Cleaning products, health care products, books, clothing, food…whatever your heart desires are all at the mercy of the buttons on your keyboard. The days of going to the grocery store and digging through packages of steaks to find the “perfect marbleization” or sniffing a cantaloupe to find a nice juicy ripe one are on the way out. That mango-mint scented laundry detergent “sounds” wonderful in the merchant’s item description, but I’ll have to just take their word for it. Now, all of this convenience becomes inconvenient when you receive a shipment of bruised fruit or that mango scented laundry detergent isn’t as appealing as it sounded. The sweater in that subscription box that doesn’t fit right on you is going to take you some time to contact customer service, box it back up, slap on a shipping label and return the item for a refund or another item. Either way, you are going to wait. Now, I am guilty of falling for this technique and quite honestly I am glad I did. I have entered into a subscription service that delivers cleaning products to my home. It is exciting when I receive that monthly box full of chemical free goodies to clean my home. I have been pretty lucky so far and have been pleased with everything I received. As far as clothes and grocery shopping, well as long as I am able, I think I’ll just keep venturing out in the real world as opposed to the world wide web.

In the case of Kirkpatrick v. Geico Casualty Company the US District Court for the Western District of Pennsylvania, allowed the question of damages related to the plaintiff’s destruction of earning capacity claim to be submitted to the jury, despite the fact that the plaintiff could not show any loss in business income. The case involves a first party claim for underinsured motorists’ benefits filed by Ronnie Kirkpatrick and his spouse, Michelle Vensel. At the time of the motor vehicle accident, Mr. Kirkpatrick owned car restoration businesses; however, he had not completed restoration and/or sold any cars by the time of the automobile accident. On the contrary, in the years leading up to the incident, he had only reported losses to the Internal Revenue Service. At trial, Mr. Kirkpatrick testified about his injuries caused by the accident, and how those injuries impacted his ability to perform the manual labor necessary to complete the car restorations and/or sell the cars. Mr. Kirkpatrick’s spouse and business manager, Ms. Vensel, testified based upon the business’ records, it would be reasonable to conclude that the Mr. Kirkpatrick’s businesses’ net loss approximated $2.1 million. At the conclusion of the plaintiff’s case, Geico asked the court to strike Mr. Kirkpatrick’s past/future loss of earnings claims based on the fact that there was no evidence of lost revenue. The court disagreed, stating that the plaintiff submitted sufficient evidence to get the question of whether he sustained a destruction of earning capacity as a result of the automobile accident. Thereafter, Geico’s expert accountant testified that based upon reasonable certainty, Mr. Kirkpatrick did not lose any monies as a result of the car crash. On a side note, Geico attempted to introduce of Mr. Kirkpatrick’s smoking history stating that it was relevant because it would have an adverse impact on his future damages’ claim; however, the court disagreed stating that there was no expert testimony to show that Mr. Kirkpatrick’s work/life expectancy was affected by his past/current smoking history. Moreover, during a break in the trial and outside the presence of the jury, the trial court warned plaintiff’s counsel that during the testimony of Geico’s expert, Ms. Vensel was acting inappropriately, i.e. finger wagging, head nodding, big smiles, head shaking left to right, etc., which was a “no-no.” Upon the conclusion of the presentation of the evidence, the jury awarded Mr. Kirkpatrick $650,000 for past lost earning capacity, $1,820,000 for future lost earning capacity, and $500,000 for past, present, and future pain and suffering, embarrassment and humiliation, and loss of enjoyment of life; and, awarded Ms. Vensel $250,000 for loss of consortium. Following the trial, Geico sought a new trial arguing that the jury’s award for past/future damages was against the manifest weight of the evidence. Geico also argued that the trial court erred in disallowing Mr. Kirkpatrick’s smoking history. Finally, Geico argued that Ms. Vensel’s conduct during the trial was prejudicial to Geico and warranted a new trial. Regarding plaintiff’s loss of earnings claims, the court cited PA Supreme Court law, which holds that damages for loss of earning capacity arise out of an impairment of that capacity, and not out of a loss earnings. Here, the court determined the fact that plaintiff could not demonstrate a loss of income or profits up to the time of the accident was for the jury to consider but was not dispositive as to whether due to his car wreck related injuries, he sustained a loss of earning power. Moreover, the court held that the jury’s verdict for past/future wage loss was not “unduly” speculative as to warrant vacating the award. Regarding, the evidence of plaintiff’s smoking history, the court held that a smoking habit unaccompanied by any competent medical evidence that such habit reduces a particular individual’s life expectancy has little probative value. Therefore, it the court’s view evidence of plaintiff’s smoking history was both prejudicial and potentially confusing for the jury and outweighed the probative value of the evidence. Finally, with respect to Ms. Vensel’s conduct at trial, the court noted that Geico’s counsel did not raise the issue during the trial, and in fact it was the court’s staff that brought the matter to the court’s attention. More importantly, Geico did not poll the jury on whether they noticed Ms. Vensel’s conduct and/or what, if any, her conduct had on their deliberations. Moreover, Geico did not seek a special jury instruction as a result of her conduct. As such, there was not clear and convincing evidence of an adverse party’s engagement in misconduct to warrant a new trial.

Last month I gave warnings to injured persons as to why it was never too late to hire an attorney. So, what is good for the goose is good for the gander. This month I intend on warning attorneys about a potential danger in their job. I hope to warn attorneys on the perils of using social media. Several cautionary issues of the same involve the following: 1. Posting a Social Media Profile Posting a profile on social media when it is used to “promote the lawyer or law firm's practice” is advertising. See,' e.g., Guidelines for Networking Sites, FLA. BAR STANDING COMM. ON ADVER. (Apr. 16, 2013). Just posting a profile of only contact information and qualifications can implicate the Rules. See, e.g., Quick Facts About Legal Ethics and Social Networking, VIRGINIA STATE BAR,  (“Statements made on social networks about a lawyer's services may be subject to the advertising rules.”). There are two common issues for lawyers when creating a profile for social media sites: (1) information cannot be false or misleading (i.e., it cannot contain “a material misrepresentation of fact or law”), Id., and (2) the attorney must not claim he or she is an expert or has a specialty without appropriate justification and possibly disclaimers. See MODEL RULES OF PROF'L CONDUCT R. 7.4 (2013). For example, under MR 7.4, an attorney may not necessarily state on his profile that he “specializes in patent law,” even if patent law comprises the majority of his practice. That statement could imply that he is in fact certified to practice before the USPTO. If he is not a member of the Patent Bar, this statement would violate MR 7.4. 2. Blogging or Posting the Law Blogs and other posts about the law are considered to be mostly educational and not advertising, even if they end up generating business. See generally Phila. Bar Ass'n Prof'l Guidance Comm., Formal Op. 2010-6, 7 (2010). In general, as long as the primary purpose of posting information is not to encourage retaining the lawyer, this posting is permitted. N.Y. State Bar Ass'n Comm. Prof'l Ethics, Formal Op. 899. 3. Posting About Professional Successes When advertising professional successes, if the announcement requests future business or intimates that a lawyer could deliver an equally successful result for a new client, the ethics rules on advertising would apply. Under MR 7.2, a communication is considered an advertisement when it “involves an active quest for clients.” MODEL RULES OF PROF'L CONDUCT R. 7.2 cmt. 1 (2013). Once a communication becomes an advertisement, not only must it comply with MR 7.1 such that it is truthful, not misleading, and not likely to create unjustified expectations in the mind of a client, but it also must comply with the additional notice requirements of MR 7.2. MODEL RULES OF PROF'L CONDUCT R. 7.2 (2013). An important additional fact is that a lawyer's services don’t need to cost anything for a communication to be considered advertising. If a lawyer offers a free consultation or offers services for free, according to at least one state, upon signaling “availability for professional employment,” he is advertising. Cal. State Bar Comm. Prof'l Responsibility & Conduct, Formal Op. 2012-186. 4. Specifically Soliciting Business Advertising messages over social media sent beyond a lawyer's circle of “followers,” “friends,” and “connections” (and not to a current or former client or family member) are subject to the rules governing solicitations. MR 7.3 specifies the protocol for the situation when a lawyer sends messages out to recipients that have not specifically opted in to receive them. Under the Rules, communication that falls under the solicitation requirements must not only comply with all the requirements of verifiability and veracity but must also be specifically labeled “Advertising Material” and must not be delivered as a “real-time” contact. MODEL RULES OF PROF'L CONDUCT R. 7.3 (2013). 5. Breaching client confidentiality MR 1.6 states that “ lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent ....” MODEL RULES OF PROF'L CONDUCT R. 1.6(a) (2013). Even though the person is his client, the lawyer is required to preserve even public information about the case under MR 1.6. MODEL RULES OF PROF'L CONDUCT R. 1.6 cmt. 3 (2013) (“The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.”). This is especially difficult to comprehend when the same information might be tweeted, without any ethical violation whatsoever, by a reporter, a bystander, or even another lawyer from a different firm attending the trial, but whom is not part of the case. The lawyer must secure informed consent from his client before he may post. See id. To share information related to the case that would be of interest to a lawyer’s followers, friends, and contacts, he could get informed consent from his client to make known the specific information or he could comment on the underlying legal theories that his case challenges or represents. As long as he is careful about revealing actual facts, a lawyer may post a fair amount of information. Helen W. Gunnarsson, Friending Your Enemies, Tweeting Your Trials: Using Social Media Ethically, 99 ILL. B.J. 500, 502-03 (2011). 6. Checking up on Jurors Social media can pose a danger when a lawyer is trying to research jury members for his own benefit. Social media provides an opportunity for an attorney to learn more about potential jurors. Not only can an attorney get a broader picture of the person but also check the accuracy of the potential juror's responses. Most courts are not too concerned about using publicly-available information, although even in those instances a lawyer should be concerned that (1) the juror must not be able to know about the research, and (2) if counsel uncovers an inconsistency between what a juror stated in voir dire and what is on his social media site, counsel must report the inconsistency to the court. See N.Y. Cnty. Comm. on Prof'l Ethics, Formal Op. 743 (2011) (citing N.Y. RULES OF PROF'L CONDUCT R. 3.5(d)); Ass'n of the Bar of the City of N.Y. Comm. on Prof'l & Judicial Ethics, Formal Op. 2012-2 (2012); Oregon State Bar Ass'n, Formal Op. 2013-189 (2012). As a practical matter, it is easy for an attorney to hide his presence on Facebook and Twitter because an account holder does not see visitors to his public feed. Facebook doesn't let people track who views their profile. Third-party apps also can't provide this functionality. However, it tracks and reports the names and titles of any visitors to a profile. If an attorney intends to research a juror, he should make sure his own privacy settings on the site or app are set to hide his visits. Under Model Rule 3.5 a lawyer may not “(a) seek to influence a ... prospective juror ... by means prohibited by law” or “(b) communicate ex parte with such a person during the proceedings unless authorized to do so by law or court order.” MODEL RULES OF PROF'L CONDUCT R. 3.5 (2013). Hopefully, all of the above will advise an attorney who reads this blog of the potential ethical dangers of using social media. These are just a few of the possible things that could lead to an ethics violation. Thus, to all lawyers, be cautious next time you intend to use the internet as part of your job.

Voir dire is actually an old French phrase. Roughly translated, it means “to speak the truth.” It is used to describe the process of questioning potential jurors to see if they are harboring any bias, prejudice or interest that would disqualify them from serving. In most states, the judge decides how the voir dire questions will be asked. For example, the judge may have the attorneys submit questions in writing and then the judge will ask the questions. Other judges let the attorneys themselves ask the questions. Either way the jurors are under oath and must answer the questions fully and truthfully. The point of the voir dire process is to test the jurors to see if they can be fair and impartial. Campaigns by the insurance industry have convinced some people that lawsuits are largely frivolous, and that lawsuit abuse is responsible for rising insurance premiums. Obviously, it is important to identify jurors who cannot decide the case fairly because of preconceived ideas like these. It’s also important to learn if jurors have ties to the insurance industry (through their work experience, business dealings, etc.) that would prevent them from being fair to accident victims. Voir dire gives attorneys the opportunity to explore these potential sources of bias. If a potential juror’s answers suggest that they can’t be fair, the attorney can ask to have that juror stricken. Attorneys also have the right to strike a certain number of jurors without having to give any reason for striking them. Ideally, this process insures that the jurors who actually hear the case are fair, honest and impartial. It’s one of the ways that our Seventh Amendment right to a jury trial is fully protected.

The insurance industry and their corporate partners have spent a tremendous amount of money over the past two decades putting out propaganda to convince people that standing up for your own rights by seeking justice in a court of law makes you a bad person. If you file a lawsuit, you are bad. Many of my new clients who have been severely injured as a result of the misconduct of others, tell me when we meet for the first time, “Scott, I just want you to know, I am not the suing type.” I ask these clients why they feel guilty when all they are doing is standing up to a bully. Usually the bully is an insurance company that refuses to treat them fairly and settle their claims so they don’t have to go see a lawyer. When I ask clients why they feel that standing up to a bully and standing up for their own rights makes them a bad person, they cannot answer the question. That is the whole reason behind the billions of dollars spent by the insurance industry to brainwash the public. People feel like they are being a bad person if they file a lawsuit when really all they are doing is standing up for their own rights and not letting the big bully insurance company trample their rights. If you know someone who has had to file a lawsuit, you can be assured that the lawsuit was filed because the insurance company refused to do the right thing and settle the matter pre-suit. Don’t be fooled by propaganda. Hiring an attorney and filing suit against individuals and companies that have caused you harm, does not make you a bad person. It makes you a person that stands up to bullies and makes you a person not willing to see your rights trampled upon.

On Sunday, February 24, 2019, most of us in the Eastern United States experienced severe winds. This was predicted, and I was hoping that our power would hold out, but I wasn’t so lucky. It came as no surprise when it went out Sunday morning and we became one of the 4800 plus customers without power in Marshall County. The irony is that I had just spent $300 at the grocery store, and returned home from the store to no power. Hmm, what do I do with all of this food/meat I just bought? Fortunately, we have a small generator and we did what a lot of people do in this situation and began running extension cords from the generator throughout the house to the freezer and other necessities—like TV and our cell phone booster. TV and cell phone boosters are necessities? In this day and age and in my opinion—yes they are. We emptied out the refrigerator and put most of its contents in a cooler and sat it on the porch. That has been our “refrigerator” for the last four days. Everything that could go in our big freezer downstairs went into it. We have alternated between running the freezer and running the furnace, and we are surviving. Luckily, we have a gas hot water heater so we are able to shower—we just can’t dry our hair. I have been getting ready for work at work in the mornings. I wish I could say that we sat around in the evenings and played cards or board games and bonded as a family during this power outage but, as I said, we made sure we have TV and cell phone coverage so that part of our evening routine has remained unchanged. Last night I washed dishes and prepared supper by Coleman lantern, but without a doubt I like having modern conveniences and never thought I would say that I was actually looking forward to being able to do my laundry. I have a newfound respect for the pioneers of yesteryear and the Amish of today, but I’ve decided I really don’t want to have to live this way. Even though I am still without power, I want to thank all of the lineman who have been working around the clock to get the power restored—you guys rock! We are now at Day 4 of “living-off-the-grid” and I am crossing my fingers that today will be the day that life gets back to normal. If not, we will persevere because what else can you do?

Each year millions of youths in schools and communities across the country hurt themselves or others through verbal, physical and digital means. The 2017 CDC’s Youth Risk Behavior Study found that 21% of high school student are bullied on school property each year in Pennsylvania. That same study found that 17.3% of high school students are electronically bullied each year in Pennsylvania. These incidents cause youths to experience emotional trauma and physical injury, mental health or wellness issues, stress or anxiety, and/or feelings of being unsafe and/or bullied. All too often, the outcome results in self-harm, suicide, or homicide. The facts show that in the majority of these acts, youths and /or adults were witnesses to threats, warning signs, or signals, especially on social media, but did not report or intervene to help the youth at risk. 80% of school shooters told someone of their violent plans. 50% told more than one person. 70% of people who complete suicide tell someone of their plans or give other warning signs. There are many reasons why youth and adults don’t say something when they see a warning sign or signal: they don’t understand or know how to recognize warning signs or signals; don’t believe the treat to be true because “they would never say it publicly if they really meant it”; don’t want to be labeled, stigmatized, or threatened as a “rat”, “snitch” or “tattle-tale”; didn’t know who to tell; or thought someone else would say something. On June 22, 2018, governor Wolf signed the Safe2Say Something Anonymous Reporting Law. This law establishes a system whereby people can make anonymous reports of behaviors that present concerns in public and non-public schools. The Safe2Say Something Anonymous Report System teaches youth and adults how to recognize warning signs and signals and report such conduct or concerns BEFORE it is too late. By allowing anonymous reporting the act provides a tool for students, staff, parents, and communities to report unsafe, potentially harmful, dangerous, violent or criminal activities in a school entity or a threat of such activities in a school entity without having to worry about any type of retaliation or being bullied and made fun of by being labelled a snitch, a rat or a tattle-tale. The hope is that this will allow more people to feel comfortable reporting things they hear and see that are of concern. Upon receipt of an anonymous report, analyst in the crisis center gather as much information to assess and evaluate the tip. Tips are categorized by immediacy and severity. The analyst forwards the report to a school entity’s crisis team, law enforcement dispatch, and other organizations where appropriate. Once the report is received, the school entity and local law enforcement are charged with assessing, intervening, and taking appropriate protective action with the at-risk individual before they get to the point of hurting themselves of others. Hopefully this new law will prevent individuals from hurting themselves or others, by getting help before they make a decision that effects the rest of their life and the lives of others. Vossekuil, B., et al., 2002. https://www2.ed.gov/admins/lead/safety/preventingattacksreport.pdf Robins, E., et al., 1959. https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.49.7.888

Advances in modern equipment have increased the importance of what is now known as “End of Life Decision Making.” Our wishes about how we would like to be treated in the event we are in a coma, unable to make decisions for ourselves, or terminally ill, need to be made carefully and with great understanding of the potential consequences. If you have recently had a loved one in the hospital, particularly an older person, you may have heard the expression “DNR.” DNR stands for “do not resuscitate.” It’s important to have a good understanding what this means or serious mistakes can occur. The best summary I have seen of a DNR was stated this way: “If I die, don’t bring me back with the electric shocks and, artificial respiration and a ventilator. But, don’t kill me.” Just because a person decides that their wishes are to be DNR doesn’t mean they want to die! It certainly doesn’t mean healthcare providers should not take good care of them. Many people decide that cardiopulmonary resuscitation, accomplished through chest compressions or shocks to the heart to restart it, or artificial ventilation and mechanically assisted breathing, are experiences they simply don’t wish to have. They may agree to a “DNR” in order to make it clear that they don’t want their life to be saved from a heart attack or a respiratory arrest through those intense treatments. But there is a long distance from being DNR and wanting to die. A person may want to live a long time, despite being DNR, and people are entitled to good care and careful attention from doctors, nurses, and hospitals to make sure they are not harmed, even if they are “DNR.” When you get into end-of-life decision life decision making for people who no longer wish to go on living, an entirely different set of questions arise. Then we talk about hospice care, the withdrawal of life-sustaining measures, and even assisted suicide. Those issues and decisions will be the subject of further blog posts later on. But for present purposes, it’s enough to learn this all important fact, that just because a person is DNR doesn’t mean they don’t want to live, and it doesn’t mean they aren’t supposed to be taken care of just as well as anybody else. If you have questions about end-of-life decision making, it makes sense to consult your doctor, and your lawyer, to make sure all the terms and issues are understood by you while you have time to think of things. That way, if, for whatever reason, you are not able to make the decision for yourself later on, you’ll at least have made the decision with sound advice while you were able to do so.

Recently, the United States District Court for the Middle District of Pennsylvania, in the case of Phillips v. State Farm Mut. Auto. Ins. Co., dismissed a plaintiff’s insurance bad faith claim, holding it was reasonable for an insurance company to refuse to pay some of its insured’s claims upon its own medical expert’s opinion rather than the plaintiff’s treating physician. Phillips filed a claim with State Farm following an automobile accident. Her auto insurance policy provided her with $100,000 in first-party, no-fault medical benefits and required State Farm to pay for medical expenses arising out of the use of her car. When State Farm refused to pay some of Phillips’ claims, she filed complaint against State Farm alleging that State Farm violated 75 P.a.C.S. § 1716 by failing to pay first-party benefits (Count I), breached the insurance contract by failing to pay those first-party benefits (Count II), acted in bad faith (Count III), and breached the insurance contract by failing to pay underinsured motorist benefits (Count IV). At issue before the District Court was State Farm’s motion to dismiss Phillips’ complaint for failure to state a claim upon which relief can be granted. First, State Farm sought dismissal of Count III, arguing that Phillips failed to plead a bad faith claim. Second, State Farm sought dismissal of Phillips’ demand for attorney’s fees as part of her Count II breach of contract claim, alleging attorney’s fees are not recoverable in such a claim. In Pennsylvania, in order to prevail on a bad faith claim pursuant to 42 Pa.C.S.A. § 8371, a plaintiff must “present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.” In this case, the District Court agreed with State Farm, holding that Phillips did not allege sufficient facts to support a bad faith claim. Specifically, Phillips claimed that State Farm acted unreasonably and recklessly disregarded its lack of a reasonable basis to deny her claim for medical benefits by accepting the opinions of its defense medical examiner over her treating physician. The District Court determined that an insurance company may reasonably rely upon the findings of an “independent” medical examination even in the face of contrary medical opinions. It further held that while an insurance company may be found negligent for relying upon the opinions of its examiner over the opinions of an insured’s treating physician, those facts do not give rise to a bad faith claim. Thus, in Pennsylvania, it is insufficient to simply claim that an insurance company was unreasonable in accepting its retained examiner’s opinion to support its denial of an insured’s claim. To support a bad faith claim, a plaintiff needs to show that the insurance company knew that it had no reasonable basis to accept its examiner’s opinion. For instance, if there were facts to show that the insurance company knew that its examiner was incompetent and/or relied upon insufficient information when he/she offered his/her opinion, then a plaintiff may have sufficient facts to support such a claim. With respect to Phillips’ claim for attorney’s fees, 75 Pa.C.S. § 1716 provides that “Benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the amount of the benefits. If reasonable proof is not supplied as to all benefits, the portion supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Overdue benefits shall bear interest at the rate of 12% per annum from the date the benefits become due. In the event the insurer is found to have acted in an unreasonable manner in refusing to pay the benefits when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended. While the District Court determined that while Phillips correctly argued that she may recover attorney’s fees under Count I of her complaint because she alleges a violation of 75 Pa.C.S. § 1716 and that statute expressly provides for attorney fee awards, she could not show that that attorney’s fees are recoverable in a breach of contract claim. Therefore, the District Court dismissed her claim for attorney’s fees as part of breach of contract claim.