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Each day I get older, and each day I realize how often I (along with everyone else) get so caught up in our busy lives that we tend to forget just how important it is to appreciate and experience each and every moment in its simplicity. We all tend to live for the big things, the exciting things, instead of too, always appreciating the little things. Like giving our kids baths at night! Putting our kids to bed! Walking the dog on a beautiful day! Sharing a meal with your spouse! Talking to each other!  Most people, if not all, live for the weekends, the holidays, or vacation, instead of cherishing each day we get to spend with family, friend or experiencing new and exciting things. My son is going to be 10 years old.  The other day I sat at the pool watching the joy in his heart and actions.  How much fun he was having swimming with friends.  Before, I might have sat there worrying about what my next day was like.  What was on the work calendar. Bills. Every day I try, as we all should, to cherish the simple things, because soon, my son will not be running around a pool doing cannon balls, eating ice cream and laughing with his buddies. He will be off on his own, living his life and raising his own family. And while of course it’s great to have goals and things to work towards, I think it’s equally important to remember that each day, hour, or minute from now is never promised, and to thus, live accordingly by living in the now. By not taking life for granted. And by making each and every day the best as it can be. Yes, even those supposed bad days. Sure, we all have days we’d rather forget, and believe me, I have plenty. Always sit back and think… how bad is it really? You can choose to look at every situation in two ways: positively or negatively. Seems simple. And for the most part it is. You can either wallow and waste what you consider to be a bad day on the gamble that you’ll be given a new and better start tomorrow. Or you can accept that you are simply having a bad moment and move on. Trying to incorporate this simple mind set has helped me tremendously as a person. I also try to remember, as time goes on, so do we. We go on, living life, forgetting completely to live in the moment and to appreciate the little things and to not take things.. or life.. for granted. We go back to being overworked and becoming too busy for the moments that really matter in the grand scheme of things. We go back to planning our entire lives, down to the retirement we hope to have by age 65, and all of the things we’ll do once we reach this new age of supposed freedom and independence. Today, I am excited to hear how my son’s first competitive tennis match went.  I am excited to go home and have my 3-year-old tell me how much more she likes her mommy, smile, and give me a hug.  I am excited for my son to pepper me with questions about Fortnight, why I won’t buy him AirPods, an iPhone and/or V-bucks, but he will then share a story with me because he trusts I won’t tell his mother (which I usually do).  I am excited to walk my new dog and see her point at birds.  I am excited to cut up boxes that my wife has asked me to do for weeks (actually I am lying).  I want my 3-year-old to ask me “want to hear something crazy” and where she should go to the potty.  I am looking forward to traveling across the state to spend time with family and friends. All things I previously may have taken for granted. I think that we tend to view life as this never ending road in which we are guaranteed to wake up happy and healthy tomorrow, and for many years to come. And although, we all know that’s not necessarily the case, we live as though it is. Even though we are all very much aware, that one day, it simply will not be. So, tell him or her how you really feel, and live each moment to the fullest.

Rideshare services, such as Uber and Lyft, have become a widely-known and commonly-used amenity in this day and age. These services serve as a major convenience in a lot of circumstances, such as where parking may be difficult to find or expensive, where weather may be too inclement for walking to another location, or when you are in an unfamiliar city and may not have access to a vehicle or be sure where you are going. They have also helped to increase safety by providing an easy and affordable alternative for those who may have consumed alcoholic beverages and should not be behind the wheel. People can plan ahead to have a fun and safe night out in pretty much any city and state, and can easily access a secure ride in case of an emergency or other unexpected situation that requires transportation. However, there are a few tips to keep in mind to ensure your own personal safety and security while utilizing rideshare services. Check vehicle information before getting into the car Always check to make sure that the vehicle you are about to enter is the same make, model, and color as the one identified on your app before opening the door to get into it. Verify that the license plate matches the state and number on the app. This will help ensure that the driver of the vehicle is one that has been checked and approved to work for the rideshare service, and that you are not being scammed or putting yourself at risk. Though those situations are unlikely, it is always better to be safe than sorry and to take the few extra moments to double-check your vehicle’s information, even if you feel rushed to get into the vehicle and on your way. On a less risky note, doing this can also save you the embarrassment of trying to get into the wrong vehicle, or even worse, a vehicle that is not even a rideshare, which happens more than many people may think! Schedule your pick-up for a safe location Avoid requesting your driver to pick you up in a location that can pose safety risks to you, the driver, or other pedestrians or drivers. While it can be more convenient to try to have the driver pick you up at the exact location you are waiting, avoid scheduling your pick-up where it would require your driver to stop in traffic, make any kind of risky or illegal turn or stop, or impede pedestrians, such as in a crosswalk or over a sidewalk. You should also try to arrange for pick-up in a well-lit area, and wait inside if you can. Waiting outside with your phone in hand could indicate to scammers that you are waiting for a ride or could distract you from paying attention to your surroundings. The same goes for drop-offs. Never get out of the car on the side of traffic or if you see any oncoming vehicles. Wait until the car has come to a complete stop in the appropriate location to exit the vehicle. Pay attention to your route while on the ride Uber and Lyft provide GPS services and pre-planned routes to help them deliver riders to their destination, so it can be easy to zone out and be immersed in your phone or conversation with a companion while you are riding, but keep an eye on where you are headed while in the car to ensure that nothing is amiss. Most drivers will also welcome suggestions for alternate routes if you are aware of a construction or road closing that GPS may not identify or the driver may not know about, so don’t be afraid to make that suggestion if necessary. Use good judgment in determining if a rideshare is appropriate While rideshares are undoubtedly an excellent choice to avoid driving while intoxicated, if you or a companion are excessively intoxicated, making other arrangements to get home safely or waiting until you have gained your bearings a bit more is often the wise choice. In addition to concerns about your own personal safety, particularly if you are riding alone, taking a rideshare if you are significantly intoxicated can put the driver in an uncomfortable situation where they too may feel unsafe dealing with their passenger in the event the passenger becomes physically ill, falls asleep, or otherwise acts in an unruly manner during their ride. Report incidents to the rideshare company Rideshare companies generally take the safety of both their riders and drivers seriously, and have easy ways to report an issue, incident, or concern to the company through the app. If something happens that makes you or a riding companion feel unsafe, including that your driver has engaged in risky driving behaviors, makes inappropriate comments, or that the vehicle seems in disrepair or did not match the description you were given, you should report the situation to the company. This helps to keep safety a key component of ridesharing, and helps ensure that the benefits of the service far outweigh any risks.

Overall, the cases decided in the West Virginia Supreme Court’s spring term were a disappointment to plaintiffs.  In this overview, we will look at three broad categories of cases:  torts, arbitration, and oil and gas. Torts Foreseeability is one of the bedrock principles of tort law.  In Humphry v. Westchester Limited Partnership, the Supreme Court had an opportunity to apply foreseeability in a way that would have held businesses fully accountable for the risks they create when illegally serving alcohol to minors.  Instead, the Court’s cramped foreseeability analysis gave safe haven to a business that admittedly broke the law.  The Court lost its way by focusing on whether, or not, the minor who was served was the same one who was driving the car.  As Justice Workman stated in her dissent, that analysis misses the point.  What matters is the chain of causation:  the business should be accountable because it served a minor who became intoxicated and whose impaired decision-making directly led to the crash.  Worse yet, an innocent victim was left without any possibility of compensation. The Court also issued an opinion in Goodwin v. City of Shepherdstown making it harder to prove malicious prosecution.  Two aspects of this case are especially troubling.  First, the Court found that a dismissal “without prejudice” was not an outcome favorable to the accused.  Therefore, did not satisfy the first element of malicious prosecution.  Justice Workman, in dissent, warned that prosecuting attorneys will simply begin entering dismissals “without prejudice” as a way of avoiding any future malicious prosecution claims.  Second, the Court found that a grand jury finding of probable cause effectively negates any claim by the accused that probable cause was lacking.   In doing so, the Court did not even consider cases finding that an accused may challenge a grand jury’s probable cause finding where it was based on “intentional, knowing or reckless falsehood.” Oliver Wendel Holmes famously said that “hard cases make bad law.”  We see this in Amoruso v. Commerce and Industry Ins. Co., where the Supreme Court was addressing a motion seeking relief from a default judgment.  Even though the default judgment was clearly obtained and enforced through questionable means, the Court refused to vacate it--largely, it seems, because the defaulting party had a reputation for avoiding judgments.  Hopefully, the Amoruso opinion is simply an overreaction to a “bad” party and not a sign that our Court is changing the way it treats default judgments. Arbitration It’s hard to find even a glimmer of light in the Supreme Court’s arbitration opinions.  Attacking arbitration agreements has become increasingly difficult.  In a typical case, there are only two methods of attack:  formation (did the parties actually have a meeting of the minds?) and unconscionability.  In this term’s cases we see examples of each.  Unfortunately, the results are not encouraging. In Rent-A-Center v. Ellis, the Supreme Court dealt with a recurring theme in these kinds of cases.  The plaintiff, a high school graduate, was applying for a job and was presented with a slew of papers prepared by a multibillion dollar company and its legal team.  The plaintiff was rushed through the signing the process and had no idea that one of the papers she was signing was an arbitration agreement.  No matter.  Even in the face of an unconscionability challenge, the Court still found the agreement to be effective. The plaintiff fared no better in Collins v. Employee Resource Group.  Collins raised a formation issue:  did the plaintiff actually agree to arbitrate when she was filling out employment papers electronically through the employer’s website?  The parties disputed the process by which papers could be electronically signed.  The plaintiff testified that she did not sign the arbitration agreement and that the electronic signature was prestamped.  The circuit court agreed and entered judgment accordingly.  In the end, however, the Supreme Court reversed and ordered the case to arbitration. Oil And Gas There was a pleasant surprise in the realm of oil and gas law. In EQT Production v. Crowder, the Supreme Court addressed a gas company’s implied rights under a gas lease.  EQT held a 100 year old lease authorizing it to drill vertical wells.  Without the surface owner’s consent, EQT claimed that the lease also authorized it to drill horizontal wells crossing under adjoining properties so it could extract gas from those properties.  The Court, however, held that “a mineral owner or lessee does not have the right to use the surface to benefit mining or drilling operations on other lands, in the absence of an express agreement with the surface owner permitting those operations.” The Verdict As this sampling of cases suggests, there isn’t much to cheer about in the realm of torts and arbitration.  The Supreme Court has clearly charted a conservative, pro-business path that is slowing chipping away at the rights of the injured.  But the situation is not hopeless.  The Court’s willingness to stand up to the oil and gas interests in the Crowder case shows that it can act courageously.  We hope the Court can find this inner courage more often in the coming term.  The people of West Virginia deserve it!

Growing up, there was always someone in the family who made sure that while we were away on vacation, we would find a local church ( because there was no excuse to miss) and we would educate ourselves on the areas we visited.  During my recent trip to Austin, Texas, my son took me to our first stop, the state capitol.  Breathtaking.  And, the peaceful park outside where you have a chance to sit and think about what a great country we live in. As we approach the 4 th of July holiday, it reminds me of that day sitting there in that park. Take a moment to digest the meaning of the word FREEDOM.  Reflect upon the very word and the importance it is to you in your life.  Freedom means many things to different people.  I think one of the most important things it means is that we have a choice.  We have a say and we have the ability to make a difference. The things we do; the opinions we voice, so many take for granted on any given day.  We cannot minimize the rights we have been rewarded.  Regardless of your economic status or the state you reside, you have been given opportunity and the right to be who you want to be.  You have been given the right to express yourself in all aspects of life.  You are able to make choices and you are able to be heard. Lives were sacrificed so that we can have our freedom.  Let’s remind ourselves just how precious those unselfish acts were and because of the bravery our Americans had in them to fight for our rights. We live in a country that anything is possible.  What a privilege. What a blessing! As you celebrate Independence Day, truly embrace just what this day means to you and as you reflect upon just how lucky you are, don’t forget those who have fought to make this country great so we can live the way we do today.  Now, what are your plans for the holiday?  See, you have that as a choice.  HAPPY INDEPENDENCE DAY MY FELLOW AMERICANS!

Now that summer is well underway, it is a good time to revisit and think about some safety tips to survive the heat, summer activities, and ensure that everyone has a fun, healthy, and safe summer. Stay hydrated. While this is a year-round tip, summer heat, humidity, and hours spent outside in the sunshine make it even more important. Don’t wait until you are thirsty to consume plenty of water. Particularly if you know you will be outside for long periods of time, and when you might be exerting yourself through sports and physical activity, make sure you have had a good amount of water to drink before you head out for the day. Keep a bottle with you to sip from throughout the day, and ensure that children are regularly taking in water as well. Wear sunscreen. In general, we are now all fairly well aware of the many dangers that sun exposure poses to our skin and the importance of wearing sufficient sunscreen regularly. However, many people still think that the standard SPF 15 or 30 will be sufficient to protect them from harmful UV rays. While the CDC recommends use of an SPF 15 at minimum, many dermatologists recommend SPFs of much higher, particularly on one’s face. Additionally, even with application of sunscreen, other protective methods such as hats, sun-protective clothing and swimwear, and umbrellas should also be used, and sunscreen should be reapplied frequently, especially after swimming, sweating, or toweling oneself off. Take breaks from being in direct sunlight to cool off, reapply sunscreen, and give your skin a rest from the rays. Be smart on the water. Swimming and open-water sports, such as boating, waterskiing, tubing, kayaking, or canoeing are a great way to relax and enjoy nice weather outdoors, but these activities should be undertaken in a safe and conscientious manner. Make sure that everyone joining you is able to swim, or keeps their water enjoyment to a level that is safe and comfortable for them and their abilities. For lakes, rivers, or other open-water scenarios, lifejackets are a must, and should be worn whenever possible. Each state has its own laws and regulations about life jacket availability and use, especially for children, and you should always check those out before heading out on the water to be sure you will be in compliance. It is also important to stay alert and aware while near the water. Even though it can be fun to have a nice cold beer while out on the water or in between dips in the pool, alcohol consumption poses a real danger for accidents and drowning. Make sure to have a designated driver of any boat or watercraft, and stay on dry land if you feel any effects of alcohol, which can alter your judgment, reaction time, and muscle movement, all of which are important to remain safe on or near the water. Similarly, taking photos is a fun way to document your good times, but be conscious not to become so distracted with taking videos or selfies that you put yourself at risk of losing control. Enjoy fireworks safely and legally. Fireworks are a unique show that make summer special, but every year they contribute to injuries, deaths, or close calls. States have specific laws for purchase, possession, and use of consumer fireworks, and there may be various levels of regulations depending on the area where you may want to set off fireworks. Laws may also be seasonal or by date. You should take a look into any regulations that apply to your area before purchasing or attempting to set off fireworks on your own. A better option may be to check where fireworks will be set off in your area by professionals, as shows are usually free, pretty spectacular, and can be enjoyed from a safe distance!

It is summertime, and that means that school is out for a couple of months, including for many law students. Summer break is an important time for law students to have some time away from the classroom and switch their book learning out with some “real life” legal experience. What does that typically involve? Every legal internship will vary depending on a number of factors, including the type of legal environment in which the intern is employed, the legal intern’s current stage of law school and prior experience in the legal field, and the intern himself. But there are certain elements of most legal internships that are common, particularly when the internship takes place at a law firm. Legal interns are not allowed to practice law until they have graduated law school, passed the bar, and met any other requirements of their state of admission. This limits what they are able to do during the course of their internship – they cannot argue in court or attend depositions on their own, sign and file legal documents with the court, or deliver legal advice to a client, for example. But there are still many tasks that interns can complete and case events an intern can attend, and the insight and work of an intern can be a tremendous help to the lawyers they are working with! A large portion of many legal internships will involve research and writing. Much of law school is geared towards these tasks, but many law school courses do not necessarily help the law student see how their research and writing would be applied in the context of actual litigation or other typical practice work. Legal internships are a great way for law students to bridge the gap between what they have learned in a law school textbook and how they will apply that knowledge to help a client advance or defend their case. Legal interns can look up various cases, statutes, and other legal literature that is at issue in a particular case and draft memos that help the attorneys working on the case to understand what the law says on those issues and how to craft arguments that will help their clients. Legal interns can also help draft motions or briefs that will ultimately be filed with the court, as well as demand letters or mediation statements. Typically, the intern will work with the attorney to define the issues and the answers that are needed, and once the intern has drafted the documents, the attorney will review and discuss the work with the intern. While the attorney will ultimately approve and file the document, the intern’s work can be invaluable to ensure that the best research and arguments have been identified and digested, and can save busy attorneys a lot of time with their research and writing work. Legal interns can also usually attend court hearings, depositions, mediations, client meetings, and other case events with their supervising attorney. This is another great way for the intern to observe how the legal knowledge and principles they are learning in their law school studies come into play to advance a case or client’s position. The intern can often take notes, identify additional research that might be helpful or questions that need to be answered, and discuss their thoughts with the attorney on the case. This can also be a good opportunity for the intern to ask more specific questions about a particular case event, such as how objections work in a deposition or how an attorney prepares to deliver an oral argument before a court in motions practice. Watching attorneys interact with clients and other lawyers is also an important skill that many law students may lack until they have the opportunity during an internship. Interns will also often help review and organize case files and discovery material. Making timelines or summaries of medical records, pulling excerpts from deposition transcripts, identifying additional topics or questions to explore in discovery, and many other tasks that may not be typically thought of as legal work, but are essential to a successful, well-organized case. In addition to the various assignments and tasks that the intern is actually completing during their work day, legal internships can benefit law students in other ways as well. Many legal interns will get the chance to get to know attorneys in a particular practice area and ask them questions about their work that can help the intern decide what type of lawyer they may like to be after graduation and bar practice. They can ask lawyers questions about courses to take during law school, job application and interview advice, or tips for studying for the bar exam. Interns may also enjoy the opportunity to attend some networking and social events as well, such as bar association mixers or continued legal education events, which can help them branch out in a legal market and learn networking skills, which is an important aspect of the legal profession. Last, and not least, most jobs will try to ensure that interns can enjoy some fun during their time at work, whether it be some lunches out in the city of their employment, an office outing to a sporting event or other social event, or some other event to help the intern appreciate that, while the legal profession can be time-consuming and that attorneys tend to work hard, there is room for socializing and fun with colleagues as well.

In Krappa v. Lyons, the Pennsylvania Superior Court revisited Pennsylvania’s Peer Review Protection Act (“PPRA”) in determining whether a physician’s credentialing file is immune from discovery. Plaintiff’s complaint raised thirteen (13) counts against multiple Defendants, including wrongful death and survival claims. Count II asserted a negligence claim against Frank Piro, M.D. with respect to his interpretation of a CT scan in January 2008. Count VIII asserted a corporate liability claim against Defendant Community Medical Center (“CMC”) with respect to the hiring, training, and/or supervising physicians, including Dr. Piro. During the course of discovery, the Plaintiff sought unredacted copies of CMC’s files for Dr. Piro. CMC and Dr. Piro objected to the production and asserted the information requested was privileged pursuant to the PRPA. Plaintiff filed a motion to compel CMC to produce the unredacted and complete credentialing materials for Drs. Piro. In the motion, Plaintiff sought production of unredacted credentialing files, based on the recently decided Pennsylvania Supreme Court decision Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018). CMC asserted that Reginelli was inapplicable, arguing that its credentialing committee constituted a “review committee” whose records must remain confidential under the PRPA. Further, CMC insisted that the performance evaluations in its files satisfied the PRPA’s definition of “peer review” materials. The trial court conducted an in camera review of the unredacted credentialing file for Dr. Piro, and entered an order compelling the production of the unredacted files. CMC appealed the trial court’s decision to the Superior Court. CMC framed the issue as follows: Did the trial court err, as a matter of law, in construing Reginelli, as announcing a blanket rule depriving all previously-protected credentialing committee materials of peer review protection, when the issue of a credentialing committee’s review of physician performance was not before the Supreme Court; to the extent the Supreme Court addressed credentialing materials, it limited its discussion to that part of the credentialing process concerned only with factual review of professional qualifications, such as board certifications, and professional activities, such as service on professional organizations; and the Court reaffirmed that the peer review privilege protects the records of any review committee when one professional health care provider is evaluating the performance of another professional healthcare provider? The PRPA provides the following evidentiary privilege: § 425.4. Confidentiality of review organization’s records The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or used in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings. 63 P.S. § 425.4 The PRPA also defines the following pertinent terms: § 425.2. Definitions As used in this act: “Peer review” means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations. “Review organization” means any committee engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a health insurance review committee, a hospital plan corporation review committee, a professional health service plan review committee, a dental review committee, a physicians’ advisory committee, a veterinary review committee, a nursing advisory committee, any committee established pursuant to the medical assistance program, and any committee established by one or more State or local professional societies, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto. It shall also mean a committee of an association of professional health care providers reviewing the operation of hospitals, nursing homes, convalescent homes or other health care facilities. 63 P.S. § 425.2. In analyzing this case, the Superior Court revisited Reginelli wherein the Pennsylvania Supreme Court granted allowance of appeal to determine whether a medical service provider and hospital had any entitlement to the PRPA’s evidentiary privilege with respect to the performance file of an independently contracted emergency medicine physician. The Supreme Court engaged in statutory interpretation of the pertinent provisions of the PRPA and determined, “the PRPA’s evidentiary privilege is reserved only for the proceedings and documents of a review committee.” Reginelli, 181 A.3d at 304. The Court reasoned: The terms “review committee” and “review organization” are not interchangeable, as they connote distinct types of entities under the PRPA. The first sentence of the definition of “review organization” defines the type of entity that constitutes a “review committee,” namely, “any committee engaging in peer review.” The second sentence, in contrast, contains no reference to peer review, and instead refers to a “hospital board, committee or individual” involved in the review of “the professional qualifications or activities of its medical staff or applicants thereto” by a “hospital board, committee or individual.” This second category of “review organizations” does not involve peer review, as that term is defined in the PRPA, which is limited to the evaluation of the “quality and efficiency of services ordered or performed” by a professional health care provider. Review of a physician’s credentials for purposes of membership (or continued membership) on a hospital’s medical staff is markedly different from reviewing the “quality and efficiency of service ordered or performed” by a physician when treating patients. Accordingly, although “individuals reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto,” . . . are defined as a type of “review organization,” such individuals are not “review committees” entitled to claim the PRPA’s evidentiary privilege in its section 425.4. Professional “qualifications” would include, for instance, a physician’s continuing maintenance of his or her board certifications, and “activities” could include clinical research initiatives, continuing education, service on professional committees or organizations and, more broadly speaking, other qualifications deemed necessary by the hospital. Credentials review permits a hospital to retain, and then maintain, a medical staff of quality professionals. Therefore, the Reginelli Court indicated that the PRPA does not extend its grant of an evidentiary privilege to materials that are generated and maintained by entities reviewing the professional qualifications or activities of medical staff “i.e., credentials review.” Additionally, “the performance file was not generated or maintained by MVH’s peer review committee,” and the PRPA’s evidentiary privilege did not apply. In this case, the Superior Court confirmed the trial court’s determination that the files at issue “consist entirely of credentialing materials of Dr. Piro.” Regarding the applicability of the PRPA, the Superior Court determined that materials in the doctors’ personnel files are generated and maintained by CMC’s credentialing committee. The Court held that the PRPA’s protections do not extend to the credentialing committee’s materials, because this entity does not qualify as a “review committee.” Accordingly, the Superior Court affirmed the trial court’s decision to order the production of Dr. Piro’s credentialing file, and remanded the case back to the trial court for further proceedings.

Am I the only person who is not a fan of s’mores? I like chocolate, graham crackers and marshmallows by themselves, but I don’t want them mooshed together, especially melted. They are sickeningly sweet and make my teeth grit. You know the feeling, like fingernails down a blackboard. I think it’s the melted marshmallow. It turns sweeter when it’s heated. If you mix that up with melted chocolate, it’s just so sweet and cloying. I actually feel sick eating them, which is why I abstain. I’ve had s’mores twice. Once as a child and once as an adult. The reason behind that is sometimes you don’t like something as a kid but will like it as an adult, but I am still not a fan. I also don’t like pancakes with syrup. Pancakes should be treated like glorified toast--butter only. I love them with eggs. They are really good dipped in the yellow. I have to say that syrup ruins a good pancake. It makes them fall apart and get mushy. I don’t want to resort to eating them with a spoon. Syrup ruins the entire pancake eating experience. One of my bigger food aversions is coconut and sauerkraut. They are both equally disgusting. If I was stranded on a deserted island with only coconut trees, I’m pretty sure I would die, unless fresh coconut tastes better than the kind you buy in a bag. I can eat a small amount of sauerkraut if it’s cooked all day in pork. Other than that, no. Just no. My biggest food aversion is nuts. It is my opinion that nuts do not belong in food. Rice with slivered almonds is not a good combination. Dressing with chestnuts—no thank you. All candy bars in existence should not have nuts in them, or at least provide a nut-free version. How wonderful the world of candy bars would be if there were no nuts in any of them. Nuts belong salted in a can and that’s it, except walnuts. Walnuts should be drummed out of town because they taste so bad. Nothing tastes better with a walnut in it. Cracking walnuts is fun. Eating them is not. Other than these five things, I’m pretty easy to please. I’ll try anything at least once. If it’s fried, baked or grilled, I’m there. Strange-looking desserts? Bring it. But, by all that is holy, hold the nuts!

Most people are aware that a dog owner can be sued if their dog bites someone. According to the Centers for Disease Control, 885,000 people are bitten by dogs each year, and one out of every five of those require medical attention.  But, what if a dog doesn’t bite you, but instead knocks you down or scratches you causing injury?  Under Pennsylvania law, the owner of a dog may still be liable for the actions of their dog, even if the dog didn’t bite someone. Pennsylvania law does not impose strict liability on dog owners if their dog bites someone.  The Dog Law holds dog owners liable for damages if they failed to keep their dog in the house or yard, on a leash, or “under the reasonable control of some person.”  3 P.S. § 459-305.  An unexcused violation of Pennsylvania’s Dog Law is negligence per se.  However, liability will only attach, for a per se violation of Pennsylvania’s Dog Law, if the violation is a substantial factor in bringing about the injuries sustained. In Miller v. Hurst, 448 A.2d 614 (Pa. Super. 1982), the Pennsylvania Superior Court held that if a dog owner is found to have violated Pennsylvania's dog confinement law, the owner is liable for any injuries that result, even if the owner had no way to know that the dog would act aggressively or had ever acted aggressively before. Pennsylvania law treats dog attacks differently if the dog involved is deemed a “dangerous dog”.  According to Pennsylvania's Dangerous Dog Law, 3 P.S. § 459-502-A, a dog is a "dangerous dog" if: the dog has injured a person, without provocation, on public or private property, the dog has killed or injured a domestic animal without provocation, while off the owner's property, the dog has attacked a human being without provocation, or the dog was used to commit a crime. In addition to any of the above elements, the dog must also have a history of attacking either humans or domestic animals, or a "propensity" for attacking either humans or domestic animals without provocation.   It is important to know that a propensity to attack may be proven by a single incident, even if it is only the first attack. A Pennsylvania dog owner typically has two defenses to a dog bite claim: provocation and trespassing.  Pennsylvania's dog bite laws specify that in order for the owner to be held liable for injuries, the dog must have caused injury " without provocation." If the dog owner can show that the injured person provoked the dog, the owner may not be held liable. In addition, an owner may not be liable if the injured person was trespassing on the owner's property at the time of the bite. Section 459-507-A of the Dog Law specifies that Pennsylvania's dog bite laws do not apply if the injured person was committing a "willful trespass" at the time of the injury. The provisions of the Dog Law related to “dangerous dogs” applies to both the owner and a keeper of the dog. 3 P.S. § 459-507-A(3).  This has been used to impose liability upon landlords for injuries caused by their tenant’s pet if it can be shown that the landlord knew of the presence of the dog and the dog’s violent propensity. Underwood v. Wind, 954 A.2d 1199 (Pa. Super. 2008). Because dog bite law and liability can be confusing, it is important to document what occurred and the aftermath.  It is also important to determine not only who owned the dog, but also who owns the property where the dog lived and if the dog owner is a renter, commercial tenant or guest of the property owner.  After suffering a dog attack injury, you should immediately seek medical attention and contact the police or Dog Warden in your area to make a report of the incident.

In my last posts, I talked about how the law forces a medical-malpractice plaintiff to hire an expert who must then use a series of magic words to identify the key facts supporting her opinion.  Having done so, what happens next?  In any complex case, there will be thousands and thousands of individual facts.  Hundreds of lab results.  Hours of testimony.  Dozens and dozens of pages of nurses’ notes.  All of them potentially important to the jury that will have to decide the case. Generally speaking, the rules of evidence allow the admissibility of any evidence that is relevant.  The rules state that “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”  Given that juries decide the facts of the case, this is obviously meant to be a rule for them.  Relevant to who?  Relevant to the jury, of course. What happens in a malpractice case, though?  The defense attorneys know that the law requires the plaintiff’s expert to say exactly what the deviations from the standard of care were and to describe exactly how those deviations from the standard of care caused harm.  In advance of trial, the defense attorneys will ordinarily file a motion to exclude any fact they don’t like if that fact was not exactly and precisely relied upon by the plaintiff’s expert.  We’ve translated the rule from “Relevant to the Jury” to “Relevant to the Experts.”  Any fact not relevant to the experts, who speak, act, and think like the doctors they are, is in danger of being shielded from the jury who might have a different notion of what’s important or relevant. In most other cases, we trust the jury with all the relevant evidence.  If an expert will assist the jury in explaining or understanding those facts, so be it, but the jury gets the facts and they make up their own minds about what is important and what is not.  In medical malpractice cases, however, we run a real danger of turning this entire fact-finding operation over to the experts in a way that was never intended under our system of justice. In a malpractice case against doctors other doctors try to decide what facts the jury gets to hear. That was never the intent of the rules. We are lucky in this area to have some of the best trial judges in the country.  We are also lucky to have hard-working and fair citizens who would decide cases the right way if we let them.  When it comes to malpractice cases, though, I wonder if we have taken the trust that we’ve justifiably placed in our judges and juries and turned it over to the experts.

In my prior posts, I argued that in medical negligence cases, the jury only gets to hear facts that have been pre-filtered by medical experts.  In this post, I’ll explain the mechanics of how that happens.  In a civil case, the plaintiff bears the burden of proof.  In a civil case, as opposed to a criminal case, the burden of proof is what’s known as the “preponderance of the evidence.”  It just means more likely true than not.  51% certain.  Another way to say that is “probably.”  In a civil case, the plaintiff wins if she can prove what probably happened.  In the same was medical malpractice law translates “carelessness” into “deviation from the standard of care,” the same law translates “probably” into a magic-sounding phrase known as a “reasonable degree of medical probability,” which supposedly means the same thing.  The complexities are now piling up on one another.  Properly understood, the jury should decide whether a doctor was probably careless.  Now, however, the jury is tasked with deciding “whether, to a reasonably degree of medical probability, the defendant physician deviated from the accepted standard of care.”  Those things are supposed to mean the same thing, but we can see how the phrasing makes things seem more complicated and, thus, harder to prove.  What’s worse, the law says that only an expert gets to decide things like “reasonable degree of medical probability” and “deviation” and “standard of care.”  The case will never even get to a jury unless the plaintiff’s expert speaks these magic words. That brings us to the deposition of the plaintiff’s expert witness.  As part of all medical negligence cases, the plaintiff has to disclose experts that will testify on his behalf.  The defense attorneys get to put that expert under oath and ask her detailed and, in many instances, confrontational questions about her opinions.  This expert is, in almost every case, an extraordinarily busy medical professional focused on her own patients.  What’s worse, she doesn’t speak the language required by the law.  Doctors do not walk around the halls of the hospital talking to each other about “reasonable degree of medical probability” and “deviation from the standard of care.”  However, they must now use that language in the deposition, at the risk of costing the plaintiff his entire case. Seasoned defense attorneys know this drill well:  The plaintiff’s attorney must be able to state, to a reasonable degree of medical probability, how the defendant deviated from the standard of care with absolute precision.   What exact test should have been ordered?  What precise lab value should have been recognized?  What exact medication, timing and dose, should have been administered?  But even that’s not enough.  Not only must the plaintiff’s expert be able to say exactly what the defendant did wrong, using all the magic language, the expert must be able to testify, again with the magic language, that these deviations caused the harm. If the defense attorney is lucky, the plaintiff’s expert will slip up.  She might use the dreaded word “maybe” or “possibly.”  One utterance of these words in any context could spell the end of the case.  Even if the defense attorney is unlucky, he should at least leave the deposition with the plaintiff’s expert committed to an exact narrative timeline where each step is contingent on the many steps before.  That is, the plaintiff’s expert will have been forced to comb through the chart identifying every single “deviation from the standard of care” and the exact facts that support that deviation.  She will have also been compelled to say exactly how, when, and why some different course of action would have led to a better outcome, to a reasonable degree of medical probability.  At the end of the deposition, there will be two kinds of facts: (1) Those that are absolutely central to the opinion of the plaintiff’s expert, assuming all the magic language was used and (2) Facts that are not absolutely central to the opinion of the plaintiff’s expert.  These facts in category 2 may be very important.  They may provide a great deal of context to what happened.  They may be just the kind of facts that the jury would want to know and that, in other cases, we would trust them with.  In my next post, I’ll talk about the next steps.

In my prior posts, I discussed the proper use of expert witnesses in civil cases. Experts are meant to be used only to help the jury understand complex issues.  They were never meant to be used as a substitute for the collective wisdom of the citizens who sit on our juries. Do experts still play that helper role in medical negligence cases? Again, because the law is similar in most states, I will use West Virginia as an example.  According to West Virginia law, a doctor is responsible for any injuries caused by his or her negligence. The negligence standard is the same one we use to determine most civil cases involving an injury. It simply means a lack of due care.  Negligent drivers can be held responsible for the injuries they cause and the same should be true of physicians. However, things quickly get more complicated. In a medical negligence case, it’s not enough to simply say “carelessness,” which is a word that everybody understands and can use.  We all know what it means to be careful and we all know what it means to be careless. We could trust a jury made up of people from all walks of life with that decision. However, in medical negligence cases, “carelessness” gets translated and defined to mean a “deviation from the standard of care,” which is technical jargon supposed to mean the same thing. As the law attempts to explain to us, juries that ordinarily and effectively make determinations about “carelessness” simply cannot be trusted to determine what the “standard of care” means. So the law vests that determination exclusively to expert witnesses. That is, the case can only proceed if an expert says what the standard of care is and describes exactly how the defendant deviated from that standard.  I have no problem accepting the obvious fact that in many scenarios, ordinary citizens would have difficulty understanding what is supposed to happen in a complex surgical procedure, just as those same jurors might have a hard time understanding complex mechanical engineering issues or the types of fire science issues that come up in explosion cases. For that reason, I have no problem if experts come in to help the jury understand those issues, as the rules are designed. In malpractice cases, however, the law requires experts to do far more than simply help. The medical expert can’t simply help. He or she must establish with an exactitude that is often very challenging exactly what was supposed to happen and why it didn’t. This is no longer just help. It’s the replacement of the jury with experts. To be sure, the jury still exists, but it no longer filters through the facts itself with the possible assistance of experts.  Instead, one expert tells the jury her version of pre-filtered facts and another expert tells the jury his version of pre-filtered facts. The jury is left to determine which version of pre-filtered facts seems more correct, but the filtering has already been done.