This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.
Published: March 22, 2019
By: E. Richard Ogrodowski
As a runner, I spend a fair amount of time walking my dog or running for exercise around my town, which is located in Pennsylvania. This necessarily involves walking or running on or near roads. Sometimes the roads have a sidewalk and sometimes the roads do not. Most people might be surprised that Pennsylvania has a law, 75 Pa. C.S.A. Section 3544, that governs where pedestrians can walk or run when on or along a roadway. So, let’s go over the law:
What if a sidewalk is available along a roadway? Section 3544(a) requires that if “a sidewalk is provided and its use is practicable, it is unlawful for any pedestrian to walk along and upon an adjacent roadway.” Therefore, if you can use a sidewalk, you have to use it.
What if there isn’t a sidewalk? Section 3544(b) provides that if there isn’t a sidewalk, “any pedestrian walking along and upon a highway shall walk only on a shoulder as far as practicable from the edge of the roadway.” So, get as far from the roadway as possible.
What if there is neither a sidewalk nor a shoulder along the roadway? Section 3544(c) states that “[w]here neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway and, if on a two-way roadway, shall walk only on the left side of the roadway.” Therefore, by requiring a pedestrian to walk (or run) on the left side of the roadway, the pedestrian will be facing oncoming traffic. This is so the pedestrian can see oncoming cars or trucks, and, if there is danger, hopefully, be able to react to avoid serious injury or accidental death.
To sum it up, if there is a sidewalk use it. If not, get as far to the edge of the shoulder as possible. If there isn’t a shoulder, get as far to the edge of the roadway as possible. Plus, remember to walk or run on the left side of the roadway facing the oncoming traffic.
Published: March 13, 2019
By: E. Richard Ogrodowski
What are the deadliest jobs in the U.S.?
Data from the U.S. Department of Labor answers the question. Recently, the U.S. Department of Labor’s Bureau of Labor Statistics released the National Census of Fatal Occupational Injuries in 2017, which looks at fatal work injuries or work deaths recorded in the U.S. in 2017.
According to the data, overall, there were 5,147 worker deaths.
Types of Incidents
The main cause of worker deaths were: transportation incidents (2,077 deaths); falls, slips, and trips (887 deaths); violence and other injuries by persons or animals (807 deaths); contact with objects and equipment (695 deaths); exposure to harmful substances or environments (531 deaths); and fires and explosions (123 deaths).
The jobs with the highest fatal work injury rates or deaths in 2017 were (in descending order):
10. Electrical power-line installers and repairers (18.7 deaths per 100,000 workers)
9. First-line supervisors of landscaping, lawn service, and groundskeeping workers (21 deaths per 100,000 workers)
8. Farmers, ranchers, and other agricultural managers (24 deaths per 100,000 workers)
7. Driver/sales workers and truck drivers (26.8 deaths per 100,000 workers)
6. Structural iron and steel workers (33.4 deaths per 100,000 workers)
5. Refuse (garbage) and recyclable material collectors (35 deaths per 100,000 workers)
4. Roofers (45.2 deaths per 100,000 workers)
3. Aircraft pilots and flight engineers (48.6 deaths per 100,000 workers)
2. Logging workers (84.3 deaths per 100,000 workers)
1. Fishers and related fishing workers (99.8 deaths per 100,000 workers)
Published: December 9, 2016
By: E. Richard Ogrodowski
I previously reported in a post that on September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements with regard to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid. Not long after CMS announced the final rule, the American Health Care Association, which is an association for long-term care providers, and other plaintiffs filed a motion in the United States District Court for the Northern District of Mississippi seeking a preliminary injunction to enjoin CMS from enforcing the final rule. See American Health Care Association et al. v. Sylvia Mathews Burwell, in her official capacity as Secretary of Health and Human Services et al., Civil Action No. 3:16-cv-00233, U.S. District Court for the N.D. Miss.
On November 7, 2016, District Judge Michael P. Mills of the United States District Court for the Northern District of Mississippi granted the motion for preliminary injunction in favor of the plaintiffs. This was a win for long-tem care facility and nursing homes, as the final rule regarding arbitration provisions did not go into effect on November 28, 2016. Although Judge Mills stated that CMS’s final rule was based on sound public policy, he ultimately found that the plaintiffs had made a sufficient showing that CMS did not have the authority to enact the final rule. One of the factors Judge Mills had to consider in granting the preliminary injunction was whether there existed a substantial likelihood of success on the merits. Judge Mills found that to be the case.
Despite the ruling, the parties will continue to litigate the issue of whether CMS had the authority to enter the rule, although the federal government will have an uphill battle.
On December 5, 2016, a Case Management Order was entered setting a schedule for the filing of pleadings in the case. Oral argument is also scheduled for July 20, 2017 before Judge Mills.
Thus, you should expect to continue to see pre-dispute arbitration agreements in the admission documents for long-term care facilities / nursing homes.
Published: October 14, 2016
By: E. Richard Ogrodowski
Although the below case, which involves the tragic death of an 11-day-old child, pertains to a criminal statute, it is important to civil matters from the standpoint of how the judiciary looks at the plain language of a statute when interpreting the statute.
In West Virginia v. Louk, 237 S.E.2d 219 (W.Va. 2016), the defendant injected methamphetamine when she was thirty-seven weeks pregnant. Hours later, the defendant suffered acute respiratory distress caused by the methamphetamine. Due to concerns the fetus was being deprived of oxygen, a doctor performed an emergency C-section. A forensic pathologist, who performed the autopsy on the child, stated the child was born “essentially brain dead” from a lack of oxygen. Id. at 222. A Nicholas County, West Virginia Grand Jury indicted the defendant on one felony count of child neglect resulting in death pursuant to W.Va. Code Section 61-8D-4a. A jury later convicted defendant. She was sentenced to be incarcerated for three to fifteen years. The defendant appealed the conviction.
On appeal, the West Virginia Supreme Court of Appeals addressed this issue: “whether a pregnant woman who ingests a controlled substance which results in harm to her subsequently born child can be charged with child neglect resulting in death, as set forth in W.Va. Code Section 61-8D-4a.” Id. W.Va. Code Section 61-8D-4a provides: “If any parent, guardian or custodian shall neglect a child under his or her care, custody or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony ….” Id. at 222-23.
The defendant argued that an “unborn child” or “fetus” is not a “child” under W.Va. Code Section 61-8D-4a and thus the statute did not apply to her.
After reviewing the plain language of the statute and other statutes passed by the West Virginia Legislature that specifically mention and define “fetus” and mention “unborn child,” the West Virginia Supreme Court of Appeals held that W.Va. Code Section 61-8D-4a does not mention “fetus” or “unborn child.” As such, the court further held that the child neglect resulting in death statute does not encompass prenatal acts. Id. at 228. Because the statute does not apply to a fetus or unborn child or to prenatal acts, the court vacated the conviction and remanded the matter to the circuit court for the entry of a judgement of acquittal. Id.
This case is an example of the difficult issues that a court can face in civil and criminal matters. Yet, the court must follow the plain language of a statute as written and passed by the legislature.
Published: October 7, 2016
By: E. Richard Ogrodowski
Over the past year, I have reported on cases in which the Superior Court of Pennsylvania refused to require arbitration of wrongful death and survival actions, despite the existence of an arbitration agreement with a nursing home facility, arising from the alleged action or inaction of the nursing home causing the death of a resident. On September 28, 2016, the Supreme Court of Pennsylvania in Taylor v. Extendicare Health Facilities, Inc., 2016 WL 5630669 (Pa. Sep. 28, 2016), disagreed with those prior decisions and reversed the Superior Court of Pennsylvania in Taylor.
By way of background, in the reversed decision from the Superior Court of Pennsylvania, Taylor v. Extendicare Health Facilities, Inc., 113 A.2d 317 (Pa. Super. 2015), the Superior Court previously held that a survival claim arising from the death of Anna Marie Taylor at an Extendicare Facility could not be separated (or bifurcated) from the wrongful death claim of her beneficiaries. The court held this despite William Taylor, pursuant to a power of attorney authorizing him to act on Mrs. Taylor’s behalf, signing an arbitration agreement requiring the arbitration of all disputes arising out of Ms. Taylor’s stay at the Extendicare Facility as part of the admissions paperwork. In so holding, the Superior Court of Pennsylvania relied on Pennsylvania Rule of Civil Procedure 213(e), which requires the consolidation of survival and wrongful death actions for trial.
In reversing the Superior Court, the Supreme Court of Pennsylvania focused on the Federal Arbitration Act (“FAA”), which Congress passed in 1925. According to the Supreme Court of Pennsylvania, the FAA “provides that arbitration agreements ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.'” Taylor, 2016 WL 5630669 at *1. After reviewing opinions issued by the United States Supreme Court pertaining to the preemptive effect of the FAA on conflicting state laws, the Supreme Court of Pennsylvania concluded “that the FAA preempts the application of Rule 213(e), and requires arbitration of the survival claim against Extendicare.” Id.
The Supreme Court of Pennsylvania did express sympathy for nursing home residents subject to arbitration agreements and stated “the contract formation process that attends nursing facility admission can be a crisis-driven, stress-laden event involving the superior bargaining power of one party over the other. … Indeed, nursing home defendants have reaped significant benefits from channeling medical malpractice claims into arbitration to the detriment of medical malpractice victims.” Id. at *16. Nevertheless, the Supreme Court of Pennsylvania ultimately stated that it could not disregard or defy controlling precedent from the United States Supreme Court. Id.
What is the effect of Taylor in Pennsylvania? For now, it appears that survival actions subject to nursing home arbitration agreements will likely have to go through the arbitration process when Pennsylvania substantive law applies, unless the plaintiff can prove a common law defense such as mistake, lack of consideration, impracticability, unconscionability etc.
Fortunately, as I reported in my prior post, on September 28, 2016, which was the same day of the Taylor decision, the Centers for Medicare and Medicaid Services, which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements as to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid. The new rule goes into effect on November 28, 2016, but, unfortunately, is not retroactive, so the Pennsylvania Supreme Court’s reversal in Taylor will still affect arbitration agreements entered into prior to November 28, 2016.