The Philadelphia Inquirer has this report on a judge ordering a new trial in a Pennsylvania Innocence Project case: "Calling the original trial evidence 'extremely weak' and newly uncovered evidence compelling, a Philadelphia judge has granted a new trial for two men serving life for the 1995 robbery-murder of a North Philadelphia business owner."
PENNSYLVANIA: The register of wills in Montgomery County, Pennsylvania, ordered to stop issuing marriage licenses to same-sex couples is seeking the Pennsylvania Supreme Court's review on whether the lower appellate court had jurisdiction and if the state health department opposing the licenses' issuance made out its burden of proof in the case, Reuters reports: http://whtc.com/news/articles/2013/oct/01/pennsylvania-clerk-appeals-ban...
NEW JERSEY: This state's attorney general has asked a state judge to put a stay in place until the New Jersey Supreme Court can rule on the constitutionality of the state's civil union law when it does not allow same-sex marriage, Bloomberg Businessweek reports. The AG argued, Bloomberg reports, "the judge should allow the Supreme Court, 'the ultimate arbiter of substantial constitutional issues, to definitively determine the contested issue and allow that court, if it deems necessary, to take the drastic step of rejecting on constitutional grounds' a state law.": http://mobile.businessweek.com/news/2013-10-01/new-jersey-asks-judge-to-...
WEST VIRGINIA: Lambda Legal has filed a constitutional challenge to WV's ban on same-sex marriage, arguing it violates the plaintiffs's rights under the Fourteenth Amendment, the Associated Press reports: http://m.tribtown.com/view/story/4c19a72e9dbc40cca08b54eb02037d72/WV--Ga...
MISSISSIPPI: A same-sex couple seeking a divorce after getting married in California are litigating to have their marital dissolution recognized under Mississippi family law,WMC-TV reports: http://m.wmctv.com/#!/newsDetail/23551743
That case may be the first of its kind in the state.
The Pennsylvania Superior Court has upheld a jury's decision to award punitive damages over the death of a nursing-home and hospital patient whose bed sores led to an infection that went septic in his body, the failure of one of his kidneys and his eventual death.
According to the opinion, the jury found nursing home Hillcrest Center and Jeanes Hospital each 50 percent liable for the April 18, 2008, death of Joe Blango. The jury awarded $1 million in compensatory damages against both defendants, $1.5 million in punitive damages against Jeanes Hospital and $3.5 million in punitive damages against Hillcrest Center. Philadelphia Court of Common Pleas Judge George W. Overton reduced Jeanes' punitive damages award to $500,000 and Hillcrest's punitive damages award to $1 million.
The court split on upholding the trial judge's decision to diminish the punitive damages. The majority instructed the trial judge to increase punitive damages by another $500,000 against the hospital. But one dissenting judge on the three-judge panel would have restored the jury's award entirely.
One of the plaintiff's experts testified the development of a bedsore at the top Blango's buttocks was the source of the infection that went septic throughout his body, Judge Kate Ford Elliott said in her unpublished opinion today.
The wound tested positive for both e-coli and MRSA bacteria, according to the opinion. Blango's kidney was infected as a result, and his kidney had to be removed, Ford Elliott said.
There was testimony Blango was not frequently repositioned and did not have his diapers changed habitually during 18 days of treatment by the two healthcare facilities, Ford Elliott said. There also was testimony that Blango was not eating his food, but was not fed by staff nor offered liquid food.
According to the majority opinion, Blango was first admitted to the hospital for a five-day stay after being found, after a stroke, in a state of not moving or speaking. Then he was transferred to the nursing facility for 10 days, and then he was transferred back to the hospital for another three days. After those 18 days, Blango was transferred to another Philadelphia-area hospital where his family first learned of the bedsore in the area at the top of his buttocks. The bedsore never healed.
There was sufficient evidence for the jury to find that the hospital acted with reckless indifference, Ford Elliott said on behalf of all of the panel, including not communicating the condition of Blango's skin when he was transferred the first time from the hospital to the nursing home.
In another example of reckless indifference, during Blango's readmission to the hospital “there was evidence that the hospital failed to turn and reposition Mr. Blango every two hours as required,” Ford Elliott said. A Jeanes Hospital nurse “testified that the hospital was chronically understaffed. Mrs. Blango testified that nursing staff at the hospital repeatedly ignored her requests to change her husband's diaper, and he was always left on his back. There was no attempt to help Mr. Blango use the bathroom or a bedpan instead of adult diapers.”
Hillcrest settled the case during appellate mediation, Ford Elliott said in a footnote. The court did not undertaken any analysis of Hillcrest's liability.
Plaintiff's trial counsel Churchill H. Huston, of the Maher Law Firm in Philadelphia, said in an interview that the case is a hybrid one because it involved a verdict against a hospital and a nursing home. “It speaks to [that] this kind of neglect--whether it's a nursing home or a hospital--the way you prevent a bedsore doesn't change,” Huston said.
The fact that an injury occurs in a medical setting does not mean that all liability stems from medical decision-making and thus requires expert testimony about the standard of care, Huston said.
Bed sores are an issue of simple neglect, Huston said, while the failure to order the right course of treatment would require expert testimony.
“If it's an issue of professional negligence, then you would need expert testimony to support your claim,” Huston said. “If it's an issue of simple negligence, then the testimony of a lay witness is sufficient to support that claim.”
Huston said his firm may seek to have the opinion published as citable case law.
A two-judge majority, including Ford Elliott and Senior Judge James F. Fitzgerald III, decided that the trial judge did not abuse his discretion in remitting the punitive damages, including because of the testimony of Jeanes Hospital's chief financial officer that the facility is not-for-profit and losing money.
While the trial judge said he reduced the ratio of damages to be 2:1 for Jeanes Hospital, the judge's remittitur actually resulted in a 1:1 ratio, Ford Elliott said, but “it seems clear that the trial court intended to reduce punitive damages to a 2:1 ratio, i.e., from $1.5 million to $1 million. Furthermore, as the trial court stated in its opinion, a 2:1 ratio is a reasonable relationship between punitive and compensatory damages in this case and satisfied due process,” Ford Elliott said.
The majority ordered a punitive damages award of $1 million, instead of $500,000, be entered on remand against Jeanes Hospital.
In dissent, Judge Sallie Updyke Mundy said that she disagreed with the trial court's reduction of the punitive damages award because she discerned “no abuse of discretion or constitutional infirmity in the initial $1.5 million punitive damage award,” she said.
A private lien from Blango's union health insurance was asserted and then resolved out of the settlement with the nursing home, Huston said.
The settlement amount with nursing home is confidential, Huston said.
Stephen Trzcinski, of Wilkes McHugh, was appellate counsel on the briefs, Huston said.
Appellate defense counsel for Jeanes Hospital included Post & Schell and Obermayer Rebmann Maxwell & Hippel, according to the Superior Court docket.
A spokeswoman for Jeanes Hospital did not respond to a request for comment.
The Associated Press reports two developments regarding same-sex marriage litigation in Pennsylvania and Ohio.
One, a lawsuit was filed in Pennsylvania state court to challenge the constitutionality of the ban on same-sex marriage under the state constitution. A federal lawsuit has already been filed. The litigants were issued marriage licenses in Montgomery County, Pa., after PA Attorney General Kathleen Kane rejected the legality of the ban and said her office would not defend it.
Two, a lawsuit in Ohio seeking for out-of-state marriages to be recognized on death certificates has been expanded to all similary situated couples. Despite a ban on same-sex marriages in Ohio, a judge has ruled in favor of two couples on the principle that Ohio recognizes all valid marriages from other states for ministerial acts like the issuance of death certificates. Read more: http://www.charlotteobserver.com/2013/09/25/4341472/apnewsbreak-gay-marr...
Two Pennsylvania institutions--Penn State University and the Catholic Church-- were shown to have severe institutional problems of failing to protect children from sex abuse due to two criminal prosecutions. The guilty verdicts were reached the same night against ex-football coach Jerry Sandusky for sexually abusing multiple victims and against Monsignor William Lynn, the first Catholic Church official in the country to be convicted of a crime related to the sexual abuse of youth who were directly abused by other clergy. Appellete arguments in both cases coincided the same day too. Here's a roundup of coverage of the legal arguments before separate panels in the Pennsylvania Superior Court in both cases:
Sandusky:
Allentown Morning Call- Sandusky lawyer cites delay in victims reporting abuse in reasoning for new trial: http://www.mcall.com/news/breaking/mc-penn-state-jerry-sandusky-appeal-0...
Harrisburg Patriot-News- Jerry Sandusky gets his day in appeals court: http://www.pennlive.com/midstate/index.ssf/2013/09/jerry_sandusky_gets_h...
Scranton Times-Tribune- http://thetimes-tribune.com/news/justices-to-decide-new-sandusky-trial-1...
Lynn:
The Legal Intelligencer- Superior Ct. Hears Arguments In Priest Sex-Abuse Case:
http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202619567790&Superior_Ct_...
Philadelphia Inquirer-Convicted monsignor's lawyer questions law's application: http://www.philly.com/philly/news/breaking/20130918_Convicted_priests_la...
Associated Press- Pennsylvania Appeals Court Hears Monsignor Lynn’s Endangerment Case: http://philadelphia.cbslocal.com/2013/09/17/pennsylvania-appeals-court-h...
Monsignor William J. Lynn was the first Catholic Church official in the country to be convicted of a crime related to the sexual abuse of youth who were directly abused by other clergy, not Lynn. Today, the Philadelphia Inquirer's Joseph A. Slobodzian reported on the Pennsylvania appellate arguments challenging Lynn's conviction on the grounds that the crime Lynn was convicted of--endangering the welfare of child crime--could not apply to him because the statute was written to criminalize the failures in the direct supervision of kids. Defense lawyer Tom Bergstrom also argued that Lynn's conviction can't stand under the amended version of the endangering statute because he was no longer supervising children at the time the law was changed.
Rather than expanding Medicaid to cover more Pennsylvanians when the mandate to have health insurance kicks into effect, Pennsylvania Tom Corbett proposed yesterday that funds for the expansion instead be used to help state residents get private health insurance. The pitch will need federal approval.
When the US Supreme Court upheld the constitutionality of the insurance mandate under Congress' taxing power, the court separately rejected making the expansion of Medicaid mandatory upon the states. Some Republican governors have accepted the expansion, while others like Corbett have not.
The Harrisburg Patriot News editorial board welcomed Corbett's efforts to expand insurance coverage for poorer Pennsylvanians but said requiring participants to look for work in exchange for coverage and imposing a modest co-pay might make the plan unworkable. Read the full piece here: http://www.pennlive.com/opinion/index.ssf/2013/09/corbett_rolls_the_dice...
In closing the board said: "The insurance gap remains one of the most pressing public policy questions of our time. The first and only priority should be closing that gap. Ideology, if it is a factor at all, should finish a distant second."
Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders. Now the Alabama Supreme Court has set out a 14-factor test that judges can use to decide if juveniles convicted of murder can be sentenced to life with or without the possiblity of parole. The Sentencing Law and Policy Blog noted that the Alabama Supreme Court found an opinon from the Pennsylvania Superior Court, Commonwealth v. Knox, helpful in setting out the 14 factors, which include the juvenile's mental-health hisotry, the juvenile's emotional maturity and development and "any other relevant factor related to the juvenile's youth."
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