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The Benchmark Fourth Quarter 2011

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The Benchmark Fourth Quarter 2011 Powered By Docstoc
					  Fourth Quarter, 2011




        MccuMber, Daniels, buntz, Hartig & Puig, P.a.
              trial & aPPellate attorneys




“there are some things you learn best in calm, and some in storm.”
~Willa cather
                                                                                     in tHis issue


The Benchmark is a quarterly newsletter which will                   Fair Warning to All of Us P. 2

provide succinct discussions about important topics
or developments in defense and commercial litigation.                Don’t Take Away my Error in Judgment P. 3

if there is a specific article or topic that piques
your interest, please feel free to contact andrew                    Quality of Care and Satisfaction On Long Term Care are on
McCumber, at amccumber@mccumberdaniels.com                           the Rise, But So Are Liability Claim Costs P. 4
or any other member of the team through our website,
www.mccumberdaniels.com . The Benchmark is                           Bad-Faith is Back in Florida’s Legislative Crosshairs P. 5
provided to foster collaborative discussion and
your feedback or suggestions for topics is welcomed.                 Nurses Corner P. 6




                                    Florida         Pennsylvania new Jersey
                                               Fair warning to all of us
                                                              By Fred J. hughes



            We have all seen drug                  defendants by the trial court in each case as      and they are often going to think that their
commercials where the list of potential side-      part of a combined ruling and the appellate        condition may be the result of a medication that
effects seems to go on endlessly, and we have      division, the intermediate court in new            was prescribed to them. Cases like DeBoard
all joked with our friends about them. it turns    Jersey, upheld the ruling. The ruling means        largely close the door to a successful suit
out that those warnings, which also appear         that the product warnings precluded the            against the manufacturer of the medication, so
on the labels of those drugs, are no laughing      claims, even if the women could prove              who does that leave as the next target? The
matter. They serve an important legal purpose      that their breast cancer was caused by             prescriber and perhaps the facility where the
in addition to allowing patients who actually      the hormone replacement therapy drugs,             medication was prescribed, of course.
read the labels to make informed decisions         because the warnings on the label were
                                                   presumed legally adequate since the Fda            Thus, physicians must ensure vigilance at
regarding their medical treatment.          The
                                                   had approved them and the plaintiffs lacked        every turn in conveying the potential risks
significance of the legal purpose was recently
                                                   evidence to overcome that presumption.             of proposed therapy and in documenting that
highlighted in a major victory in new Jersey
                                                                                                      conversation in a manner that conveys how
for “Big Pharma” in product liability litigation
                                                   This victory for the pharmaceutical companies      thorough they have been in counseling their
related to hormone replacement therapy.
                                                   comes at a time when the potential link            patients. despite the economic crunch felt
                                                   between hormone therapy and breast cancer is       by physicians as a result of managed care
in DeBoard v. Wyeth, Inc., et al, a new
                                                   front page news, with the recent announcement      providers and Medicare, there is simply
Jersey appellate Court recently upheld
                                                   made by e! television personality Giuliana         no substitute for taking the time necessary
summary judgment for wyeth, Pharmacia,                                                                to adequately counsel the patient and
                                                   rancic that she was diagnosed with early
and upjohn against two women who were                                                                 meaningfully document that counseling.
                                                   stage breast cancer after undergoing multiple
diagnosed with breast cancer after taking
                                                   unsuccessful attempts at in-vitro fertilization.
hormone replacement therapy drugs,                                                                    healthcare facilities or organizations also
                                                   it is a good time to take stock as to what
affirming that an Fda approved warning                                                                must ensure that physicians are counseling
                                                   obligations we have as consumers, healthcare
label is presumed adequate in new Jersey.                                                             patients when they are practicing under the
                                                   providers and operators of healthcare facilities
---a.3d --- 2011 wl 4482558 (n.J. super.                                                              facility’s or organization’s umbrella. This is
                                                   when it comes to potential side-effects of
Ct. app. div. 2011). The decision will                                                                one area where it may pay to be painstakingly
                                                   prescription drugs.
have a direct impact on numerous similar                                                              clear and specific when formulating medical
cases that are part of the mass tort hormone                                                          staff bylaws and/or employment agreements.
                                                   as consumers, this ruling reinforces that our
replacement therapy litigation in the state.
                                                   right to make an informed decision about our
                                                   medical care carries with it the responsibility    The next time you see a commercial that
in DeBoard, the two plaintiffs were                                                                   seems to spend 10 seconds extolling the
                                                   to ensure that we know all the risks and
prescribed Premarin, Provera, and Prempro,                                                            benefits of the medication and 20 seconds
                                                   benefits of any medications that may be
each of which contains estrogen and/or                                                                listing the potential risks and side-effects,
                                                   prescribed for us. it is a fair assumption
progestin, as part of hormone replacement                                                             remember that it is much more than fodder
                                                   that many, if not most, consumers do not
therapy. several years after therapy was                                                              for potential saturday night live spoofs. let
                                                   read the warnings that come along with their
initiated, both were diagnosed with breast         prescription medication. Those individuals         it be a reminder of our duties to ourselves,
cancer. They each brought product liability        are depriving themselves of the right to           our families, and our patients and residents.
actions against the drugs’ manufacturers,          make a fully informed decision regarding
claiming failure to warn,       fraud and          the medication. The DeBoard case tells us
misrepresentation.     however, summary            that if the warnings have been approved by                           Fred     J.   Hughes
judgment was granted to the pharmaceutical         the Fda, the consumer in new Jersey is                               is a Partner in the
                                                   very unlikely to have any legal claim against                        Philadelphia      area
                                                   the drug’s manufacturer no matter how                                office. he brings ten
                                                   devastating the risk that has come to fruition.                      years of new Jersey
                                                   we owe it to ourselves to know the risks of                          medical malpractice
                                                   whatever we are putting into our body and                            defense experience to
                                                   to weigh the positives of the medication                             McCumber daniels,
                                                   against the potential drawbacks. as regis                            along with litigation
                                                   knows all too well, the final answer has to          experience in the areas of general
                                                   come from us.                                        liability, environmental liability and
                                                                                                        commercial liability. Mr. hughes
                                                   as health care providers, the effect of the          serves as vice-President of the
                                                   DeBoard case is that fully and clearly               american society for healthcare
                                                   conveying the potential risks and side-effects       risk Management’s (ashrM) new
                                                   of proposed drug therapy to your patients
                                                                                                        Jersey Chapter. email Mr. hughes at
                                                   becomes even more vital. Patients are going
                                                                                                        fhughes@mccumberdaniels.com
                                                   to be stricken with diseases such as cancer,


PaGe 2
www.MCCuMBerdaniels.CoM                                                                                          FourTh quarTer, 2011
                                     don’t Take away my error in Judgment
                                                        By John F. McGreevey



           Defendants          in     medical     the jury that defendants were not liable      “error in judgment” charge to the jury.
 malpractice cases often feel that the            for mistakes or errors in judgment. if        Based on its holding in Pringle, the Court
 instructions to the jury are unfair and place    defendants were successful in presenting      granted a new trial.
 a burden on the defense that is difficult        this argument to the jury, trial courts
 to overcome. in the past, there was one          often instructed juries on the defendant’s    The appellees argued that the holding in
 jury instruction, referred to as the ‘error in   proposed “error in judgment” charge           Pringle should not apply to the Passarello
 judgment” charge, which was perceived as         which often led to successful verdicts in     case as the verdict in Passarello was
 leveling the playing field. unfortunately,       favor of the defendant. over the years,       reached prior to the filing of the decision
 due to a recent superior Court ruling,           many appeals were taken regarding this        of Pringle. The superior Court addressed
 that instruction is no longer available to       jury instruction with varying results.        this argument and held that “although
 defendants and its applicability has been                                                      Pringle was not released into the public
 further restricted.                              on august 31, 2009, the superior Court in     domain until after the jury reached its
                                                  Pringle addressed the long-debated issue      verdict here [in Passarello], this case
 on september 9, 2011, the superior Court         and abolished the “error in judgment”         remained in litigation, pre-judgment, as
 in Passarello v. Grumbine, M.D., ---             defense. The Pringle Court, sitting en        the Passarello’s awaited disposition of
 a.3d.---, 2011 wl 3963587 (Pa. super),           banc, stated that the “fundamental issue in   their post-trial motion and both parties
 held that its prior ruling in Pringle v.         medical malpractice cases, is whether the     awaited transcription of the records. in
 Rappaport, D.O., 980 a.2d. 159 (Pa.              defendant violated the applicable standard    point of fact, the trial court did not enter
 super 2009), prohibiting the application         of care and, if so, whether that violation    judgment on the verdict until september
 of the “error in judgment” rule, would           resulted in injury to the plaintiff. Thus,    7, 2010, more than a full year after
 apply retroactively to cases in which the        we must determine whether an ‘error of        publication of the decision in Pringle.”
 final judgment on the verdict had not been       judgment’ instruction serves to clarify the   Passarello at *4. Therefore, the Court
 entered before the Court’s 2009 filing           fundamental issue.” Pringle at 173. The       found “no impediment to retroactive
 date in Pringle. Therefore, the “error in        Court held, “[F]or at least two reasons,      application of the holding in Pringle.”
 judgment” charge is now prohibited in            we conclude that the instruction was          Passarello at *5.
 any cases filed before the superior Court’s      inherently confusing for juries and thus
 ruling in Pringle where no verdict of final      has no place in medical malpractice cases.”   in a time where the legislature has sought
 judgment has been entered.                       Id. in support of the Court’s decision,       to protect the healthcare industry from
                                                  it stated that “the ‘error of judgment’       the burdens of onerous malpractice
 By way of background, until august               charge wrongly suggests to the jury that      verdicts, it is interesting that the Court
 2009, defendants in medical malpractice          a physician is not culpable for one type of   has stripped healthcare providers of one
 cases often argued to the jury that when         negligence, namely the negligent exercise     of their strongest defenses. we can only
 physicians used their best judgment and          of his or her judgment.” The Court further    wait to see what impact this will have
 exercised reasonable care in the treatment       stated, “[T]he ‘error in judgment’ charge     and whether the General assembly will
 of patients their conduct did not constitute     wrongly injects a subjective element into     step in and further rebalance the interests
 negligence. The “error in judgment”              the jury’s deliberations…as such, the         of healthcare providers and medical
 charge generally provided that “physicians       ‘error of judgment’ neither defines nor       malpractice plaintiffs.
 are not responsible for ‘mere errors in          clarifies the applicable standard of care,
 judgment’ or the use of ‘best judgment’          and may likely mislead the jury during its
 unless the resulting error constitutes, or       deliberations.” Id. at 173-74.
 was the result of, negligence.” Pringle
 at 165. essentially, the courts instructed       in Passarello, the superior Court, again                       John F. Mcgreevey is
                                                       addressed the issue in a case                             an. associate in the firm’s
                                                       involving a two-month old baby                            Pennsylvania office.
                                                       who died as a result of undiagnosed                       Mr. McGreevey focuses
                                                       and untreated diffuse acute viral                         his practice on medical
                                                       myocarditis. at trial, the “error in                      negligence and product
                                                       judgment” defense was presented to
                                                                                                                 liability defense. Mr.
                                                       the jury and a verdict was rendered
                                                       in favor of the defendants. Plaintiffs
                                                                                                                 McGreevey is licensed
                                                       appealed after their motion for            to practice in Pennsylvania and new
                                                       post-trial relief was denied. The          Jersey.    email Mr. McGreevey at
                                                       appellants argued, inter alia, that        jmcgreevey@mccumberdaniels.com
                                                       the trial court erred in giving the


PaGe 3
www.MCCuMBerdaniels.CoM                                                                                   FourTh quarTer, 2011
     quality of Care and satisfaction on long Term Care are on the rise,
                       But so are liability Claim Costs
                                                               By Karen l. Tucci


          a recently released report by The         the national level is decreasing at a 1% annual
                                                    rate. however, the measurement for long term
                                                                                                       eleven profiled states. importantly though,
                                                                                                       the frequency of claims has decreased since
american health Care association (ahCa)
                                                    care liability costs, “loss rates,” is showing a   2004, so fewer claims does not necessarily
and the alliance for quality nursing home
                                                    3% increase annually. The average severity         equate to lower loss rates.
Care (alliance), entitled “2011 annual
                                                    of the claims is also steadily increasing, at a
quality report, a Comprehensive report on
                                                    rate of 4% annually. The types of allegations      it is comforting and reassuring to know
The quality of Care in america’s nursing and
                                                    are discussed in the analysis so that long term    that our country’s nursing homes are
rehabilitation Facilities,” shows that care has
                                                    care providers can understand what kinds of        getting better and that there are tremendous
improved in 9 out of 10 quality measure areas
                                                    allegations give rise to higher liability loss     ongoing efforts to better enable providers
since 2009. For long-stay care, improvements
                                                    rates. Pressure wounds are the costliest type      to achieve performance excellence.
are noted in the measures of activities of
                                                    of injury.                                         however, work still needs to be done to
daily living, pain, high-risk pressure ulcers,
                                                                                                       reduce the costs associated with nursing
indwelling catheters, mobility, and urinary
                                                   The analysis also shows that states with            home claims and litigation. rising claim
tract infections. The one category which did
                                                   substantive tort reform continue to experience      and litigation costs, including the payment
not improve was physical restraints, which
                                                   lower loss rates compared to states that have       of high insurance premiums, can divert
went down 6.5% since 2009.
                                                   not had substantive tort reform. although           resources from resident care. if quality
                                                   states with tort reform are experiencing lower      of care and satisfaction continue to be
The largest increase in quality measures
                                                   loss rates, the analysis highlights the fact        on the rise, it does not make sense that
occurred in short-stay care, where the measure
                                                   that the presence of limits on non-economic         claims and litigation would be on the rise
for delirium improved
                                                                          damages             alone    too. Perhaps we will better understand
by 14.3%.
                                                                          does not determine           this discrepancy as more research is
                                Care has improved in 9 out of             the        effectiveness     conducted.
nursing             facility   10 quality measure areas sinCe of tort legislation.
survey        performance          2009. for long-stay Care,              west virginia and            The 2011 annual quality report, a
results contained in
                                improvements are noted in the             California, two states       Comprehensive report on The quality of
the report demonstrate
                                measures of aCtivities of daily           that have enacted a          Care in america’s nursing and rehabilitation
that      the      average
                                living, pain, high-risk pressure          $250,000 cap on non-         Facilities can be accessed at:
number of citations for
                                                                          economic       damages,
“substandard        quality      ulCers, indwelling Catheters,
                                                                          have some of the              h t t p : / / w w w. a h c a n c a l . o rg / q u a l i t y _
of care” has decreased            mobility, and urinary traCt             highest liability loss        improvement/Pages/qualityreports.aspx.
since 2009.           since      infeCtions. the one Category             rates in the country.
2000, the percentage
                                   whiCh did not improve was                                           The 2011 long Term Care actuarial analysis
of facilities cited has
dropped       by     1.7%.         physiCal restraints, whiCh             however, the use             can be accessed at:
                                  went down 6.5% sinCe 2009.              of     arbitration,    or
satisfaction rates among
                                                                          alternative      dispute      http://www.aon.com/risk-services/
residents and employees
                                                                          resolution,             is    thought-leadership/reports-pubs_2011_
have also improved.
                                                   associated with lower liability loss rates.          long_term_care_survey.jsp
since 2005, the number of consumers, both
                                                   The analysis reports that claims submitted
residents and family members, who would
                                                   to arbitration are 25% less costly than those
recommend a skilled nursing or rehabilitation
                                                   that do not go to arbitration.
facility remains high at 87%. The report
finds that the steady increases in satisfaction
                                                   unsurprisingly, the analysis also determines
since 2005 demonstrates that more providers
                                                   that the age of a claim has an effect on                            Karen l. tucci is an
are implementing practices recommended by
                                                   the cost of the claim. Claims that are less
national quality-improvement initiatives.                                                                              associate at McCumber
                                                   complicated and claims with lower financial
                                                   stakes tend to be resolved more quickly,                            daniels and is based
The improvements discussed in the report                                                                               out of the Firm’s
                                                   whereas claims with more complicated
seem to have a positive effect on the number
                                                   allegations or higher damages take longer                           Pennsylvania office.
of liability claims lodged against nursing
home facilities.       The 2011 long Term
                                                   to resolve.                                                         Ms. Tucci’s areas
Care actuarial analysis, conducted by the                                                                              of practice include
                                                   a study on state specific results indicates
actuarial and analytics Practice of aon                                                                                medical malpractice
                                                   that Pennsylvania’s loss rate per occupied
Global risk Consulting with the support of                                                               defense, premises liability defense,
                                                   bed has decreased from a high of $1,270
the ahCa, contains the results of an actuarial                                                           commercial litigation and auto liability
                                                   in 2004. since 2007, the loss rate has been
analysis on general liability and professional
liability claim costs incurred by long term care
                                                   stable at just over $800 per occupied bed. it is      defense. email Ms.Tucci at ktucci@
                                                   projected that, in Pennsylvania, the 2011 loss        mccumberdaniels.com
operators in the u.s. The analysis reveals that
                                                   rate of $811 will be the 5th highest among the
the frequency of long term liability claims at



PaGe 4
www.MCCuMBerdaniels.CoM                                                                                              FourTh quarTer, 2011
                    Bad-Faith is Back in Florida’s legislative Crosshairs
                                                        By Judd w. Goodall



          Bad-faith     reform has been        or insured makes demands that cannot            in both the House and the Senate. As
discussed in Florida for several years.        reasonably be complied with; which              noted above, shouldn’t the common
With the advent of Governor Rick Scott         raises the question, “Was the claimant          law claimant also have a duty to make a
winning his gubernatorial campaign in          or his representatives even making the          demand in good-faith? As every contract
2010 on a platform of reforming insurance      demand in good-faith?” As a condition           in Florida imposes on each party to the
and bad-faith litigation, insurance reform     precedent to filing a statutory bad-faith       contract a requirement of good faith and
became a major topic of debate during          action, Florida Statute §624.155 requires       fair dealing, the current form of §624.155
Florida’s 2011 legislative session. One        , the claimant to provide the insurer with      should, perhaps, be updated to equal the
area of proposed major reform ultimately       sixty (60) days written notice of the           playing field. This reciprocal requirement
revamped the insurance code relating to        alleged violation and provides that “no         of good-faith was introduced in various
property insurance. Another significant        action shall lie, if within the (60) days       forms of the 2011 proposed legislation.
area of proposed reform was focused to         after filing the notice, the damages are        As we know, however, bad-faith reforms
protect insurers from the perpetual threats    paid or the circumstances giving rise to        died last session…likely, in part, because
of “bad-faith” and the uncertainty                      the violation are corrected.” In       of the behemoth property insurance
of impending lawsuits. The                                 Florida, however, there are         reforms that were accomplished in 2011.
debate over Senate Bill                                        no such notice or cure
408 (SB 408), relating                                           provisions related to         In sum, because they died during the
to property insurance,                                           claims for common law         last session, we should expect that bad-
grew      larger     and                                          bad faith.                   faith reforms will be one of the targets
became more tangled                                                                            for the upcoming Florida legislative
than most anticipated.                                              Representative             session. Be sure to work with your
By the time SB 408                                                  Kathleen Passidomo         representatives to get your views in
was finalized and the                                               is seeking to change       front of te legislature because this may
rewrites were completed,                                          that. On October 20,         be the best opportunity to get these
significant time and energy                                      2011, She introduced          much needed reforms passed into law.
had been expended, but                                        House Bill 427 (HB
the agreed-upon legislation was                           427) in anticipation of the
signed into law by Governor Rick Scott.            upcoming legislative session. HB
In contrast, although bad-faith legislation    427 proposes adding language to Florida
had been introduced in several forms, the      Statute §624.155 to include a condition
debate remained limited. The 2011 “bad-        precedent to a claimant bringing an
faith” discussion lost momentum, and the       action in common law for bad-faith. The
bills relating to the subject died.            focus of HB 427 is to create the notice
                                               requirement to the insurer for the alleged
While the new property bill is complicated     violation and provide an opportunity for
and seems to raise many new questions,         the insurer to cure the alleged violation
                                               within (60) days for common law bad-                              Judd W. goodall is a
it appears that the legislature has very
                                               faith claims. The proposed legislation                            partner at McCumber
little appetite to address further statutory
                                               also provides that in a third-party liability                     daniels and practices
property insurance concerns in the
                                               claim, if a claimant files a notice and the                       from the firm’s Florida
2012 legislative session and is satisfied                                                                        office.    Mr.     Goodall
with what was accomplished in the last         insurer pays the amounts demanded, or
                                               the applicable policy limits, the insured                         focuses his trial practice
session. Accordingly, there is a renewed                                                                         on first-party insurance
push to engage in bad-faith reform.            is entitled to a release from the claimant.
                                                                                                                 defense. Mr. Goodall
This will likely launch explosive debate       Significantly, it also provides that if the
                                                                                                                 has represented Florida’s
between the Florida trial attorneys and        insured files the notice and the claimant
                                                                                                 largest and smallest property insurers in
the insurance lobby.                           accepts the insurer’s tender, the insured         first-party property disputes relating to
                                               is also entitled to a release from the            sinkhole, windstorm, fire, mold and water
Currently, an insurer may be found to act      claimant.                                         losses. Mr. Goodall is often called upon to
in bad-faith for failing to settle a claim                                                       provide coverage analysis, opinions and
when it could have and should have             Not only will these proposed changes              continues to work on many “bad faith”
settled. The challenge for insurers is how     provide fuel for some explosive debate,           related matters. email Mr. Goodall at
to protect themselves when a claimant          we can also expect competing bills                jgoodall@mccumberdaniels.com



PaGe 5
www.MCCuMBerdaniels.CoM                                                                                  FourTh quarTer, 2011
                                                    nurses Corner
                                                        By dale r. day



How can you make sure                        indulge while you are out.                     offers you food and drink. If you are
that the turkey is the only                  3.    Prepare for outings: If you              not hungry, then simply say so. Do
                                             have some holiday parties or meals             not let yourself be bullied into eating
one stuffed during the                       planned over the holiday season, try           something that you really don’t want.
holiday season?                              to compensate by having some healthy
                                             eating days leading up to the event.           9. Leave what you don’t want:
According to a recent Weight                                                                Despite being told as a child to clean
Watchers report, the average                 4. Balance your meals out: Don’t be            your plate, don’t feel obliged to clear
American gains an average                    tempted to fill up your plate with purely      your plate, especially if you are full.
                                             rich, calorie-laden food. Instead, have a      When you feel full, stop eating.
of 7-10 pounds between
                                             little of everything including fruit and
Thanksgiving and New Year’s                  vegetables. This way, you’ll still get         10. When you’re at a party buffet
Day. Being health-conscious                  to indulge as well as receive valuable         table, choose three or four items you
doesn’t necessarily mean that                nutrients and vitamins.                        really want to eat, and then step away
you can’t enjoy the holiday                                                                 from the table so you’re not tempted
season and have a little bit                 5. Be aware of sugary foods: Always            to graze. If you’re in the middle of an
                                             remember that rich, sugary foods have          interesting conversation or standing
of what you fancy. There are
                                             a nasty habit of making us crave yet           on the other side of the room from
many ways in which you can                   more rich and sugary foods. We’ve all          the food, you’re less likely to keep
help strike a balance between                been there...over-indulging in sweet or        absentmindedly refilling your plate.
maintaining a healthy diet,                  rich food...feeling bloated, sick, and
exercising and joining in with               making promises to never eat again...          11. An easy way to monitor portion size
the fun and festivities.                     and, a couple of hours later, finding          is to put food on a small plate, or on
                                             ourselves back in the kitchen, picking at      a napkin. It’s a simple trick: You can’t
1. Exercise: Most people have little         leftovers. By ensuring that you practice       fit as much on a napkin, so you won’t
extra time available over the holiday        healthy eating over the holidays, and          eat as much.
season for a regular exercise regime.        throw in some form of regular exercise,
To increase exercise try walking to          you can expect to have more energy             Incorporating even several of these
the cocktail party, or park your car a       and fewer cravings.                            suggestions will help folks weather
little farther away. Even if you can fit                                                    the Holiday Season without fear of
just one or two short sessions a week        6. Stock up on healthy snacks: When
                                             you shop for groceries, be sure to throw       enjoying Holiday Gatherings!
into your schedule, exercise will give
you a little leeway to indulge while         in some healthy snacking items. Fill up
still keeping your weight stable.            on raw vegetables, such as carrots or
Remember that you can break up your          celery, which can make a simple snack
exercise into short 10 minute spurts         in times of temptation.
and try to include several of these short
bursts per day. A 30-minute brisk walk       7. Moderate alcohol intake: Don’t
most days of the week can do wonders         forget that alcohol is fattening too. That
for maintaining your waistline.              innocent-looking glass of sparkly wine
                                             or that small bottle of beer may look as
2. Eat regularly: If you are going           though it will do no harm. However,
to a big party or dinner, don’t starve       alcohol contains calories and lots of
yourself all day in anticipation. You’re     them. Try and control the amount of
in danger of arriving there feeling          alcohol you consume over the holiday
ravenous and eating everything in            period and, in the same way as food, try
sight. Instead, have some low-fat,           not to over-indulge regularly.
healthy snacks throughout the day. By
doing this, you’ll be less likely to over-   8. Be assertive: Don’t feel as though
                                             you have to say yes to everyone that         McCumber Daniels nursing staff: Dale Mock; Marla Iley; Patricia A.
                                                                                          Baccari; Not shown: Shannon Green, Gale Decker



PaGe 6
www.MCCuMBerdaniels.CoM                                                                                    FourTh quarTer, 2011
 ANNOUNCEMENTS
  sPeaKinG evenTs                                        reCenT arTiCles
          on november 8, 2011, andrew Mccumber                   Kimberly a. Potter contributed to the
          is scheduled to present a webinar to the               september 2011 edition of For The Defense.
          swiss re Medical Malpractice expert                    Ms. Potter’s article is titled, sex abuse in
          network on corporate negligence and the                the Foster Care system: Circumventing
          evolution of hospital liability. Topics to
                                                                 agency vicarious liability.
          be covered include: traditional theories
          of liability, emergence of non-delegable
          duty and corporate negligence, impact of
          corporate negligence on hospital liability
          claims, and the extension of corporate
          negligence to other entities.                  in The news
          Judd W. goodall is scheduled to present                we are proud to announce that McCumber
          on a panel regarding the ‘impact of the                daniels’ attorneys andrew r. Mccumber
          2011 statute.’ among other insurance                   and Derek M. Daniels were named 2012
          topics, the panel will discuss the revisions           Best lawyers in america®, both in the field
          to the sinkhole statutes and where we are              of Medical Malpractice law.
          now six months after the new Florida
          insurance legislation has passed.
                                                                 stuart t. o’neal was named President of the
                                                                 Professional liability defense Federation
          Mark b. Hartig is scheduled to present                 (PldF) during the organization’s annual
          on a Panel discussion at the american                  Conference in Chicago, illinois. Please
          Conference institute’s Preventing and                  visit www.pldf.org for more information
          defending long Term Care litigation                    on this organization.
          Conference on January 31, 2012 at the
          Conrad hotel in Miami, Fl. his panel
          will discuss using new science to
          develop winning defense strategies                     Mary beth Davis was named Chair of
          in Tried and True areas of liability:                  the 2012 annual women’s Forum for the
          Medication errors, Pressure ulcers, and                Claims and litigation Management (ClM)
          Fall Cases. For more information on                    alliance. Please visit www.theclm.org for
          this conference please visit http://www.               more information on this organization.
          americanconference.com/2012/884/
          preventing-and-defending-long-term-
          care-litigation.




 PaGe 7
 www.MCCuMBerdaniels.CoM
www.mccumberdaniels.com                                                       FourTh quarTer, 2011
       Mccumber Daniels’ team                         McCumber daniels is a full service, Martindale-
                                                      hubbell “av-rated” civil litigation and appellate firm
                              shareholders
                                                      with offices in Florida and Pennsylvania. McCumber
                         andrew r. McCumber
                                                      daniels offers a wide variety of litigation services for
                             derek M. daniels
                                                      insurers, health care facilities, businesses, financial
                              e. Patrick Buntz
                                                      institutions and licensed professionals. with years
                               Mark B. hartig
                                                      of legal, corporate, medical, administrative and
                              Kenneth a. Puig
                                                      legislative experience, we are able to provide full-
                              stuart T. o’neal        service representation for all of our clients in all types
                                                      of disputes or litigation.
                                    Partners
                              Judd w. Goodall         McCumber daniels attorneys are well versed in
                                Fred J. hughes        applicable law, procedure, courtroom tactics, legal and
                               robert w. Pyles        evidentiary rules, as well as the analysis and application
                                                      of medical or financial information. our attorneys
                                  associates          provide thorough investigation, negotiation, trial, and
                             Mary Beth davis          appellate services our clients expect and deserve.
                            Patrick T. duffy
                           Michael P. Gould           McCumber daniels employs full time nurses as part of
                           Patrick J. healey          its permanent staff to support our medical and personal
                          Kyleen a. hudson            injury defense practice. The nurses quickly provide
                         John F. McGreevey            organization of medical documents and a preliminary
                    amy l. Miles, esq., Editor        analysis of the medical issues involved in each case.
                           starlett M. Miller         Their contributions are a value added asset to the
                        Marc l. Penchansky            attorney assessing and defending the case.
                         Kimberly a. Potter
                        albert M. rodriguez
                             Karen l. Tucci           Please visit our website to find out the latest legal news,
                              Kara C. white           seminars, speaking opportunities and firm news.

                                                      For more information on anything that you have read
                   Marketing Department               today, please contact Andrew McCumber at amccumber@
                              stephanie hedrick       mccumberdaniels.com




Florida oFFiCe:                    Pennsylvania oFFiCe:
4830 wesT Kennedy Boulevard        1400 souTh TrooPer road
suiTe 300                          suiTe 102
TaMPa, Florida 33609               eaGleville, Pennsylvania 19403
813-287-2822                       610-650-0871

www.MCCuMBerdaniels.CoM                                                                     Third quarTer, 2011

				
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