Archives: medical

Normal
0

false
false
false

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;
mso-ansi-language:#0400;
mso-fareast-language:#0400;
mso-bidi-language:#0400;}

(Photo by Indi Samarajiva)

 

The Pennsylvania Support Rules were recently amended on December 30, 2012.  Rule 1910.29, formalizes the presentation of support evidence for Family Law Cases.  Anecdotally, the Rules of Evidence may not always be strictly adhered to in family law cases due to probative value of some forms of evidence weighed against the cost and difficulty of verifying it or authenticating it at trial. 

 

Rule 1910.29 attempts to eliminate some of ambiguity about the admissibility of some forms of evidence by providing counsel the opportunity to offer the other side copies of those documents they will be offering into evidence twenty (20) days prior to the hearing.  In doing so, provided the other party does not object to the admission of those documents into evidence, they will be accepted as authentic and admitted into the record.  If an objection is made to the records, then the Pennsylvania Rules of Evidence will apply as to the admissibility of those documents into evidence.

 

This rule also standardizes the admission of medical evidence in both record and non-record proceedings, (i.e. proceedings which are not recorded by a court reporter).  Whenever a party raises a medical issue as preventing them from earning income, that party will need to obtain a Physician Verification Form and have their physician fill it out and verify its contents as accurate.  This Physician Verification Form will hopefully eliminate some of the ambiguity for those parties who claim a disability, but conveniently have failed to file for Social Security Disability or worker’s compensation benefits. 

 

If the party who has introduced the Physician Verification Form at the non-record hearing would like to have it entered into the record at the record hearing, then the above rules will apply with giving the other party twenty (20) days notice prior to the hearing and allow the other side the opportunity to file and serve an objection within ten (10) of being served with the document. 

 

By filing an objection, it is likely that the physician will need to testify since there will not be any medical evidence available for the record and if the court deems that the objection to the entry of the Physician Verification Form was frivolous or unnecessary then it is within the court’s discretion under this rule to allocate the costs of the physician’s testimony between the parties.  This portion of the rule is a not-so-subtle suggestion to attorneys to keep their objections substantive and not use objections as means of delay or obstructing the other side’s case.

 

This rule update is a significant change in how evidence is admitted in support actions.  This should help streamline litigants’ ability to offer complicated financial evidence and have objections and questions addressed in advance of the trial, rather than bogging down or delaying the substantive hearing by what amounts to a discovery dispute. 

 

This rule can also have the positive effect of keeping some litigation costs down by allowing a party to produce a non-expert summary and have it pre-approved for admission into evidence, thereby alleviating the need to bring an accountant or other financial expert to court in order to testify as to the information. 

 

Finally, Pennsylvania Family Law procedure varies from county to county and is reliant upon local practice when dealing with a variety of different issues.  This rule update gives some state-wide uniformity to this form of evidence.

 

(Image: http://tennesseelabortalk.com)

While this topic of this blog post is not exactly what this blog typically covers, I frequently find that litigation in another areas of law either impacts or illuminates an issue dealt with by our family law clients.  One such example would be a recent decision at the Eastern District of Pennsylvania interpreting various terms of the Family and Medical Leave Act (“FMLA”).  In that case, a mother had to take off time from work in order to find a new daycare for her autistic daughter who has significant developmental disorders and physical impairments.  Her employer, Reading Hospital Medical Center, opposed the use of FMLA leave for this purpose.  FMLA leave is designed to allow an individual to take time off from work to address family medical issues without the risk of losing their job.

 

The Honorable Timothy J. Savage of the Eastern District looked to the Americans with Disabilities Act (“ADA”) to help identify whether or not the mother’s daughter had impairments which would cause her to fall within the “serious health condition” category of the FMLA.  In doing so, there was also the interpretation of whether the change in daycare constituted “changes in care” as it is contemplated by FMLA regulations.  As drafted, the regulations are silent as to whether moving from one non-medical facility to another constitutes a “change in care,” as it would otherwise be considered when moving someone to a facility offering medical treatment.

 

Judge Savage’s opinion would appear to expand the definitions of some important FMLA terms, but Reading Hospital Medical Center disagrees and does not consider the holding to be a significant expansion of FMLA regulations; they believe Judge Savage’s opinion addresses their narrow set of facts and does not have a broader application beyond this case.  Nevertheless, the holding seems to make a persuasive argument that the regulations now include changes of care for a family member with a serious medical condition, even if the change of care relates to a non-medical facility.  The designation of the medical condition of the individual will dictate whether the time off to facilitate a change in care falls within the protections of the FMLA.

 

 The application of this case to family law is that informs both attorneys and clients as to how much flexibility they have to make appropriate child care arrangements for a special needs child during work hours.  This could be extremely important to a client with a disabled child who has either a limited support network or a difficult (or even non-existent) custodial arrangement with the other parent. Maintaining consistent child care can be challenging under the best of circumstances, but when medical and developmental issues of a child are factored in, it makes a difficult situation that much harder.   For a single parent, child care coverage means maintaining employment and stability for the child; it would seem like Judge Savage’s opinion reasonably fits into the purpose behind the FMLA.

 

For more information about other employment discrimination issues, go to Fox Rothschild’s Employment Discrimination blog written by Richard Cohen and Christina Stoneburner of our New York and Roseland, NJ offices, respectively. 

 

The case involved is Wegelin v. Reading Hospital Medical Center.   An article on the case was written by Saranac Hale Spencer (sspencer@alm.com) and published in the December 4, 2012 issue of the Legal Intelligencer (Vol. 246, No. 108).