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A ruling last week by the Oregon Court of Appeals broadens the traditional interpretation of our state’s dram shop laws and merits closer examination. According to an account published in The Oregonian the decision in a wrongful death lawsuit established that “party hosts whose invitees bring their own alcohol can still be held liable if drunken guests hurt themselves or others.”
The case is formally known as Baker v Croslin. As detailed by the newspaper, the facts of this important case are as follows: a man died in a 2010 shooting incident “after a night of extensive drinking and gunplay at a house party in Northeast Portland.” The party host “was convicted of criminally negligent homicide” but the victim’s widow also filed an Oregon wrongful death lawsuit.

“Under Oregon law, a party host can be held liable for damages caused by intoxicated guests if the host provided the alcohol to a visibly intoxicated guest, and if the host ‘substantially contributed to the intoxication of the guest,’” the newspaper notes. This is a succinct description of Oregon dram shop law – something about which I have written on this blog on numerous occasions. The Dram Shop Law is designed to encourage responsibility on the part of people serving or selling alcohol. We often talk about it in the context of drunk driving, though the details of this case are a powerful reminder that the consequences of reckless alcohol use extend far beyond cars and roads.

According to The Oregonian, the victim’s widow argued that in this particular case, that responsibility extended to the host of a BYOB party on the grounds that while guests brought their own alcohol the host effectively had “control” of what was being served in his home. She lost in the trial court, but last week that ruling was overturned on appeal.

As a Portland wrongful death attorney I applaud this important decision, which extends the responsibility our laws have long demanded of party hosts, bartenders and liquor store clerks in a common sense way. A homeowner who allows a house party to get out of control (as this party obviously did) should not be able to avoid responsibility for his or her negligence simply by claiming that they themselves did not buy the alcohol that led to trouble. Oregon has dram shop laws precisely to ensure that people serving alcohol take proper responsibility for their actions.

The Oregonian: Party host liable for guests, even at BYOB party, Oregon appeals court rules

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Just as the July 4 holiday weekend got underway news broke of a sweeping recall of school buses. According to an Associated Press report, republished by ABC News, “Blue Bird is recalling more than 2,500 All American school buses and some transit buses to fix a problem that could make steering more difficult. The company also is recalling a smaller number of school buses that may be prone to a propane fuel leak, according to paperwork filed with the National Highway Traffic Safety Administration.”
It will be worth keeping an eye on the NHTSA vehicle recall website over the next week or two for further details as this story develops. At this writing the NHTSA had not posted information about the Blue Bird recall, presumably because the company’s paperwork has not yet been completely processed. In the meantime, however, it is safe to say that it is difficult to imagine a clearer risk of injuries to children than a school bus with a steering or a fuel leak issue.

The AP story did not say how many school buses are affected by the steering-related recall notice, only that it involves “some buses made between 2011 and last May.” The story put the number of transit buses affected at 400, but did not say in which cities they are currently on the road. The fuel leak issue involves “388 Vision school buses made in 2012 or 2013,” the news agency reports.

As a Portland attorney who has written in the past about both injuries to children and vehicle recalls of various sorts I’m happy to see the recall notice being issued well before the beginning of the school year – with luck all of the vehicles in question can be fixed before classes begin again – but I am also disturbed to read that “the company has been monitoring the issue since last September” when it first received reports of problems. In other words: it knew about these issues throughout the just-concluded academic year but kept that information to itself. If there is any lesson that car, truck and bus manufacturers ought to have learned over the last few years – especially in light of General Motors’ current troubles – it is that earlier disclosure is almost always better when it comes to safety issues.

Whenever a company is found to have sat on information like this it is difficult for ordinary Oregonians not to conclude that the company is putting its business interests ahead of the public’s safety. At the very least the company might let Americans know in which cities the transit buses are being used, since those will be on the road year-round and not just during the school year.

AP via ABC News: Blue Bird Recalls School Buses for Steering Issue

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When July began on Tuesday an important new Oregon law also went into effect. As reported by The Oregonian a new “mediation program… (gives) patients and their families an option besides suing when medical errors happen.”
The measure was a priority for Gov. John Kitzhaber and, as the newspaper notes, became law following input from both trial lawyers and the Oregon Medical Association. The new law “is intended to cut down on lawsuits and boost the reporting of medical errors to help improve health care practices.”
Some practical details remain to be worked out, and it will take months if not several years before we can say with certainty how well the program is working in practice, but as a public health matter we should all hope that the Early Discussion and Resolution Program, as it is formally known, performs as expected. As I have written in this space as recently as last month, medical mistakes remain far too common in our state and reducing or eliminating them is made more difficult by a reporting system that remains, to a great extent, voluntary. As a result, doctors and patients alike are often working from inadequate data. A system that improved both the volume and the quality of data on medical mistakes would be a huge boon to everyone.

As described by The Oregonian, patients or family members will now be able to file formal notices when they believe a medical mistake has occurred. “The notice triggers what is intended to be a confidential discussion in which a provider or health care facility can even offer an apology or financial settlement. If that is not successful the patient or their family can sue.” While the system does potentially make suits more difficult to file, especially if doctors or hospitals choose to drag the process out, it is important to remember that under this law Oregonians have not lost their right to take grievances to our courts for a fair hearing.

As an Oregon attorney who has worked on medical mistake cases in the past I will be watching this new law closely. If it lives up to the expectations of its strongest advocates it could prove to be a win-win situation for patients, doctors and public health in general. That is provided, however, that a well-intentioned measure does not become a way for negligent doctors and hospitals to avoid responsibility for their own mistakes.

The Oregonian: New Oregon program allows mediation for medical errors instead of suing

More information on the Early Discussion and Resolution Program

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Citing new figures published by the Centers for Disease Control, Oregon Public Broadcasting reports that “excessive drinking accounts for one in every nine deaths in Oregon.” That figure, it adds, puts our state on the wrong side of the national average, which is one death in 10.

Between drunk driving and other well-known alcohol-related risks the figure is, perhaps, less surprising than it might seem. It is worth noting that the study focused on the broad health risks associated with alcohol. While drunk driving was included it was not the sole focus of the research. According to OPB “The study looked at binge drinking, defined as four or more drinks for women and five or more for men, as well as heavy drinking, which is eight drinks a week for a woman and 15 for a man.”
The focus on binge drinking also highlights the importance of strict enforcement of Oregon dram shop laws. These extend responsibility for injuries and damage caused by a drunk person to bars, taverns and any business that sells alcohol. The dram shop rules are a reminder that cutting off someone who is drinking too much is everyone’s responsibility, not just that of the drinker himself or his companions.

On this blog I write frequently about Oregon drunk driving and the damage it does to people and families around our state, but this OPB report is an important reminder that the issue goes beyond driving and that, as OPB notes, “it’s not just college students who abuse alcohol.”
As a Portland drunk driving victim’s lawyer with special expertise in dram shop cases I recommend the OPB report (linked below) to anyone who shares my concerns about this issue.

Oregon Public Broadcasting: Study: 1 in 9 Oregon Deaths Involve Alcohol

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A former NFL player and a former pro wrestler traveled to Capitol Hill this week to warn fellow athletes about the dangers of traumatic brain injuries – but unlike many recent TBI-focused events in Washington in recent months the emphasis of this news conference was teens, not fellow retired pros.

According to a report published by CBS News both “Chris Nowinski, a Harvard graduate and former professional wrestler… and Ben Utecht, a former NFL player for the Cincinnati Bengals and Indianapolis Colts, still suffer years later as a result of these all-too-common injuries.” Testifying before the Senate Special Committee on Ageing, both men focused not on the dangers to professionals like themselves, but on the damage and long-term consequences too many young people risk.

Nowinski told the senators that he suffered a head injury during a wrestling match at age 24, but ignored the symptoms for five weeks. “I lied about my symptoms for five weeks, thinking I was doing the right thing… My ignorance cost me my career, cost me at least five years of my health… and I don’t know what it’s going to cost me in the future,” he said. His biggest fear is CTE – a “progressive neurodegenerative disease (that) can emerge from repeated blows to the head.” He also spoke about the growing body of evidence hinting at a link between traumatic brain injuries sustained in youth and the onset of Alzheimer’s and similar diseases later in life.

Citing CDC figures, CBS reports that “as many as 3.8 million traumatic brain injuries occur each year from sports and recreational activities, and many people are still unaware of the acute symptoms associated with this injury.” Utecht, the former NFL player, told the audience that he did not really appreciate the seriousness of his situation until he found himself being put into an ambulance at age 29 following his fifth documented concussion.

As a Portland TBI injury attorney I found it especially interesting that both of these men emphasized the damage they believe their brains suffered long they made it to the top of their sports. Part of their message to the Senate was that their professional careers were cut short not by damage done in their 20s but by an accumulation of trouble beginning at a much younger age. That, in turn, should focus our attention on the obligation that schools and coaches and other youth sports authorities have to put safety first. Competition cannot come ahead of our kids’ long-term health and the people who run youth sports programs need to be trained in proper concussion protocols. In turn, their supervisors – and all of us as parents – need to insist that those protocols are strictly followed.

As someone who has followed, and written about, this issue on numerous occasions I applaud Nowinski and Utecht for the courage it took to tell their stories in the name of warning others. As both men emphasized, it is especially important for players, coaches and parents to appreciate the potential seriousness of head injuries and to be pro-active about getting young players looked-at as soon as something happens. Waiting and letting one injury pile up after another is just about the worst thing a young athlete can do.

CBS News: Athletes testify on traumatic brain injury

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With the arrival of summer it is time, once again, to remind every parent (and older sibling) out there of the importance of protecting children from window falls. These tragedies are among the most easily preventable Oregon injuries to children.

The issue is back in the news after two incidents in recent weeks here in Oregon, one of them fatal. Earlier this month a four-year-old North Portland boy died after falling from a 3rd floor window, according to television station KOIN. The station also reports that a Beaverton girl was seriously injured in April after a fall from a second floor window.

As the station notes, “statistics show more than 3000 children under the age of 6 fall from windows every year.” It might have added that window fall incidents regularly rise each summer – making the timing of the station’s report particularly important. What makes these incidents especially heart-breaking is how easily preventable they are. It starts, of course, with education – reminding adults as well as kids that screen windows, which are designed to keep bugs out, are never strong enough to prevent even a relatively small child from falling, and reminding parents that children – small ones especially – need to be watched carefully, and should never be left alone in a room with an unlocked window, let alone an open one.

Window guards are an obvious solution, but some even more basic safety measures can be enough to save a life. Window locks, or even a simple dowel inserted in the window track to prevent it from opening more than a few inches, can do wonders in terms of making a room more safe. I encourage everyone reading this blog to go to the links below for more tips and resources. It is worth adding that builders, window installers and manufacturers can be held liable if their products or work are defective or if, in the case of builders, code violations are found to be present.

As an Oregon child injury attorney I have long worked with SafeKids Oregon to help get the word out about window safety. We should not need tragedies like this month’s death in North Portland to remind us all to do the right thing.

The Oregonian: North Portland boy who died in fall from window identified

KOIN TV: 4-year-old’s death shines light on window safety

KOIN TV: Beaverton girl falls from 2nd story window

Resources:
SafeKids Oregon

SafeKids.org: Fall Prevention Tipsheet

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Bicyclist deaths in traffic accidents rose in 2012 (the most recent year for which data is available) both in absolute numbers and as a fraction of the nation’s overall road and highway death toll, according to a new report released by the National Highway Traffic Safety Administration.

As a table on the first page of the report shows, the total number of traffic-related fatalities fell by more than 20% over the last decade, from 42,884 nationwide in 2003 to 33,561 in 2012. During that same time period, however, the number of bicyclists killed on America’s roads rose from 629 to 726 – an increase of almost 20 percent. As a portion of overall traffic-related deaths that represented an increase from 1.5 percent to 2.2 percent – a small portion of the overall number, but a dramatic increase proportionately speaking.

At a time when people across the country are becoming more aware of the health and environmental benefits of cycling these are worrying numbers. It is good to see that tougher enforcement and better public education have brought the overall traffic death rate down so dramatically (indeed, in the 1970s and 80s it was well over 50,000 per year). At the same time it is alarming to see the rate of bicycle accidents and fatalities rise – especially in an era when one might hope that more bikes on our streets would lead to greater awareness and caution among drivers.

A deeper look at the report yields other interesting insights. It is not surprising to learn that the vast majority of cyclist deaths (69 percent) occur in urban areas, but it is unexpected to see that fewer than one-third of fatal accidents take place at intersections. The cycling community has long focused a significant part of its activism on improving safety and traffic flow at intersections, believing that these are especially dangerous areas for bike riders. It is also interesting to learn that the average age of cyclists involved in fatal accidents was 43 – a number that has also risen steadily over the last decade. For all the – justified – attention that we as parents pay to teaching kids bike safety, this is a reminder that adults riding in traffic are the people at, perhaps, the greatest risk day in-day out.

As a Portland bicycle accident victims lawyer I find these facts – and many others laid out in the NHTSA report (see below for a link) – fascinating. They are proof not only of the importance of safety, but of the importance of understanding that better awareness among drivers does not, by itself, make things safer for cyclists. Drivers must act with the appropriate level of caution, and too often they do not do so. Drivers need to remember that ‘Share the Road’ is not a suggestion, it is the law.

NHTSA: Bicyclists and other cyclists 2012

NHTSA Pedestrian data sheet 2012

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Recreational use of marijuana is now legal in two states, including Washington State, and Oregon is among the ever-increasing number of states that permit marijuana use for medical purposes.

As legal acceptance of the drug grows it was, perhaps, inevitable that, in the words of USA Today, “it’s looking like dope is playing a larger role as a cause of fatal traffic accidents.” Put another way: advocates of legalization have long argued that marijuana is no worse for you than alcohol. If, for the sake of argument, we accept that premise then it clearly follows that driving while high should be treated with the same degree of seriousness as driving while drunk.

The evidence is not merely anecdotal. According to USA Today, a recent study by Columbia University found that “of nearly 24,000 driving fatalities… marijuana contributed to 12% of traffic deaths in 2010, tripled from a decade earlier.” The newspaper reports that a recent National Highway Traffic Safety Administration study estimated that “4% of drivers were high during the day and more than 6% at night.” The majority of high drivers were under age 25 – an age group that already has proportionately high levels of both drunk driving and distracted driving, both here in Oregon and elsewhere around the country.

Add to this a recent assertion in The Oregonian that “Oregon ranked fourth in the country for cannabis use by people 12 and older, with most consumers between 18 and 25” and the need for stepped-up education programs is undeniable. Regardless of how one feels about legalization, these statistics combined with the fact that recreational pot use is perfectly legal on the north side of the Columbia River, make it clear that a significant educational effort is probably now a permanent necessity. Put another way, if we acknowledge that more and more people are likely to use marijuana in the years to come, it is essential to educate drivers – and especially younger drivers – about the effect it has on their system, and the importance of not getting behind the wheel while high. We must devote the same sort of energy, effort and funding to ‘driving while high’ education that the country has devoted to anti-drunk driving efforts over the last two generations.

As an Oregon and Washington auto accident victims attorney this is an issue to which I will be paying close attention. However one feels about medical marijuana or outright legalization we can all agree that every driver needs to be aware of the danger he or she poses to themselves and to others if they drive while high. Sadly, this is a problem that is no more likely to be solved completely than the drunk driving issues that have plagued the country for decades. Like drunk driving, however, it is something that can be reduced through a combination of education and enforcement.

USA Today: Marijuana playing larger role in fatal crashes

The Oregonian: Medical marijuana in Oregon: State program prone to exploitation, abuse report says

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A story earlier this week on Oregon Public Broadcasting began with a stark statistic: “Oregon’s health care facilities reported more than 650 adverse events last year, 44 percent of which ended in serious harm or death, according to a new report by the Oregon Patient Safety Reporting Program.” Forty-four percent means that, as the article’s headline put it: “285 medical mistakes ended in serious injury or death in Oregon last year.”
For a state our size this is a shocking, and frankly unacceptable, number. “Adverse events include medication mix-ups, falls, infections, and erroneous surgeries being performed,” according to OPB. The number in the study is the largest reported in Oregon’s history, though the people who compiled the study say that can be attributed, in part, to a higher participation rate (the study was voluntary, since “the state doesn’t require health care facilities to report such mistakes,” OPB notes.)

The important thing to take away from the study, however, is how critical it is for doctors to take extra care when prescribing drugs and ordering treatment. Mistakes are simply less likely to happen when fewer and more carefully considered treatments are ordered, a fact that our current system, in which doctors get paid for each procedure they order, does not always encourage.

This simple fact even tipped over into our state’s politics recently. As OPB reported a few days earlier, Republican senate candidate Monica Wehby has been campaigning against Obamacare. The broadcaster reported that one of her criticisms of the program is a claim that defensive medicine – essentially doctors over-ordering care out of a fear of lawsuits – is a major driver of our country’s ever-rising medical costs. As OPB demonstrated, however, defensive medicine “only accounts for about 1-3 percent of health care costs,” according to figures provided to the broadcaster by the Chief Medical Officer at Oregon Health & Science University.

As a Portland personal injury attorney who has dealt with many cases involving medical mistakes and their consequences my own experience is that so-called defensive care is rarely the problem with our hospital system. The important thing is for hospitals and doctors to be more careful about what they do, and what they order, ensuring that Oregonians are always getting the treatment they need. Of course, the vast majority of our state’s doctors do this every day. Courts and lawyers are here to help Oregonians deal with the consequences when the system fails, but the far better outcome is for doctors – and, more importantly, the medical organizations that employ them – to focus on patients first, rather than fees.

Oregon Public Broadcasting: Report: 286 Medical Mistakes Ended in Serious Injury or Death in Oregon Last Year

Oregon Public Broadcasting: How Does Defensive Affect Health Care Costs

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Yesterday at the White House President Barack Obama hosted a special event designed to spotlight the dangers of concussions and traumatic brain injuries in youth sports. As someone who has worked and written on these issues for years it is inspiring to see them receiving this kind of attention at the presidential level.

Citing the Centers for Disease Control, the White House website notes that “kids and young adults make nearly 250,000 emergency room visits each year as a result of brain injuries from sport and recreation. And that doesn’t include visits that young people made to their family doctor, or those who don’t seek any help.”
To put these issues in the spotlight, Mr. Obama was introduced at the event by a teenage girl who suffered a concussion while playing soccer. The President told attendees that concussions “are not just a football issue. They don’t just affect grown men who choose to accept some risk to play a game they love and excel at. Every season, you’ve got boys and girls who are getting concussions in lacrosse and soccer and wrestling and ice hockey, as well as football.”
According to data published on the White House website in relation to the event the NCAA and the Defense Department have jointly committed $30 million to “concussion education and the most comprehensive concussion study ever, involving up to 37,000 college athletes.” The White House also notes that “The National Institute of Standards and Technology (is) investing $5 million over the next five years to develop more advanced materials that can provide better protection against concussions for our athletes, troops and others.”
As a Portland concussion and sports injury attorney with a special interest in injuries to children I was very excited to hear about yesterday’s White House event and to see the media coverage it received. I have used this blog for several years to try to highlight the risks of youth sports. As the President said yesterday, those risks do not in any diminish the important role sports play in helping build character, life skills and physical fitness. They are an important part of our children’s lives. As parents, however, it is equally important for all of us to do everything we can to guarantee our kids safety, and to support any initiative that makes youth sports safer.

White House Website: President Obama Hosts the Healthy Kids and Safe Sports Concussion Summit

Transcript of the President’s remarks