Oregon Injury Lawyer Blog

A recent column in the Capitol Hill newspaper Roll Call highlights a potentially serious attack on patients rights here in Oregon and elsewhere, one that has received relatively little notice in the months since the new Congress convened.

The focus of the piece is HR 5. Formally titled the Help Efficient, Accessible, Low-Cost, Timely Healthcare Act (i.e. the “HEALTH Act”), it is billed as a centerpiece of Republican efforts to repeal and replace the health care reform act passed by President Barack Obama and the Democrats last year. According to the federal government’s legislative bill-tracking service, Thomas.gov, the bill is co-sponsored by about half of all the Republicans in the House. Among Oregon’s congressional delegation only Rep. Greg Walden, whose district covers much of rural eastern and central Oregon, is a co-sponsor.

The official summary says that the bill “sets conditions for lawsuits arising from health care liability claims.” In particular, it establishes a three-year statute of limitations for most health-care related injuries. In addition, the bill “limits noneconomic damages to $250,000 (and) makes each party liable only for the amount of damages directly proportional to such party’s percentage of responsibility.” It also forbids the awarding of punitive damages “in the case of products approved, cleared or licensed” by the federal Food and Drug Administration (FDA).

In practical terms what does all of that mean for personal injury and medical malpractice victims here in Oregon? The most important effect of the bill would be to sweep away state law where medical malpractice and patients rights are concerned. As the Roll Call column notes, these matters have traditionally been left to the states (making it somewhat ironic that among HR 5’s sponsors are many of Congress’ most vocal defenders of states’ rights). It would, in effect, replace decades of carefully considered state law on Oregon product liability, medical malpractice and patients’ rights with a national, one-size-fits-all, approach.

From a Portland personal injury lawyer’s perspective, this legislation deserves closer public scrutiny. The effect on victims seeking justice for a medical malpractice claim or severe brain injury here in Oregon could be devastating – shifting the scales of justice decisively in favor of large companies or irresponsible players within the health care system. It is particularly worrisome that the legislation would, in effect, provide blanket immunity from lawsuits to any product or drug approved by the FDA regardless of the circumstances of the product’s failure or the nature of the damage it caused. Clients should know, however, that Oregon’s medical malpractice, traumatic brain injury and personal injury attorneys will be here to defend them, regardless of what happens in Washington DC.

Roll Call: Vance: Medical Malpractice Is Issue for the States

Thomas.gov: Official summary of HR 5

A recent announcement that insurance giant Allstate is buying the Esurance and Answer Financial brands from the smaller, less well-known, White Mountains Insurance Group raises several troubling questions.

According to an Associated Press article, Allstate expects to pay about $1 billion for the two brands. The acquisition will allow Allstate to broaden the offerings available under its corporate umbrella. AP cites an Allstate press release claiming “the deal will help it tap consumers who prefer certain brands along with consumers who want choices among insurance carriers.”

Leaving aside the dubious claim that one company’s marketing of its products under different names actually constitutes “choice” from a consumer’s perspective, customers might also want to consider what a company really has in mind when it makes acquisitions like this at below-market-value. Notably, White Mountain told the AP that the sale “will increase its book value by $80 per share.” Yet in trading after the deal was announced White Mountain’s stock rose by only $51 (about 15%) – indicating that the market thinks White Mountain should have gotten more money from Allstate for the deal to raise the company’s valuation as much as the White Mountain claims.

So Allstate seems to have obtained Esurance and Answer Financial at a cut-rate price. Combine this with Allstate’s PR statement announcing, according to AP, “its first-quarter profit more than quadrupled as it paid out less money for damage claims” and one has to wonder who, exactly, Allstate is keeping in “good hands” – its investors or the customers who count on it for insurance coverage.

From an Oregon personal injury attorney’s perspective, this is a near textbook example of the mindset consumers often find themselves struggling against when seeking a just settlement following a Portland auto accident, a severe injury to the brain or spinal cord or an industrial accident. Fighting for your rights against a company more concerned with its bottom-line than with fair play or justice is never easy. Severe injuries here in Oregon should not lead to a series of battles with an insurance company over the benefits you deserve, but when they do it is important to have an experienced Portland personal injury lawyer in your corner.

Associated Press: Allstate buys Esurance, Answer Financial for $1B

Fox News used to run a regular segment called “stupid criminals.” If it were still on the air the subject of today’s Oregon drunk driving blog would definitely be a candidate.

According to The Oregonian, Aaron Arrell killed a woman in an Oregon fatal hit-and-run accident in March, and was apprehended in large part because he tried to cover his tracks by having his wife phone police to report their van – the vehicle involved in the accident – stolen. “Had they not called, it may have gone unsolved,” the paper quotes a Multnomah County prosecutor saying.

When police caught up with Arrell – based largely on the description of the vehicle that his wife had given them – he tested for blood alcohol at almost twice the legal limit, according to the paper. It also emerged that he was driving on a suspended license, and had been cited twice previously for doing so in the weeks prior to the Portland drunk driving fatality.

The Oregonian reports that Arrell pled no contest “to criminally negligent homicide, failures to perform the duties of a driver to an injured person and drunken driving.” He was sentenced to 50 months in prison as a result of the Oregon drunk driving conviction. The fact that this was also a Portland hit-and-run accident made the charges all the more serious.

It is good to know that such an irresponsible motorist is going to be behind bars. We have here a driver with a suspended license who went out anyway and, by his own admission, drank at two bars that evening, and who then left the scene of the accident caused by his own recklessness. There is no word, according to The Oregonian, on whether the victim’s family plans to seek further justice in the civil courts. Regardless of how they come down on that very painful decision, it is important that other families in similar situations understand that the court system is here to help defend their rights. An experienced Portland drunk driving victims’ attorney can offer invaluable advice at such moments, helping families see beyond the immediate trauma, and helping them to protect their rights.

The Oregonian: Drunken driver who tried to cover up fatal crash ends up helping Portland police track him down, gets 4 years in prison

As the National Hockey League playoffs move toward their conclusion over the coming weeks TV viewers in Canada are being offered evidence that the league is taking its responsibilities regarding traumatic brain injuries increasingly seriously.

On the ice at the pro level, new regulations now require any player who suffers a suspected head trauma to be removed from the game immediately and to spend at least 15 minutes in a “quiet room” undergoing medical evaluations. Whether the player returns to the game or not is a decision made by the doctors on site, not the coaches or the player himself. When one considers that as recently as 20 years ago many NHL players did not even wear helmets this has to be considered significant progress.

Off the ice the league is also making an effort to set a better example, particularly where impressionable youngsters are concerned. Canadian TV viewers of the hockey playoffs are repeatedly seeing a commercial urging them to visit the website of “ThinkFirst”, which describes itself as “a National charitable organization dedicated to the prevention of brain and spinal cord injuries.” At the site visitors can watch, or download for free, a 26-minute video on preventing hockey-related brain and head injuries with a particular emphasis on injury prevention among kids. Though the site is not being promoted to American viewers it is fully accessible from this side of the border.

With TV ratings for hockey slowly but steadily rising over the last few years it seems odd that no similar effort is being promoted here in the United States. Two of the three main sponsors of ThinkFirst are the shoe company Reebok and CCM, a major manufacturer of hockey equipment – both of which are significant players in their respective markets here in the US (the third sponsor is a Canadian bank). With the increased attention being paid to the dangers of traumatic brain injuries, particularly among young athletes, this would seem to be a charitable niche waiting to be filled here in the States.

From the perspective of an Oregon and Washington brain injury attorney, anything that cuts down on traumatic brain and spinal cord injuries to children has to be welcome. Lawyers are here to help families obtain justice through our court system after tragedy strikes, but it would be far better for everyone if these debilitating, often permanent, injuries to children could be avoided in the first place. Here’s hoping some forward-looking American company partners with the NHL to bring this program to the United States before the next hockey season begins in October.

ThinkFirst Smart Hockey

A Florida court case involving a defective car seat and a resulting severe spinal cord injury to a child can serve as an important reminder of the crucial role our courts play in holding large companies accountable for the damage they can cause in ordinary people’s lives.

As outlined by the American Association for Justice, the case concerns a Florida girl, now age 7, who suffered a severe spinal cord injury when her father’s car was involved in an accident. Unbeknownst to the father his daughter, then only two years old, “had unfastened the clip (on her child seat) before the collision, leaving her restrained only around the lower torso and permitting a lap-belt-only injury to her spinal cord.”

The article notes that attorneys working for the girl’s parents discovered that the car seat’s manufacturer “had received more than 800 complaints about children unfastening the clip and it had subsequently replaced the clip with a two-piece version that children could not unfasten.” Even so, the manufacturer contended this action on its part was related to “convenience” rather than “safety” and moved to have the suit dismissed. After losing that dismissal motion the company settled with the victim’s family for an undisclosed sum.

From the perspective of a Portland personal injury attorney, cases like this are among the strongest reminders possible of the important role our courts play in protecting the rights of accident victims. A severe Oregon spinal cord or brain injury can be a devastating blow to any family, the moreso when, as in this case, it involves injuries to children.

The accountability our courts demand even of the rich and powerful is one of the most cherished aspects of American life. Helping ordinary people argue for – and win – the justice they deserve is one of the most significant, and gratifying, aspects of an Oregon spinal cord injury lawyer’s job.

American Association for Justice: Defective design of child safety seat’s chest clip leads to girl’s paralyzing injuries

The death of a Forest Grove resident in an Oregon explosion near Gaston raises critical safety issues. According to television station KGW, the blast at the Stimson Lumber Company also injured at least two other workers. The incident may fit Oregon’s definition of an industrial accident, depending on what investigators determine to be its precise details.

The station, quoting local fire department officials, reports that the accident took place when “a six-foot-tall hydraulic accumulator machine exploded… as three workers were trying to dismantle it.” The incident also led to other parts of the mill complex being evacuated, KGW notes, “as a safety precaution.” State OSHA officials were reportedly on-site to begin their investigation shortly after the accident occurred.

Complex incidents like this one may fit the definition of an Oregon industrial accident if the equipment involved can be shown to have been defective or if the suggested procedures for operating it offered inadequate safety protections. Oregon explosions and similar industrial accidents often require specialized legal knowledge to litigate, because of the complex – often overlapping – layers of accountability on and off the job site that need to be examined as part of any court proceeding.

An Oregon industrial accident attorney can help loved ones and survivors make their way through this legal thicket, undertaking the often-complex task of carefully examining all of a case’s particulars in an effort to determine the parameters of a genuinely just settlement.

Any time a worker dies on the job the state of Oregon, acting on behalf of all of us as Oregonians, must look carefully at the circumstances involved in an effort to protect workers and other citizens, and to prevent similar tragic deaths in the future. Oregon and Washington industrial accident lawyers are part of this system, helping ensure that irresponsible or negligent companies take responsibility for their actions.

The Oregonian: Three injured after explosion at Stimson Lumber in Gaston

KGW.com: Worker dies in Stimson lumber mill explosion

Legislators in Salem hope to close what has emerged as a significant loophole in Oregon’s year-and-a-half-old distracted driving law. As almost everyone knows by now, talking on a cellphone while behind the wheel is illegal in Oregon unless one is using a hands-free device.

As The Oregonian details, however, many judges are taking a broader view of one particular provision of the 2009 law than its authors intended. The Oregon distracted driving law contains an exception “allowing drivers to go on talking on their handheld cellphone – as long as they are driving for work and ‘acting in the scope’ of their employment,” the paper notes.

The legislators who wrote the law tell The Oregonian their idea was “to make exceptions for police, firefighters and others who truly need to make calls on the move.” As it turns out, however, courts have given that phrase a much wider interpretation. In many places, its effect has been to give a free pass to anyone who simply tells the judge they were making a work-related call. As a consequence, some police officers tell the paper they have stopped even issuing distracted driving citations to anyone who claims when pulled over to have been on the phone for work.

HB 3186, which passed the House by a better than 2-to-1 margin last week, seeks to close the loophole, by making it clear that the talking-while-driving exception is limited public safety and emergency personnel, tow truck drivers, utility crews and “persons engaged in agricultural operations.” If the measure makes it all the way to the governor’s desk it will be a welcome clarification of an essential law.

As a Portland distracted driving attorney my belief has always been that the focus of the law should be on the victims of distracted driving. Oregon’s distracted driving law was always designed to hold those who insist on behaving dangerously to account. Closing loopholes through which dangerous drivers may be slipping is to be welcomed.

The Oregonian: Oregon House passes bill intended to toughen state’s hands-free cellphone law

After a year marked by bad news – fatal crashes; official reports indicating that safety needs to be improved – it is refreshing to encounter a story about Tri-Met that makes you feel good.

According to The Oregonian, a Tri-Met train driver’s quick thinking saved the life of a woman who had fallen onto the tracks last week. What could have turned into a disastrous Portland transportation accident was averted, the paper reports, mainly because train driver Arthur Beardsley “knew the Willow Creek stop in Hillsboro can be ‘a scary area.’” As a result, he was already approaching with caution when a woman fainted in front of his oncoming train.

Trains, as the article notes, can take a long time to stop. Large freight trains can easily travel over a mile after the brakes are applied before they begin to lose momentum. Even light rail cars, like the trains commuters use here in the Portland area, normally take about 600 feet to stop, according to The Oregonian. In this case it was only Beardsley’s unusually slow approach to Willow Creek that averted an otherwise certain tragedy.

I have written on a number of precious occasions that Portland personal injury lawyers are here to help everyone in our community hold those who are reckless and negligent accountable for their actions. Oregon wrongful deaths, medical malpractice, drunk and distracted driving and industrial accidents need not happen. The courts exist to help citizens get the justice they deserve – but even better outcomes come from people and companies exercising due caution in their day-to-day activities, in the hope that all of us do not need to resort to the justice system in the first place.

The Oregonian: Tri-Met operator, knowing he was approaching a ‘scary area,’ hit the brakes just in time to save woman