Articles Posted in Personal Injury

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National attention has been focused this week on a Massachusetts teenager convicted on charges of motor vehicle homicide in a case related to distracted driving. The teenager maintained his innocence, claiming he was distracted by worries about his homework load but not by his phone, according to a report by ABC News.

Prosecutors, however, used the 18-year-old’s phone records to prove that he had been sending and receiving text messages moments before his car swerved across the center line, striking an oncoming pick-up truck driven by a “55-year-old father of three.”

If we look at how this case might have played out under the laws in place here in Oregon several noteworthy things spring to mind. The Massachusetts case was a criminal trial. Though there are no reports of alcohol being involved in the crash, here in Oregon a civil case stemming from an accident like this would be similar to a DUII action. Oregon law would allow victims and their families to file claims for medical bills and lost wages and for the loss of the society and companionship of the deceased.

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Last month’s death of a toddler in Boring, Oregon, in Clackamas County, highlights in the most tragic way possible the importance of both safety awareness when adults are operating potentially dangerous equipment around children, and the need for manufacturers to consider safety in the design of their products.

According to The Oregonian, an 18-month-old girl died last month in Boring “when her father… accidently ran over the girl as he was parking his tractor.” The injured Oregon child was evacuated by helicopter to Legacy Emanuel Medical Center but died a short time later.

According to the newspaper “police are not pursuing criminal charges against the father.” This horrific tragedy, however, contains several important lessons for us all. First, and most importantly, it is a reminder of how crucial it is for all adults to be aware of their environment at all times, but especially when operating machinery that has the potential to kill or injure a child. Farm equipment and lawnmowers spring immediately to mind when considering these issues – but they apply to many other household goods as well. There have been instances over the years of small children getting caught in washing machines or dryers. Refrigerators, especially older ones that may no longer be operational, also pose significant risks.

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A few weeks ago I posted an item marking National Window Safety Week. This weekend brought a sad reminder of why this issue is so important. As The Oregonian reports, citing Tualatin Valley first responders, “a two-year-old Tigard girl was taken to an area hospital Saturday night after she fell from a second-story window at her home.”

The newspaper reports that the girl was conscious when found by emergency services personnel, but offers no other updates on her condition or the nature and extent of her injuries. The injured Oregon child was transported by ambulance to a local hospital, the paper notes.

In a further reminder of the importance of this issue – and why all adults need to be aware of open windows, or windows with inadequate screens – the newspaper goes on to note that “a 3-year-old Clackamas girl broke her elbow” in a similar recent fall. It adds that experts say 70 percent of all injuries to children from window falls happen between noon and early evening, when warm weather is apt to draw children closer to open windows.

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The latest newsletter from Oregon’s Department of Transportation offers a timely reminder now that spring is here: “Warmer weather and longer days naturally bring out more walkers,” it notes. “It is each individual’s responsibility to be safe – on foot or behind the wheel.”

The agency offers a dual reminder. Drivers should be aware that more people will be walking (and, though the release does not mention it, biking) with the arrival of spring and summer. That fact requires special vigilance on the part of drivers. Pedestrians, however, also need to be reminded responsibility is, so to speak, a two-way street. Situational awareness can save your life.

According to the ODOT “as of April 11, 20 pedestrians have died in vehicle related crashes” across Oregon. That number represents a 25% increase in Oregon pedestrian car crashes compared to the same time period last year. The statistic is particularly striking since, as the newsletter notes, “overall Oregon is down slightly in vehicle-related fatalities for 2012 (74 deaths so far compared to 76 at this time in 2011).”

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The revelation by The Oregonian last week that Oregon’s Occupational Safety and Health Agency has levied over $26,000 in fines against Precision Castparts was a reminder of the importance of Oregon workplace safety, and of the need for both regulatory and legal vigilance as we all struggle to prevent Oregon industrial accidents.

According to the newspaper, the company was cited for “32 violations at its large parts campus in Milwaukie and Southeast Portland, raising significant safety concerns for the third time since 2008.” Citing an Oregon OSHA spokeswoman, the paper notes that some of the violations “were repeats.” The overall list of infractions focused mainly on “cleaning operations in the two plants.” The company manufacturers parts for airplane engines and industrial gas turbines. It also does work for the military.

It is good to read that none of the safety violations cited by OSHA were deemed to be “willful” on the company’s part – the most serious category. Still, the newspaper reports, “28 were serious, with nine having the potential to cause death.”

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An opinion column published in Eugene’s Register-Guard newspaper earlier this month raises a number of important questions about a staple of agricultural life: aerial spraying. While crop dusting is viewed as an essential component of agriculture by many farmers, it has its detractors as well (the op-ed’s author is identified as a “farmer and forestland owner”) and there is no question that without proper safeguards and appropriate caution by pilots the practice may lead to Oregon wrongful death or to less severe – but nonetheless serious – medical consequences.

The op-ed criticizes the state bodies charged with regulating aerial spraying for what the author calls their “utter failure” to protect the public. Its harshest criticism, however, is reserved for Oregon regulations and legal opinions that leave those involved in aerial spraying “immune from liability for off-target drift, unless the poison causes organ failure or death.”

Clearly such a development, leading to a Eugene or Salem wrongful death, would be the most serious consequence imaginable. This is not, however, merely a health issue. Issues of commerce and people’s livelihoods are also involved. For example, with the growing popularity of organic products, the drift of pesticides from one farmer’s land to another has become a serious issue being addressed by legislatures in many parts of the country. Obviously the possibility of drift is far greater when the pesticide is applied from the air. Leaving aside entirely any potential health concerns, many organic farmers around the country fear the loss of high-value crops should someone else’s ill-applied pesticide drift across onto their land.

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A fatal accident earlier this month at an Eastern Oregon railroad crossing where collisions involving trains and vehicles have occurred in the past raises serious questions about corporate responsibility and road/rail safety.

According to Oregon Public Broadcasting (citing an article that originally appeared in the East Oregonian), a 63-year-old county worker died earlier this month “when a train struck a road grader on Canal Road south of Hermiston” in the Eastern part of the state. The worker was using the grader to spread gravel along one side of the tracks at the time of the accident. According to OPB “the train dragged the grader about 100 feet before it stopped.” The grader operator died at the scene of the Oregon train and car accident.

What makes this tragedy especially noteworthy are facts indicating it was ultimately preventable. As the article explains, at the crossing in question “motorists cannot see trains coming from the west until they emerge around a nearby curve. The crossing is uncontrolled, meaning it does not have traffic control arms.”

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Earlier this month HBO launched a new documentary, Hot Coffee, that is designed to challenge entrenched stereotypes concerning our legal system and to remind all Americans of an important, but often overlooked, constitutional right: the trial by jury.

The film takes its title from the famous 1990s personal injury lawsuit involving an elderly woman who suffered a serious burn injury after spilling a cup of McDonalds coffee. As the filmmakers point out, this case became the “poster child” for frivolous lawsuits. The point of the movie is not, however, to demonstrate that the facts of this and several other high profile cases were different than was widely reported in the media (though they are, and the film does make that point strongly).

Instead, it focuses on a broader and even more important issue: the lengths to which large and powerful corporations will go to keep cases involving their negligence out of our courts and away from juries. Our Seventh Amendment guarantee of a trial by jury is one of the most fundamental rights we enjoy as Americans. Yet, as Hot Coffee demonstrates, that right has been under attack for a generation or more. Companies make getting to court difficult and winning even harder.

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The federal government’s Food and Drug Administration announced recently that Beaverton-based King International has agreed to recall its ShoulderFlex Massager. The Oregon product recall was ordered after evidence emerged that ShoulderFlex use can lead to serious injuries or even a product liability-related Oregon wrongful death.

“One death and one near-strangulation have been reported after a necklace and piece of clothing became caught in a rotating component of the device. In other cases the FDA says people’s hair became caught in the ShoulderFlex,” Portland television station KATU reports.

The station notes that all 12,000 of the massagers the company has sold nationwide since 2003 are being recalled. It adds that efforts to obtain a comment from the Beaverton-based company were unsuccessful.

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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).

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