Oregon Injury Lawyer Blog

August 13, 2017

A Quiet Rule Change that Threatens Oregonians’ Rights

An effort by the Trump administration to roll back an obscure Medicare rule has provoked a loud, and unexpected, backlash according to multiple reports in The Hill, a newspaper that specializes in covering the federal government in general and Congress in particular. The paper reports in June an obscure regulatory body known as the Centers for Medicare and Medicaid Services (CMS) said it intends to repeal a “rule that prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court.”

This is an issue that I have been following for some time both in terms of this specific rule (click here to read my blog from last year when it was originally issued) and in terms of the broader question of arbitration ‘agreements’ that seek to deny ordinary Americans access to our courts when they suffer financial or physical neglect at the hands of a rich or powerful company (an issue I first addressed in 2013).

Thus, it is very heartening to see such a widespread backlash against the administration’s proposed rule changes. According to The Hill, 16 states and the District of Columbia filed formal objections to the policy change when these came due early last week. “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and to seek judicial redress for our claims,” the state attorneys general wrote in objecting to the proposed rule changes, according to The Hill. “This is especially true when consumers are making the difficult decisions regarding the long term care of loved ones. These contractual provisions may be neither voluntary nor readily understandable for most consumers.”

August 9, 2017

Trump Police Comments Raise Fear of Civil Rights Violations

by Matthew D. Kaplan

An almost off-hand remark by President Trump during an address to police officers last week was swiftly denounced by police officials in red and blue states alike. As the Washington Post reports, “some police leaders worried that three sentences uttered by the president… could up-end nearly three decades of fence-mending.”

Speaking to officers gathered on Long Island for an event focused on gang violence, Trump spoke about “roughing up” suspects and said: “When you guys put someone in the car and you’re protecting their head, you know, the way you put their hand over? Like, ‘don’t hit their head’ and they just killed somebody – don’t hit their head. I said, you can take the hand away. Okay?”

Denunciation of the comments came from police departments across the country. Even the department Trump had addressed, in Suffolk County, New York, put out a statement rejecting his suggestion that ignoring the right of people being arrested would be OK in certain circumstances. At the most basic level, an admonition to police to mistreat suspects goes against the presumption of innocence that lies at the base of American law. On a more immediate level it raises fears, as the Post notes, that individual officers will find encouragement in the president’s words, seeing in them a kind of validation for bad, even illegal, behavior.

August 1, 2017

NFL Concussion Study Offers Opportunity to Review Oregon Student Athlete Protections

by Matthew D. Kaplan

A groundbreaking study published last week by the New York Times has reverberated through the sports world. “A neuropathologist has examined the brains of 111 NFL players – and 110 were found to have CTE, the degenerative disease linked to repeated blows to the head,” the paper writes.

A few days later, National Public Radio reported that the NFL was ending a $30 million research partnership with the National Institutes of Health. Citing original reporting by ESPN, NPR said that after almost five years nearly half of the funds the league committed to the study of brain injuries remained unspent “following a bitter dispute in 2015 in which the NFL backed out of a major study that had been awarded to a researcher who had been critical of the League.”

It goes without saying that youth and high school sports are a far cry from the NFL, but with these two stories in the news it is worth revisiting the issue of youth sports and TBI for two reasons. First, anyone playing in the NFL only got there after years of youth, high school and college football. It has long been established that head injuries have a cumulative effect, so it is incumbent on all of us to ask what can be done to minimize these injuries long before young people get to the professional level. Second, and more importantly, whatever one may think of the NFL’s approach and attitude toward concussion issues, professional football players enter each game with the best equipment possible – including helmets built to standards far more exacting than anything a middle or high school student wears onto the field. That, in turn, requires us to look carefully at both the practices and the laws governing youth contact sports to see whether we are doing everything we can to prevent injuries to children.

July 26, 2017

Oregon Parade Death and a Parade Death

by Matthew D. Kaplan

The Associated Press reported earlier this month on a boy who died “after falling off a parade float on his seventh birthday.” The tragic event took place during the Miner’s Jubilee Parade in Baker City. The news agency says the boy “was struck by the rear wheels of a commercial vehicle” after falling from the float.

According to AP the authorities in Baker City are treating the event as an accident. But even if this tragedy was an accident that does not mean that no person or organization bears responsibility for what happened. Indeed, when a child is killed or injured all of us have a special obligation to investigate the circumstances to the fullest possible extent.

From a legal standpoint, this means looking at questions of health and safety in much the same way we might consider any other question of negligence leading to an injury or death. Special attention needs to be paid both to the organization of the parade and to the construction and operation of the float on which the child was riding.

July 18, 2017

Two Supreme Court Decisions Narrow Access to Justice for Ordinary Oregonians

by Matthew D. Kaplan

An important thing to understand about the US Supreme Court is that its rulings can often seem narrow and technical even as they have sweeping repercussions for every American. That was the case with two rulings that were issued late last month, just as the court’s annual term came to an end. In both cases the Court might have appeared to be focused on narrow issues that concern mainly other courts and lawyers when, in fact, it was issuing rulings that will have a profound impact on our justice system in general and on Americans’ ability to seek redress in our courts.

The first case, Ziglar v Abbasi focuses on the arrest and detention of hundreds of Muslim men in the wake of 9/11. Though most of the men were held for immigration violations they were treated as suspected terrorists and, in numerous cases, subjected to unusually harsh interrogations and prison conditions. A group of these men sued the government for damages, citing a 1971 Supreme Court decision that allowed state and local officials to be sued for damages when they violate a person’s constitutional rights. The legal question seemed fairly straightforward: one might assume that if state officials can be sued for violating people’s rights federal officials too can be sued when they do so. By a vote of 4-2, however, the Supreme Court disagreed (two justices recused themselves from the case and the newest justice, Neil Gorsuch, had not yet joined the court when the case was argued).

The important thing to understand is that as a legal precedent effecting ordinary Americans the fact that this case involved egregious rights violations in the aftermath of a terrorist attack is not the point. Using the national security implications of that extreme event as a pretext the court has made it far more difficult for any citizen to sue any employee of the federal government. Put simply: this is not about terrorism and national security, it is about our constitutional right to have access to the courts when a government official abuses his or her power.

July 11, 2017

Beaverton Child’s Injury Spotlights Window Fall Dangers

by Matthew D. Kaplan

The news last week that a 3-year-old Beaverton girl was in critical condition after falling from a 2^nd floor window is the most tragic sort of reminder of the importance of window safety. As I have written on several previous occasions, when children die or are injured in window falls the incidents are especially sad because they are so easily preventable.

According to television station KATU emergency services crews responded to reports of the fall and found that the girl had landed on a concrete surface below the window. She was taken to the Oregon Health and Science University Hospital (OSHU).

This summer, as it has for several years, SafeKids Oregon is promoting a campaign called ‘Stop at 4’ (see link below). The name refers to the maximum distance – 4 inches – that windows should be allowed to open in any place where children are, or even might be, present. The campaign also encourages the installation of safety bars on windows.

June 29, 2017

Bill to Curb Patients Rights Passes US House

by Matthew D. Kaplan

On Wednesday the US House of Representatives passed the misleadingly-named “Protecting Access to Care Act” on a largely party-line vote of 218-210 (all of the ‘yes’ votes came from Republicans; the noes included 191 Democrats and 19 Republicans). There is no indication yet whether the Senate will take up this little-noticed piece of legislation, but it is worth keeping an eye on, because the provisions of the bill could dramatically curtail patients’ rights. Earlier this month the Trump administration issued a statement of support for the bill – signaling that the President will sign the legislation if it ever reaches his desk.

Earlier this week the website HuffPost published a detailed analysis of the bill by a law professor from New York University. According to that article, the legislation would severely limit the “non-economic” damages that could be awarded in medical malpractice suits involving “injuries like permanent disability, mutilation, trauma, loss of a limb, blindness, sexual or reproductive harm, and other types of suffering and pain. HR 1215 would federally-mandate that if you suffer the most severe non-economic injuries, they are worth exactly $250,000 (no matter what the local jury finds).” In addition, the bill would impose an arbitrary time limit of three years on healthcare lawsuits, making it impossible for injured people to claim compensation for problems that emerged only slowly over a longer period of time.

The measure, in other words, would override state law to protect the economic interests of doctors, hospitals, the drug industry, medical device manufacturers and the insurers who cover all of them.

June 27, 2017

Problems at Keizer Day Care Center are Symptoms of Broader Issue

by Matthew D. Kaplan

A recent article in The Oregonian details a distressingly long list of safety and oversight failures at a single daycare center in Keizer leading to a number of injuries to children.

According to the newspaper the Iris Valley Learning Center “amassed one of the worst safety and health records in Oregon over a decade based on sheer volume of state rule violations… The state Office of Child Care tagged Iris Valley with 102 violations from 2007 through 2016.” This included eight instances of broken bones – “the largest number of fractures at any provider during that period.”

It is important to note that the instances cited by the paper are all forms of neglect – lack of proper supervision of children, inadequate staff numbers, an unsanitary kitchen – rather than abuse per se. This is important because while we often focus attention on physical abuse it needs to be understood that child neglect is also a serious offense under Oregon law. Second Degree Child Neglect is a Class A Misdemeanor. As defined in ORS 163.545 it includes any action that results in leaving “the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of such child.” (First Degree Child Neglect – ORS 163.547 – is a felony but is much more narrowly defined and mainly concerns drug offenses that take place in close proximity to children).

June 20, 2017

The Distracted Driving Technology that Could be a Game Changer

by Matthew D. Kaplan

A few weeks ago I wrote about efforts to design a ‘breathalyzer for distracted driving’ – an app that law enforcement officers could use to determine whether a smartphone or other electronic device had been in use in the moments surrounding an auto accident.

Now, according to a Seattle Times story republished in The Oregonian, “anti-distraction software by a tech startup called Cellepathy would automatically go into a restrictive ‘driver mode’ when a phone is within a moving vehicle.”

Technology along these lines has long been a goal of activists looking for ways to reduce or end distracted driving. The challenges are formidable. At the most basic level, how does one make a technology sufficiently sophisticated to distinguish between the driver of a vehicle and passengers (this problem sunk some early ideas, such as using a smartphone’s GPS system to tell when the car is moving)? How does one make it both simple to use and relatively difficult to fool?

June 10, 2017

New Facility May Improve Treatment of Mentally-Ill Inmates

by Matthew D. Kaplan

A recent article in The Oregonian documented efforts by Disability Rights Oregon to convince “the Multnomah County Sheriff’s Office to transfer jail inmates undergoing mental health crises to the city’s new emergency psychiatric care center if needed.” As the article outlines, the Northeast Portland facility recently opened, offering “a long-awaited alternative to having police take people in crisis to regular hospital ERs.”

As the newspaper reports “a no-guns policy and other logistics make the request a tough sell.” What it does not lay out, however, is an especially strong legal argument for using the Unity Center for Behavioral Health: prisoners’ rights.

As I have written in other contexts, one of the most important legal tools for ensuring that people held in custody are treated in a humane way that respects their rights is 42 USC 1983. This allows individuals to sue when the government deprives them of any of the “rights, privileges, or immunities secured by the Constitution and laws.” In plain English: it offers a mechanism for people who have been mistreated by government at any level (local, state, federal) to have their day in court and obtain justice.