Oregon Injury Lawyer Blog

December 7, 2016

Oregon Governor Proclaims December as ‘3D’ Month

In a bid to raise safety awareness this holiday season, Oregon Governor Kate Brown has declared December to be “3D Month”, a term which, according to Bend TV station KTVZ, is shorthand for “Drunk and Drugged Driving Awareness Month.” Or, as the station’s web headline succinctly puts it: “Reminder: Recreational pot legal, DUII is not.”

The article quotes the head of the Governor’s Advisory Committee on DUII noting that “drivers have a responsibility to drive sober and to not use imparing substances… we want to keep people from making a poor choice that harms themselves and others.”

From a legal perspective the key phrase here is “imparing substances.” DUII in Oregon is covered by Chapter 813 of the Oregon Revised Statutes. Section 813.010 defines the offense as operating a vehicle with a blood alcohol level of “0.08 percent or more” or while “under the influence of… a controlled substance or an inhalant or” any combination of those three things. Put another way, from a legal perspective the question is not so much what you have consumed but whether it affects our ability to drive a car or truck. If it does (and pot definitely falls into that category) then it makes you subject to DUII penalties even if alcohol as such is not involved.

November 27, 2016

Oregon Psychiatric Facility Death Raises Numerous Issues

by Matthew D. Kaplan

A story published this week in The Oregonian focuses on the suicide of a teenage boy who was living in a Corvallis residential treatment facility and on accusations that the facility falsified care records in an attempt to evade responsibility for its actions. There are broader issues also raised by the case, however, and I would like to take a few moments to examine both the issues raised by the newspaper and the ones that also merit our attention.

According to The Oregonian the boy, age 15, died last August. A state investigation showed that he was supposed to be closely monitored while in the facility, with staff checking on him every 15 minutes. Though the care center’s records indicated he had slept through the night, a state investigation showed that he had been left alone for 40 minutes at one point that evening despite having “told staff earlier in the evening that he was suicidal and had been bleeding from self-inflicted arm wounds.” The newspaper adds that the investigation turned up other instances in which “patients told regulators they also had gone without scheduled check-ins by the center’s employees.”

The focus of the newspaper story is on the alleged falsification of records and this is obviously a serious issue. If proper, legally required, records are not kept by caregivers and facilities it is impossible for patients to get the treatment they need and extremely difficult for cases of medical malpractice or nursing home abuse and neglect to be proven either while they are unfolding or after the fact. To be clear: this is an extremely important issue and one where it is critical to everyone’s health and well-being that federal, state and local regulators do their jobs.

November 18, 2016

OSHA fine May Not End Workplace Death Case

by Matthew D. Kaplan

A recent article in The Oregonian outlined the details of a $142,000 fine leveled against a Portland excavating company for a fatal job site accident last May.

According to the newspaper a 29-year-old worker died when a trench in which he was working caved-in. Referring to an investigation by the Oregon Occupational Safety and Health Agency the newspaper writes: “The investigation found two employees were working in an improperly shored trench that was about 10 feet deep… the excavation was incorrectly braced because two pieces of shoring were spaced too far apart to handle unstable soil.” Critically, the newspaper reports that “the company’s owner, who was on site, said he was negligent in allowing his employees to work in such a situation. He said he saw that the shoring was set up about 15 feet apart and he knew that it was not set up correctly.”

The fact that the OSHA has acted to impose a fine is important, but it does not mean that the legal consequences surrounding this incident are over. From a civil law perspective the admission by the owner that he knew he was asking his employees to work in unsafe conditions opens up a number of important questions. This case represents a clear violation of the Employment Liability Act (ORS 654.305 and ORS 654.325), a law whose entire purpose is to make sure workers are not exposed to dangerous conditions.

November 5, 2016

Railway Safety Issues Deserve Real Attention

by Matthew D. Kaplan

The fatal crash of a commuter train near New York last month focused many people’s attention on deteriorating infrastructure and the dangers it causes. But closer to home we also have examples here in the Northwest of the problems caused by ageing rail infrastructure and, equally critically, the reluctance of both government and private industry to take the steps necessary to safeguard the public.

As Washington State’s Northwest Public Radio recently outlined an initiative is underway near Spokane to hold Union Pacific and other large railroads responsible for the damage they can do to local communities. According to the radio network, the proposed ballot initiative (which, if accepted, would be voted on at a local election next year) “could prohibit coal and oil companies from transporting their products through the city by rail.” City leaders have been forced to put forward this proposal focusing on the owners of individual rail cars rather than the railroad itself because, according to one City Council member “we also engaged in negotiations with the railroads and they said, ‘you know, we’re just pulling these cars, we don’t own them.”

The problem is that under current law the railroads and the companies for which they haul materials each attempt to shift responsibility for accidents and environmental damage to the other. In addition, the radio network reports, “railroad companies have also argued federal law trumps local regulation anyway.”

October 25, 2016

Lawsuit Spotlights State’s Obligations

by Matthew D. Kaplan

A lawsuit filed last week by Oregon’s ACLU is shining a light on the state’s obligations to provide medical treatment for prisoners, according to a news release from the group and coverage in The Oregonian. Last week the group filed suit on behalf of a transgender woman who is currently an inmate at the Two Rivers Correctional Facility in Umatilla. The ACLU says the prisoner “is being denied essential medical care. The suit… argues that it is cruel and unusual punishment to deny medically-necessary care to prisoners.”

The Oregon Department of Corrections’ own “Health Services” web page acknowledges that “state and federal laws have established that inmates are entitled to health care during incarceration. Health care services available to inmates must be comparable to health care provided in the community in order to meet the state’s legal obligation. This means that all types and levels of health care must be provided in a clinically appropriate manner by properly credentialed professionals in settings equipped and designed for the delivery of health care.” By these parameters health care, legally speaking, has to be considered a civil right where prisoners are concerned. Denial of appropriate care, therefore, can be challenged using 42 US Code 1983 – a key legal text concerning civil rights. 42 USC 1983 allows anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” to sue the person or institution which violated those rights in civil court.

So if we take that acknowledgement by the state DOC as a starting point, the question must be asked: how can the agency defend the conduct alleged in the ACLU lawsuit? Specifically, the group charges that the state has denied its client’s repeated “requests for hormone treatment, despite an official diagnosis of gender dysphoria. The lawsuit also accuses state officials of placing (the plaintiff) in segregation or solitary confinement for weeks and sometimes months at a time,” the newspaper reports. When placed in a Disciplinary Segregation Unit following a suicide attempt earlier this year “staff mocked her and called her a ‘freak’ and other vulgar names,” the suit alleges. A mental health professional who evaluated the woman on behalf of the DOC referred to her repeated requests for essential hormone treatments as “quality of life issues” according to The Oregonian, and repeatedly referred to the prisoner using male pronouns (the 25 year old prisoner has publicly identified as female since the age of 16).

October 19, 2016

The Forest Grove Sexual Abuse Plea Deal and Criminal vs Civil Penalties

by Matthew D. Kaplan

At a moment when presidential politics have led to a national discussion about sexual assault last week’s news of a plea deal in an especially shocking case in Forest Grove was eye-catching. According to a report in The Oregonian the owner of a retirement home in that community received a two-day jail sentence and five years of probation after pleading “guilty in Washington County Court to 11 counts of third-degree sex abuse and one count of attempted third-degree sex abuse. More than two dozen other charges, including first-degree sex abuse, second-degree sex abuse, third-degree sex abuse and first-degree burglary were dropped as part of the plea deal.”

According to the newspaper the accused, a 73-year-old man, routinely groped women under his care and used his position as the home’s owner to press himself on his female employees. The victims ranged in age from their 30s to their 80s. The newspaper adds that the plea agreement was reached with the cooperation of the victims. “Nearly all the women said they wanted to avoid a trial, which would be a lengthy and humiliating process for them,” the newspaper notes, quoting a Washington County District Attorney’s Office spokesperson.

Two legal points stand out here, one shocking and the other offering some relief. The first is the negotiation of the charges down from first-degree sexual assault to third-degree. This is a significant difference. First-Degree sexual assault (ORS 163.427) is a Class B felony, meaning that each count could lead to up to ten years in prison and a $250,000 fine. Third-degree sexual abuse (ORS 163.415) is a Class A misdemeanor, which makes the maximum fine $6250 and the maximum jail time one year. Without wanting to second-guess a criminal prosecution decision that reportedly involved input from the victims, it has to be said that a mere two days in jail and, reportedly, no fine, seems like far less than prosecutors might have gone for, even under the reduced charges.

October 12, 2016

Oregon Jail Death Could Mark Start of a Long Legal Debate

by Matthew D. Kaplan

A short report over the weekend in The Oregonian regarding an inmate death at Multnomah County’s Inverness jail could mark the beginning of a series of lengthy legal questions. According to the newspaper an inmate “was found dead inside a cell Saturday, according to the county sheriff’s office.” The paper adds that the county medical examiner has begun an investigation.

From this seemingly straightforward beginning there is the potential for significant legal claims to develop. Life in prison, or even in a shorter-term facility like a county jail, can often be difficult and harsh. Many Americans do not take issue with this reality. That essentially political view, however, does not change the fact that when the government at any level takes control of every aspect of an individual’s life by placing them in custody it also takes on certain responsibilities. Leaving aside the quite significant fact that people in custody who have not been convicted of a crime (which is a substantial portion of those in custody at any given moment) remain innocent until proven guilty, there is the equally important fact that the state has a duty of care for those in imprisons even after they have been found guilty of a crime.

A key statute that applies to cases like these, and the legal actions for wrongful death that can sometimes emerge from deaths in custody, is 42 United States Code 1983, a short paragraph that “is invoked so frequently that it is often simply referred to as ‘Section 1983’” according to an analysis published in the Santa Clara Law Review.

October 3, 2016

New Government Rules on Nursing Homes are a Victory for Everyone

by Matthew D. Kaplan

The announcement last week that the federal government will bar most nursing homes and other care facilities from forcing clients to sign care contracts requiring them to settle disputes in arbitration is an enormous victory for ordinary Americans – one that deserved more attention than it received in both the national and local media.

As the New York Times noted: “With its decision, the Centers for Medicare and Medicaid Services, an agency under (the Department of) Health and Human Services, has restored a fundamental right of millions of elderly Americans across the country: their day in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term health care facilities in more than two decades.” Because virtually every nursing home and care facility in the country receives funds from either Medicare or Medicaid (and often from both) the rule is, effectively, universal. The rule change was essential to curb the spread of arbitration since a 2015 Supreme Court ruling (DIRECTV v Imburgia) which not only held that arbitration clauses are legal but also threw out state-level bans on the practice.

Obviously a federal law banning forced arbitration clauses can’t be passed in Washington’s present polarized political climate, but with last week’s decision the federal government effectively used the leverage that comes from being the largest single player in our healthcare system to put citizens ahead of corporate profits. The new federal rules effectively overturn the Court ruling in the area of nursing homes and related services.

September 25, 2016

Oregon Rape Charge at Providence St. Vincent Raises Troubling Questions

by Matthew D. Kaplan

The decision by Portland police to charge a 34-year-old nursing assistant with the rape of an 87-year-old nursing home patient is drawing new attention to sexual assault issues in Oregon nursing homes, hospitals and other facilities that care for the elderly.

According to a recent article in The Oregonian, a Portland man “is charged with first-degree rape and first-degree unlawful sexual penetration. He… is being held in the Washington County jail with bail set at $250,000.” The paper adds that the alleged rape was not the first time the suspect had been brought to the attention of police: they received a complaint about him back in June in reference to the assault of a 94-year-old woman at the same facility “but couldn’t substantiate it at the time.” Now, the paper reports, quoting the Washington County Sheriff’s office, the accused could also face charges in that case. Law enforcement authorities tell the paper they believe other victims may also come forward.

The arrested man “was licensed as a certified nursing assistant in February 2015 and has no history of discipline. He graduated from the Caregiver Training Institute in October last year, according to records,” The Oregonian reports.

September 15, 2016

A Prison ‘Industry’ That is Making Everyone Poorer

by Matthew D. Kaplan

According to the Oregon Department of Prisons website our state first experimented with private prisons in the late 1800s. The state penitentiary “was leased to a private company… Since this concept was becoming very popular nationwide, Oregon’s legislature approved the experiment.” It did not last long. “In one day every inmate at the penitentiary escaped. Most walked out the front gate.”

This amusing historical nugget is a reminder that some ideas never quite go away – in this case the idea that private companies are always more efficient and that their need to make a profit will not result in either sloppy work or abuses (the 19^th century version of private prisons made their money mainly by hiring the prisoners out as labor). Today, private prisons are illegal in Oregon, and our state is one of 11 that do not use the private system at all, according to a 2012 report by The Sentencing Project. An announcement by the Obama administration last month that the Federal government will phase out its use of private prisons is also likely to put a dent in the industry.

As a recent article in The New Yorker outlines, however, beyond the full-scale privatization of prisons the growth of all prisons over the last generation along with America’s collective assumption that private services are always superior to public services has led to some shocking arrangements in both government and private-run prisons. These often deny basic civil rights to prisoners with the goal of making money for the government. For example, the magazine notes, “short phone calls from prison can cost up to fifteen dollars, largely because the companies operate as monopolies within prison walls. The private companies also offer state and local authorities a percentage of their revenue, which contributes to the cost of the calls and creates other perverse incentives. Some jails, for instance, have removed in-person family-visitation rooms to make way for ‘video visitation’ terminals, provided by private firms, which can charge as much as thirty dollars for forty minutes of screen time.”