Oregon Injury Lawyer Blog

October 25, 2016

Lawsuit Spotlights State’s Obligations

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.”

September 2, 2016

Avoid Fatal Oregon Car Crashes This Holiday Weekend

by Matthew D. Kaplan

As we head into another long holiday weekend this is a good moment to remember the importance of road and traffic safety. This year caution is especially important because 2016 is already shaping up as an unusually deadly year both here in Oregon and nationwide.

As a recent article in The Columbian noted, “traffic fatalities were up 9 percent in the first six months of this year compared with the same period last year.” More alarmingly, however, Oregon was second in the nation (trailing only Vermont) in the extent to which traffic deaths have increased since 2014. Two years ago the state recorded 128 traffic fatalities during the first half of the year. This year the figure was 217 – a stunning 70 percent increase. Those numbers are all the more worrying when they are combined with the just-released estimate from the National Safety Council that some 438 people will lose their lives in traffic accidents nationwide over the holiday weekend (defined as 6pm local time on Friday through 11:59pm on Monday). In addition the Council estimates that the holiday period will see 50,300 people injured seriously enough that they will need to consult a doctor or another medical professional. Historically Labor Day sees more traffic accidents than most other holiday periods, the council’s news release notes.

There are, of course, many causes for traffic deaths, but on weekends like Labor Day attention inevitably focuses on drunk driving. A news release from the Oregon State Police warns motorists both to expect “heavy traffic volumes” and to “get a designated driver (plan ahead) if you plan on consuming intoxicating substances.”

August 29, 2016

Back-to-School in Portland Puts Safety Back in Focus

by Matthew D. Kaplan

Today is back to school day here in Portland and that means that in many neighborhoods the streets and sidewalks are going to filled with kids headed to school in the morning and home or to after-school activities each afternoon. Coming one week after a 15-year-old was killed while crossing a city street this is a time to reflect on what we can all do to help keep kids safe.

According to a report by TV station KATU, the fatal crosswalk accident took place earlier this month at the corner of Southeast Hawthorne and 43^rd. The 15-year-old girl was hit by a 20-year-old driver who “was passing other cars, reaching upwards of 60 mph” before the fatal accident. The girl’s friends and family came together last Friday for a memorial bike ride in her honor that began on Salmon Street, stopped at City Hall and ended at the accident site. “The protestors, specifically, have taken issue with Vision Zero, Portland’s initiative to reduce and eventually eliminate traffic deaths,” KATU wrote about the memorial ride. “Critics argue the initiative hasn’t done much except outline a goal.”

With the accident freshly in mind The Oregonian offered some useful reminders concerning back-to-school safety. The newspaper notes that there are no statewide regulations requiring school zones to be identified in a consistent manner. That creates a special responsibility for drivers to be aware of their surroundings, since it isn’t always immediately clear that one is around a school, especially when in an unfamiliar neighborhood or city. The paper notes that only 30 percent of kids arrive at school in a family car and 22 percent ride a school bus. That leaves about one-third of all students walking to school while another 10 percent ride bikes.

August 18, 2016

As Portland Schools Prepare to Open, New Lead Concerns Arise

by Matthew D. Kaplan

With the first day of school here in Portland now less than two weeks away this is a good time to focus our attention once again on the issue of lead in school drinking water. As I wrote in a blog last May, the issue emerged with special urgency as the previous school year drew to a close with the citywide scandal in Flint, Michigan drawing national attention to lead poisoning issues nationwide.

Unfortunately if local and national media coverage are anything to go by the answer to the question: ‘Have the Portland schools used the summer months to fix the problem?’ is: hard to say; it isn’t clear. An article published in The Oregonian just this week focused on similar problems in Beaverton – indicating that the problem is not confined to Oregon’s largest city, but with the Portland Schools still trying to finalize selection of an interim superintendent attention appears to have drifted away from the issue of lead in the school system’s drinking water.

As a report last week in The Oregonian detailed, the Portland Public Schools system’s record is not good. “Lead-reducing filters cost about $100 and are proven by independent laboratories to reduce lead to below 10 parts per billion. The district used filters that in 2008 cost $12.87 apiece.” A 2007 plan to install filters directly on drinking fountains went awry when it was discovered that the contractor used the wrong filters. A 2011 attempt using a different company led to filters that were supposed to last seven months failing after only 12 days.

August 12, 2016

Boy’s Death Puts Amusement Parks Back in the Spotlight

by Matthew D. Kaplan

Two months ago I wrote about the legal issues surrounding traveling carnivals and the fact that in many parts of the country they receive far fewer safety inspections than one might think. The death last week of a 10-year-old boy who was riding what is billed as the world’s largest waterslide, has brought these issues sharply into focus with new attention being paid to fixed-location rides in theme parks, and how they differ, in regulatory terms, from traveling carnivals. The 168-foot-tall waterslide where this month’s tragedy occurred is located at an amusement park near Kansas City, Kansas.

One might expect that large rides designed to induce an adrenaline rush through speed and danger would receive more regular and more careful attention than a traveling show: they offer even greater potential danger (because of the heights and speeds involved) yet are far easier to inspect (since they are not constantly moving from town to town). As the reporting since last week’s tragedy has shown, however, that assumption is badly misplaced.

The Kansas City Star reports that the “responsibility for inspecting Schlitterbahn water park rests primarily with its owners, not any state or federal agency.” The newspaper added that the water slide where the boy died “had not been inspected by the state since it opened two years ago, government records show.” More tellingly, the paper reports that a Kansas law governing amusement park rides requires annual inspections but allows these to be conducted by private-sector inspectors hired by the ride’s owners. The state can audit the inspection records, but is prevented by law from doing so more than twice every six months. According to the Star there have been no state inspections of the waterslide where the boy died in the two years since the ride opened.