Oregon Injury Lawyer Blog

January 3, 2011

Court Rules for Openness in Toyota Settlements

A ruling late last month by a California judge could hold significant long-term benefits for Oregon accident victims. The judge struck a blow for openness and, in so doing, may make it a bit easier for accident victims across the country to obtain justice when they face off against large corporations.

According to the Los Angeles Times, the judge ruled that Toyota “cannot keep secret the terms of a settlement it made with the family of four people killed in a Lexus accident outside San Diego last year.” The paper reports that the 2009 accident was attributed to “sudden acceleration” by the vehicle. This is, in fact, the accident that touched off the multiple vehicle recalls that caused Toyota so many headaches last year.

Interestingly, both Toyota and the victims’ families had asked that details of their settlement be sealed, arguing that public disclosure could taint any subsequent legal proceedings. The judge rejected that claim, writing that “in this case, the right to know overpowers the concerns raised by the plaintiffs and the defendants.” A Toyota spokesman described the carmaker as “disappointed” in the ruling, but did not say whether the company will appeal, according to the newspaper.

December 30, 2010

New Study Raises Wrongful Death and Medical Malpractice Questions Concerning Strokes

by Matthew D. Kaplan

A medical journal study released this month offers alarming evidence about the long-term prospects for stroke victims and raises broader questions about the way hospitals treat them. The study, originally published in the medical journal Stroke, and reported on by a number of mainstream media outlets, found that, as summarized by Bloomberg Businessweek: “within a year of having a stroke, almost two-thirds of Medicare patients die or wind up back in the hospital.”

According to Businessweek, the study looked at data covering over 91,000 Medicare patients at 625 hospitals nationwide. It covered the years 2003 to 2006 and found no change in the rates of rehospitalization or death over that period. One caveat, noted by outside experts interviewed by the magazine, is that a study like this – one focusing on older patients – can have a difficult time controlling for other medical issues the patients may be experiencing.

The study uncovered a death rate of 14.1 percent within the first 30 days after a stroke and 31.1 percent within a year. More alarmingly, “61.9 percent of stroke patients were readmitted to hospital or died within a year of their stroke,” Businessweek notes.

December 28, 2010

AT&T Documentary Spotlights Distracted Driving

by Matthew D. Kaplan

As we head into the New Year’s Eve weekend one of the nation’s largest cellphone companies is taking a proactive stance against distracted driving. AT&T has released an 11-minute video documentary, entitled “The Last Text,” to raise awareness of the dangers of texting behind the wheel as we head into the final weekend of the holiday season.

The video can be viewed at both of the source links below, as well as on YouTube. It is part of a broader anti-texting publicity campaign sponsored by AT&T under the umbrella title “It Can Wait.” The documentary “features stories about people whose lives were adversely affected by texting behind the wheel,” according to a report in USA Today.

Oregon, of course, has had a distracted driving law in place for almost exactly one year. That law makes texting by drivers illegal under pretty much any circumstances but, as I noted in a post just last week evading the ban is relatively easy and the fine for getting caught ($90) is relatively low. The Oregon distracted driving law is still too new for any significant body of data to have been gathered concerning its enforcement.

December 27, 2010

Texas Reforms Undermine Patient’s Rights – Weaken Medical Malpractice Remedies

by Matthew D. Kaplan

In looking at ways to contain the ever-rising cost of health care in America tort reform – a fancy way of saying ‘making it harder to sue bad doctors’ – is often cited as a quick fix. A recent article in the New York Times, however, underlines in the most harrowing ways possible the consequences that can arise when a legislature lets the urge to cut doctors costs outrun its concern for patients rights.

As the article details, in 2003 Texas changed its tort laws with the goal of making it “more difficult for patients to win damages in any health care setting, but especially emergency rooms.” The state’s big idea was to cap damage awards with the goal of bringing down doctors’ insurance rates: noneconomic damages in Texas are now limited to $250,000 from each health care provider and $750,000 overall.

The legislature also, however, sought to provide extra protection to emergency room doctors, on the grounds that they must often make split-second life-or-death decisions and, thus, should be insulated from frivolous lawsuits. It is a laudable goal in theory: reform that makes life easier for the hardest-pressed doctors and, in the process, lowers their insurance rates. To achieve this, however, the legislature used sweeping language, declaring that emergency room doctors cannot be sued at all unless a victim can show the doctor acted with “willful and wanton negligence”. In practice, as the Times notes, that standard has proven virtually impossible to meet.

December 24, 2010

Can Oregon Find a Model for TBI Legislation in New Jersey?

by Matthew D. Kaplan

Earlier this month New Jersey Governor Chris Christie signed wide-ranging legislation designed to protect student-athletes in his state. As reported by the website Safe Kids New Jersey, the bill will require the state’s Department of Education “to develop an interscholastic athletic head injury safety training program to be completed by school physicians, coaches and athletic trainers” in both public and private schools.

The website goes on to note that the New Jersey program will include teaching school personnel how to recognize “symptoms of head and neck injuries,” how to judge when an athlete should be allowed to return to the field and when someone requires further treatment, including hospitalization. As the organization notes, “currently, there is no uniform method of handling suspected concussions in interscholastic sports.”

As I have noted in previous posts looking at both football and hockey, concern over concussions and other traumatic brain injuries at all levels of competition is rising here in Oregon and nationwide. Parents as well as coaches and trainers are becoming more and more aware of the dangers improperly diagnosed or treated head injuries can pose, especially to younger athletes. Below you’ll find a link to an especially helpful checklist of questions every parent should know to ask when talking to a doctor treating a child for a suspected head injury (the list is compiled by the federal government’s National Institutes of Health).

December 22, 2010

Portland Pedestrian Death Sparks Barbur Blvd Vigil

by Matthew D. Kaplan

A crowd turned out on Barbur Boulevard last night to remember Angela Burke, according to an account posted on the Bike Portland website. Burke, 26, was killed last week by what The Oregonian, quoting police and witnesses, described as a speeding car (reportedly doing 75 in a 35 mph zone) traveling barely on the edge of control.

The Oregonian reports that the driver who allegedly struck Burke was arraigned last Friday “on allegations of negligent homicide and driving under the influence of intoxicants.” He was reported to have significant amounts of both alcohol and marijuana in his system at the time of his arrest, shortly after the Portland fatal pedestrian car crash that killed Burke. The suspect has another court date scheduled later this week.

As both the newspaper and Bike Portland noted, the stretch of Barbur where Burke died is notoriously difficult for Oregon pedestrians and cyclists to cross safely, especially at rush hour. Even those going to last night’s vigil were urged to take safety precautions.

December 19, 2010

Distracted Driving Death Emphasizes the Importance of Enforcement

by Matthew D. Kaplan

A terrible story from California this week reminds all of us that distracted driving laws – be they here in Oregon or elsewhere – cannot, by themselves, stop some people from behaving destructively. To be effective, the laws require enforcement by police and the accountability provided by courts.

According to a report by the Los Angeles TV station KTLA, a 20-year-old Glendale woman now faces vehicular manslaughter charges “after allegedly running a stop sign and killing an elderly pedestrian while texting on her cell-phone.” The station reports that the pedestrian, an 80-year-old man, was thrown into the air and died of the head trauma suffered as he landed on the sidewalk. The accident took place in September. Police arrested the driver a few days ago after concluding a three-month investigation.

California’s laws on cellphone use by drivers are similar to Oregon’s (in some respects they are actually stronger: California explicitly bans cellphone use by school bus drivers in all circumstances, a provision the Oregon distracted driving law omits). Like California, the Oregon distracted driving law also allows for “primary” enforcement, meaning that offenders can be pulled over solely for breaking the ban on using a handheld phone or texting while driving. The question we have to ask is how often this actually happens (texting, in particular, is relatively easy to hide by simply holding the phone low enough that it is difficult or impossible for an officer glancing through the driver’s window to see).

December 17, 2010

Portland Traffic Injury Lawsuit Settled for Over $338,000 by Portland Police Department

by Matthew D. Kaplan

The City of Portland is scheduled, this week, to pay out $338,477 as part of the settlement of a lawsuit filed by an 80-year-old woman struck by a police car while crossing the street. According to an article in The Oregonian, the accident took place when the officer driving the patrol car looked away from the road to check his onboard mobile computer for messages from the police dispatcher.

The accident is a reminder of one of the loopholes in the much-talked-about Oregon distracted driving law, which went into effect nearly a year ago: the blanket exemption for on-duty law enforcement and public safety personnel. Obviously police, firefighters, EMTs and other people who protect our lives deserve our respect and support. Equally obviously, their use of computers and other on-board electronic equipment designed to help them do their jobs is a far cry from a commuter texting in downtown traffic.

That said, the suit the city has just settled is a reminder that the on-board computers that are now standard in police cars and other public service vehicles are far more complex – and potentially far more distracting – than the hand-held two-way radios of old. As The Oregonian rightly notes, “The case points to a growing tension: While police are expected to use increasing technology in the field t obtain information quicker, the distractions also have the potential to cause accidents.”

December 15, 2010

Government Study Details Shocking Increase in Hospitalizations for Dog Bites

by Matthew D. Kaplan

A newly released government study examining hospitalizations resulting from dog bites lays out some attention-grabbing data: between 1993 and 2008 the number of people hospitalized nationwide as a result of dog bites nearly doubled. Reporting the data the New York Times noted that this “increase vastly exceeded population growth, and pet ownership increased only slightly during the same period.” The study was conducted by the Agency for Healthcare Research and Quality, a unit of the Department of Health and Human Services.

As an AHRQ news release notes, those under the age of 5 or over 65 are in the greatest danger for dog bites. The most common form of hospital treatment required is for “skin and underlying tissue infection”, though in a small number of cases much more serious conditions – such as multiple fractures or blood poisoning – can develop following a serious dog attack.

The study notes that around 4.5 million people are bitten by dogs each year and that only a fraction of these incidents require hospitalization. Still, as the study’s author, Dr. Anne Elixhauser, told the Times, referencing the huge increase in injuries serious enough to require hospitalization: “It’s really kind of frightening, and, unfortunately, we’re at a loss to explain it.”

December 12, 2010

Families Face Difficult Choices in Wake of Mine Disaster

by Matthew D. Kaplan

Nine months after an explosion in a West Virginia coal mine left 29 mine worker dead, the Wall Street Journal reports that many families torn apart by the tragedy remain unsure of their next legal steps forward. Their stories contain many lessons for Oregon families thrown into similarly tragic circumstances as the result of an Oregon wrongful death or industrial accident.

As the paper reports, within days of the mine explosion the board of Massey Energy Company, one of the largest and most powerful companies in West Virginia, offered each family a settlement: $3 million in compensation for the death, lost wages and lost companionship of their loved-one, in exchange for giving up any right to sue the company. The Journal reports that, at present, only seven families have agreed to the company’s settlement, and that “in at least two cases family members are at odds and plan to let a court decide which path they should take.”

For the families the choice is a painful one. As the Journal quotes one victim’s father, himself a miner, saying: “I don’t think it’s justifiable that they want to put a dollar sign on my boy.” As the article notes, the families of workers involved in other industrial accidents often face similarly agonizing choices.