In this Blog category you will find articles about your rights if you are involved in an accident that results in injury and personal losses . Personal Injury suits and insurance claims may require the help of an attorney. A good lawyer can protect your rights under the law.
Following dozens of reports of devices that have combusted, over-heated, or caught fire, the FDA has finally announced that it will take action to address e-cigarette safety concerns.
E-cigarettes were first introduced into the market in 2007, and have been gaining in popularity as an alternative to regular cigarette smoking. An e-cigarette is an electrical device with a cartridge or tank where liquid nicotine is stored, an atomizer which is the heating element, and a lithium-ion battery.
According to the Associated Press, 66 e-cigarette explosions were identified by the Food and Drug Administration (FDA) in 2015 and early 2016. Last year the FDA announced that it would begin to require makers of e-cigarettes to submit their devices and ingredients for review. The agency recently announced that it will conduct a two-day public meeting this year in April, hosting scientific and medical experts, manufacturers, distributors, retailers, government agencies, academic researchers and public health organizations to “gather information and stimulate discussion” about e-cigarette battery safety concerns.
The U. S. Fire Administration (USFA) found 25 e-cigarette injuries between 2009 and 2014, and noted in its report that the shape and construction of e-cigarettes can make them more likely than other products with lithium-ion batteries to behave like “flaming rockets” when a battery fails. While damage in most cases of exploding cigarettes is relatively local, explosions can sometimes spread to fire and create damage and injury to people and places nearby. With faulty batteries and negligent use, some e-cigarettes have exploded in user’s hands, pockets and mouth, resulting in burns.
“It’s literally an explosion, a super-hot explosion,” said Dr. Anne Wagner of the University of Colorado Hospital (UCH) Burn Center, where they treated six people injured by e-cigarettes in just the first three months of 2016. “We’re seeing deep third-degree burns and almost all of them require skin grafts and these grafts leave a significant scar.”
“We initially thought this was a rare event, but this is increasing in frequency,” said Dr. Elisha Brownson, a trauma and burn critical-care fellow at Harborview Medical Center in Seattle. The burn unit at Harborview in 2015 reported treating one e-cigarette-related injury a month. “We’re seeing significant tissue injury as well as damage to the mouth or the hands and the tendons,” Dr. Brownson said. “It basically combines a flame burn and a
As the month of December wanes we quickly approach another fireworks holiday. Fireworks are used around the world to celebrate everything from heritage to Christmas, but in the U.S. we eagerly await Independence day and December 31st. New Year’s Eve celebrations around the world are filled with plenty of festive gunpowder and enchanting displays of light. When the clock strikes twelve, it is customary to light up fireworks to bid the current year farewell and welcome the next one. In Portland there are strict laws about what fireworks you can use to celebrate.
Portland Fireworks Guide
The National Council on Fireworks Safety estimates that there are over 9,000 fireworks-related injuries in any given year. Fireworks can not only injure the people who use them, they often start wildfires and can even destroy property if they are shot off too closely to residential and commercial buildings. In addition, pets and veterans suffering from PTSD are greatly sensitive to their sounds, which are typically stretched out over the course of a week during the Fourth of July. Since 1951, Oregon has banned consumer use of every type of firework that travels through the air.
For safety and environmental reasons, the State of Oregon prohibits (and enforces the prohibition of) fireworks that are deemed “fun” by die-hard fanatics. Anything that explodes or travels more than six feet horizontally or over a foot in the air vertically is prohibited. The possession and sale of fireworks that are either uncontrollable or unpredictable, or both, despite meeting the other accepted requirements, are also prohibited. This includes popular favorites like bottle rockets, firecrackers (including Crazy Jacks or Jumping Jacks), mortars, missile rockets, and Roman candles. Such fireworks, though festive and entertaining, can cause severe bodily injuries even to bystanders.
What is allowed in Oregon? Oregon is one of a handful of states that allows consumer fireworks of the non-aerial variety, dubbed “safe and sane” fireworks. Those that don’t fly up into the air and have the potential to do much harm are good to go. Sparklers, ground spinners, cone and base fountains, wheels, and hand-held candle fountains are all popular types of firewo
rks permitted in Portland.
The Washington Loophole
Since Oregon banned most types of fireworks it has become a tradition for some Oregonians to travel across the I-5 bridge to purchase “illegal” fireworks that are completely legal in Washington and bring
Following the fiery derailment of a Union Pacific train hauling crude through the Columbia River Gorge in June 2016 and discovery of more than 800 potential safety violations across its network, Union Pacific has agreed to more thorough inspections and maintenance improvements along its 32,000 miles of track across 23 states.
The June derailment that occurred along a curve in the tracks near Mosier, Oregon and sparked a fire that burned for 14 hours, forcing evacuation of nearby residents, was caused by a series of broken bolts that allowed the rails to move too far apart. Fortunately, no one was injured. After a two year examination of tracks across the U.S. used to haul crude, Federal Railroad Administration (FRA) officials reported 800 safety violations against Union Pacific, the nation’s largest freight railroad. In the case of the Mosier accident, Union Pacific had not been following its own voluntary inspection procedures to ensure that the track was safe. Federal enforcement actions against the company have not been finalized.
Union Pacific Signs Compliance Agreement with FRA
Union Pacific has now signed a compliance agreement with safety measures that apply to all track used to haul oil and other hazardous liquids, explosives, radioactive materials and poisonous gases. The railroad must keep an inventory of all curves in the track that are three degrees or greater across its network and perform walking inspections every 120 days on tracks that have the type of bolts involved in the Mosier accident. Inspections must occur every 30 days in the part of the network that includes the Mosier area. Federal Railroad Administrator Sarah Feinberg said the agreement raises the bar on safety, requiring Union Pacific to go “above and beyond existing regulations.”
USDOT Assesses Penalties for Oil Train Derailments
The oil industry relies on trains due to limited pipeline capacity in the oil patch of the Northern Plains and the oil sands region of western Canada. Trains must travel through more than 400 counties across the U.S. to reach refineries on the West, East and Gulf coast. According to Associated Press analysis of accident records, within the past decade 27 oil trains have been involved in major derailments, fires or oil spills in the United States and Canada. The U.S. Department of Transportation (USDOT) has assessed more than $15 million in civil penalties against the U.S. railroad industry this year for
One woman was killed and over 100 people were injured when a commuter train plowed through the barrier at the end of the tracks and crashed into a wall in Hoboken terminal September 29, 2016. A train is supposed to come to a stop about 10-20 feet in front of the bumper at a speed of 10 miles per hour. The Hoboken train that crashed was traveling twice that speed when it jumped over the bumper and onto the concourse.
There Was Enough Blame to Go Around
The engineer of the train that crashed was found to have the dangerous fatigue-inducing disorder sleep apnea, which caused him to fall asleep at the controls. The Federal Railroad Administration on December 2, 2016 then issued a safety advisory calling for mandatory sleep apnea screening and treatment for all railroad engineers, something it first recommended in 2004. On December 1, 2016, the engineer sued Metro-North for negligence, blaming the railroad for failing to install the Positive Train Control system that would have stopped the train when he fell asleep.
Positive Train Control Would Have Prevented the Disaster
The Federal Railroad Administration (FRA) cited lack of state investment in new technology as the primary reason for crashes. On Nov. 28, 2016 the agency released data showing slow progress installing Positive Train Control technology, which prevents train speeding.
Positive Train Control (PTC) is a GPS-based safety technology that monitors and controls train movement caused by human error, and can bring a train to a safe stop in the event of a disaster. PTC communicates through a train’s onboard computer visual and audible information to train crew members when the train needs to be slowed or stopped.
That information includes:
- The status of approaching signals
- The position of approaching switches
- Speed limits at approaching curves and other speed-reducing locations
- Speed restrictions at approaching crossings
- Speed restriction at work areas near tracks
PTC is capable of preventing train-to-train collisions, over-speeding derailments, and train movement caused by switches left in the wrong position. If the engineer does not respond to the audible warning and screen display, the onboard computer will activate the brakes and safely stop the train.
Politics and Funding Delays Train Safety Technology
Positive Train Control has been on the National Transportation Safety Board’s list of most wanted safety innovations since the 1990s. In 2008, Congress passed a law requiring all railroads to install
While state law requires cars to stop for pedestrians in a crosswalk, marked crosswalks have shown time and again to be more dangerous than unmarked crosswalks.
In 2006 a pedestrian in Millbrae, California suffered extensive brain damage after being struck by a passing car while she was in a marked crosswalk at an intersection without a traffic signal. The area where the pedestrian was struck has six lanes of traffic and a raised median and sees an average of more than 25,000 vehicles a day. Within a ten year period after the crash, with no safety improvements added to the intersection, four other pedestrians were killed at the same marked crosswalk.
USDOT Study Compares Safety of Marked vs Unmarked Crosswalks
Pedestrians account for only three percent of car accidents, but 22 percent of accident deaths. In a 2005 study to determine the safety of marked crosswalks, the United States Department of Transportation (USDOT), Federal Highway Administration analyzed 5 years of pedestrian crashes at 1,000 marked crosswalks and 1,000 unmarked comparison sites, collecting date on traffic volume, pedestrian exposure, number of lanes, median type, speed limit, and other site variables. All sites in the study had no traffic signal or stop sign on the approaches.
Study Concludes Marked Crosswalk Alone More Dangerous Than If Unmarked
The study revealed that, on roadways with four or more lanes with traffic volumes above about 12,000 vehicles per day, having a marked crosswalk alone (without other improvements) was associated with a higher pedestrian crash rate compared to an unmarked crosswalk. The study also noted that pedestrians who assume cars will see the crosswalk and stop for them may not be watchful while crossing. The study found that in marked crosswalks without streetlights, pedestrians are 2-3 times more likely to be hit by a car, and recommended other improvements such as adding traffic signals with pedestrian signals, providing raised medians, and speed-reducing measures. The study concluded that intersections should have marked crosswalks only in low-trafficked areas and only when accompanied by street lights and other improvements.
Portland Installs Flashing Beacon Crosswalks
In 2014, Portland, Oregon began installing Flashing Beacon Crosswalks as an affordable and effective method for increasing visibility on busy streets, especially those without sidewalks and adequate lighting. A pedestrian, preparing to cross, pushes a signal button to activate one or more rectangular
Filing an injury claim against the State of Oregon can be a challenge. Even if your claim is successful, if you have been injured in an accident in a state owned building or suffer harm due to the actions of a state employee acting in the scope of his or her duties, your compensation may be limited.
As with cases involving the Federal Government, the Oregon State Government is entitled to what is known as “sovereign immunity” regarding matters of liability. Many of our laws are derived from British Common Law. Historically, under the doctrine of “sovereign immunity,” you were not permitted to sue the king. In modern times, there is a general rule that you cannot sue the government, unless the government says you can, and every state has passed its own set of laws (referred to as a “Tort Claims Act”).
Liability Limits under the Oregon Tort Claims Act
The Oregon Tort Claims Act limits the types of lawsuits that may be filed against the state and the circumstances in which they can be brought.
Under the Oregon Tort Claims Act, you may file a claim if:
- An injury or death was caused by a slip and fall or other forms of negligence where the government was at fault.
- You were injured in an auto accident due to the actions of a government employee who was carrying out his or her duties, or the vehicle was part of a ridesharing agreement.
- The actions of a government agency or employee damaged or destroyed your property.
However, even though these categories of claims are generally covered, there are exceptions. For example, your claim will not be covered if, as an Oregon State employee, you were injured while performing the duties of your job. In that case, worker’s compensation insurance applies to your injuries. You will also not be able to file a claim under the Oregon Tort Claims Act if it was determined that you were injured due to your own negligence.
Time Limits with Filing a Claim
Claims against the State of Oregon must be filed within 180 days from the date of injury, which may be extended to one year in cases involving wrongful death. An injured or legally-incapacitated person may also be given an additional 90 days following the injury to file their claim.
Limited Monetary Compensation
The amount of monetary compensation available in a claim under
On May 5, 2016, the Oregon Supreme Court put the nail in the coffin of a personal injury case that has been brewing since 2011, when the parents of a Klamath Falls boy were awarded a mere $3 million in damages for multiple life-threatening surgeries their son endured at the hands of Oregon Health & Science University physicians. The case: Horton v. OHSU. The outcome: Oregon Supreme Court upholds $3 million cap on damages against the state.
The Story behind Horton
In Horton v. OHSU, plaintiffs Steve and Lori Horton (now Lori Spiesschaert) sued OHSU and the physicians responsible for their son’s surgery for medical malpractice. The surgery, which took place in 2009, nearly took his life at just 8 months old. Speisschaert felt a lump on her infant son which led to the discovery of a malignant tumor on his liver. The boy was taken to OHSU to have the tumor removed. OHSU and the physicians both admitted to liability for what took place.
The two surgeons providing care accidentally snipped key blood vessels, leading to liver failure. It took up to 45 minutes for them to realize this. The boy was taken to OHSU two more times for surgeries that caused further harm. Two days after the final surgery, OHSU arranged for the family to fly in an air ambulance to a children’s hospital at Stanford University in California for life-saving treatment. The surgeons at the California hospital were successful in transplanting a piece of the mother’s liver to save his life. Over the course of three months, the child would undergo 4 more surgeries fighting for his life. Two years later, OHSU paid the $3 million that was the maximum allowed under the Oregon Tort Claims Act ORS 30.260, which caps judgments against public entities like OHSU and state employees.
Despite the $3 million, the family came up short on their Stanford medical bills, which amounted to $5 million. None of this was covered by insurance by the way; as as soon as the insurance companies discovered the medical bills were due to negligence they started demanding the family pay them back. The $3 million were divided between Stanford, paying back the insurance companies, lost wages, and several other expenses.
After a few months, the family sued OHSU and the surgeons responsible a second time. OHSU had never disputed that
On September 28, 2016, the Center for Medicare and Medicaid Services (CMS) within Health and Human Services, controlling more than $1 trillion in Medicare and Medicaid funding, has moved to prevent nursing homes from forcing arbitration clauses into nursing home contracts.
The agency’s decision, which is the most significant overhaul of its rules governing federal funding of long-term care facilities in more than two decades, bars any nursing home that receives federal funding from inserting arbitration clauses into the contracts its residents must sign.
Now nursing home residents in situations of abuse and neglect will get their day in court, and disputes about safety and quality of care will no longer be confidential and out of public view. The ruling, first proposed in July 2015 following pressure from patient groups, came after officials in sixteen states and the District of Columbia urged the government to cut off funding from nursing homes that use the clauses. While efforts through legislation to eliminate arbitration have been unsuccessful, the decision of Health and Human Services did not require congressional approval.
Arbitration Gets Supreme Court Blessing
Two Supreme Court rulings in 2011 and 2013 effectively banned consumers from getting legal recourse through class action lawsuits by permitted businesses to insert clauses into the contracts their customers must sign that require all disputes to be settled in arbitration rather than taken to court.
The Federal Arbitration Act of 1925 formalized the use of arbitration for disagreements between businesses. Since the mid-1980s, the court has expanded the scope of the law to cover disputes between companies and their employees and customers. Arbitration is now the most commonly used method of alternative dispute resolution.
Buried as fine print in tens of millions of contracts, arbitration clauses deprive Americans of one of their most fundamental constitutional rights to bring disputes to court. With arbitration, a dispute is put before an arbitrator, who may be a judge or lawyer. With no jury present, the arbitrator makes a decision after both sides have had a chance to present their versions of the conflict. Arbitrators are not required to follow the law or the reasoning of earlier case decisions, and are free to base their decisions on their own ideas of what is fair and just.
While generally quicker and less costly than formal litigation, arbitration proceedings are generally held in private rather than an open courtroom,
Not every personal injury case needs an attorney. If the injuries from your accident case appear to be minor or you feel you are not entitled to receive compensation for your injuries and expenses you might consider settling the case yourself.
When Should You Handle Your Own Case?
If you live in a No-Fault State, you cannot sue unless your injuries are great enough or expensive enough to qualify for compensation. However, you may not immediately know the full extent of your injuries, which may take months after the accident to appear. After settling you could be faced with thousands of dollars in expenses to pay yourself.
Available Compensation Limitations
If you have already received the maximum allowable amount from insurance companies for your case or you are sure the party that caused the accident has few assets, then settling may be the best option. You may need to make an asset search to determine whether or not the other party can pay. This is something an attorney can do for you and present you with all possible options.
Your Injuries Appear to Be Minor
Again, if you want to settle your case without consulting with an attorney you will need to know the full extent of your injuries, which may not be immediately apparent. Once you accept a settlement offer you give up all future claims from the accident. A lawyer will advise you to wait until the right time to accept an offer.
When Personal Injury Insurance is Involved
You may feel that your insurance company or the insurance company of the party that caused the accident is on your side and will help you. However, while your goal is to get the greatest amount of compensation as possible, the insurance company’s objective is to pay out as little as possible.
It is the duty of a lawyer to negotiate to help you maximize your settlement and receive the full compensation you are entitled to. Almost all personal injury lawyers work on a contingency basis, collecting payment out of your settlement award. Payment to the attorney is based on a percentage of your settlement amount. The percentage may be based on whether you settle before a lawsuit is filed, after the lawsuit is filed, or if the case goes to a jury trial.
In November of 2015, the Oregon Legislature passed a bill that sought to improve insurance benefits for victims who are injured in motor-vehicle collisions. Senate Bill 411 (SB 411), was signed into law by Governor Kate Brown. The bill expands coverage for two key areas of car insurance policies: personal injury protection (PIP) and under or uninsured motorist coverage (UIM).
Effective as of January 1, 2016, the new law provides injured parties greater access to compensation. Changes made by the law go into effect on policies renewed or created on January 1, 2016 or later. Drivers who renewed their policies before the specified date cannot benefit from the changes the law presents until it is time to renew again.
Personal Injury Protection
Oregon is one of the 15 states in the US that requires drivers to carry some form of personal injury protection, or PIP insurance coverage. The minimum coverage for PIP is $15,000. This means that in the event that you are injured your insurance company covers reasonable and necessary medical expenses worth up to $15,000 regardless of who was at fault. This coverage extends to cyclists and pedestrians who are hit by a motor vehicle.
Two Major Changes
Before SB 411, PIP insurance paid medical expenses incurred from an auto accident for up to a year after the collision occurred. Now that SB 411 has been enacted, the payment period increased to 2 years. Since $15,000 is nowhere near the average amount needed to recover from serious personal injury, and since the payment period grew a full year, it is possible to purchase additional coverage.
Another boon to injured parties that arose from SB 411 is the manner in which at-fault carriers must reimburse the PIP carrier. It used to be that the at-fault party’s insurance must reimburse the injured party’s insurance in full unless the injured party’s economic damages exceeded the amount recoverable. The injured party’s insurance company could still receive compensation even if not enough of it was available to fully cover the injured party.
Under the new law, the at-fault party’s insurance must pay the injured party after the injured party recovers all damages from his own policy. This leads to greater compensation for the injured party, as he or she can receive damages from both insurance providers. If your medical expenses exceed your insurance coverage, you can receive compensation