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.
If you have ever suffered at the hands of doctors who denied you better treatment options, you may now have a valid medical malpractice case. The Oregon Supreme Court ruled this month that patients can bring medical malpractice cases in situations when the negligent care denied them a treatment or procedure that could have had a better outcome than the treatment that was given. This takes medical malpractice beyond cases of simple negligence-induced injury.
Naturally, physician groups protested. The Oregon Medical Association and the American Medical Association filed a brief asserting that allowing loss of chance cases would drive up the number of malpractice lawsuits, medical malpractice insurance premiums, and push doctors to practice what is called “defensive medicine.” Are these concerns genuine?
Defensive Medicine and the Rise of Healthcare Costs
“I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone.”
Defensive medicine is a natural enemy of dedicated physicians who uphold the Hippocratic Oath. This approach to medicine is one in which physicians and other healthcare providers consider the possibilities of litigation in their methods. The purpose of defensive medicine is to avoid litigation; when treatments and procedures are done with the consideration of a possible lawsuit rather than the patient’s best interests, we have a problem. Actually, defensive medicine gives rise to three big problems:
- Increased health risks to patients
- Increased price of healthcare
- Degradation of trust between healthcare professionals and their patients
When patients are subject to defensive medicine, there is the potential for unnecessary treatments and procedures. Doctors may run unneeded tests, prescribe medications when they are not necessary, and perform invasive procedures without an absolute need. They also may be prone to needlessly hospitalize patients to give the impression that they are doing their jobs. All this unnecessary medical attention could easily drive up the costs of healthcare for individuals.
At the same time, defensive medicine can swing the other way and deny patients options that could really benefit in the long run, as in the case of Joseph Smith, whose medical malpractice case is the one on which the state Supreme Court’s new ruling
If medical error were considered a disease by the Centers for Disease Control and Prevention it would be the third leading cause of death in America, falling behind only cancer and heart disease. The two doctors who published the article in the British Medical Journal conservatively estimated an alarming 251,000 people die each year as the result of medical errors or improper medical care. Of all the errors that pave the way for medical malpractice lawsuits, perhaps the most common lies in the medical practitioner’s failure to properly diagnose a condition.
Roughly 12 million Americans are misdiagnosed each year, according to a study published in the BMJ Quality & Safety Journal. This means that 1 out of 20 adult patients are misdiagnosed, or 5% of the total outpatient . Of these misdiagnoses, nearly half (47%) lead to serious disability. It is estimated that nearly every individual will have a medical condition misdiagnosed at least once in her lifetime. Misdiagnosis alone may be the cause of 40,000-80,000 of the deaths that medical error brings annually.
Misdiagnosis Spurs Malpractice Claims
Patients may be misdiagnosed in a variety of settings. Recent research shows that in addition to being misdiagnosed in a hospital, more patients are being misdiagnosed in outpatient clinics and doctor’s offices. There are several reasons for misdiagnosis, the most common of which are:
- Issues arising when ordering diagnostic tests
- Patients failing to disclose an accurate medical history
- Doctors misinterpreting test results
Diagnostic errors are the most common mistakes made by the medical community that lead to malpractice suits. Such errors are the most likely to result in disability or death. Between 1986 and 2010, these errors cost $38.8 billion in malpractice claim payouts. These errors are also largely preventable.
Those in the medical community have a number of challenges to reducing the rate of diagnostic errors, yet medical professionals suggest there are a number of things patients can do.
What Should Patients Do?
In Oregon, 8,579 adverse actions were taken against healthcare providers between 2005 and 2015 as the result of
It wasn’t very long ago that General Mills — manufacturer of dozens of familiar food brands such as Cheerios, Betty Crocker and Pillsbury — raised hell when it changed the legal terms on its website requiring all disputes related to the purchase or use of any of its products to go through mandatory arbitration for resolutions. Consumers were outraged that engaging with the company online– whether by using their website, joining their online community, subscribing to email newsletters, or even downloading a coupon– could make them lose their right to sue General Mills for any future wrongdoing.
After copious pressure, General Mills caved. They reversed their position, but still hundreds of large corporations are subjecting consumers to forced arbitration in their terms and conditions. Clauses are even present in employment contracts.
What is Forced Arbitration?
Arbitration is an alternative method of resolving legal disputes in which two or more parties present their sides of a complaint to a “neutral third party” or “neutral panel” outside of a courtroom. There is no judge or jury; it is this “neutral” party who then decides, after hearing both sides, what the proper course of action should be. There is also no way to appeal the decision reached.
Many cases of arbitration involve parties that all mutually agreed to the arbitration. It is increasingly common for personal injury complaints to be resolved this way; it is just one of several avenues you can take to resolve your case, provided you are given the option.
Forced arbitration clauses are present in the fine print of contracts for everything from car loans and student loans to leases, credit cards, checking accounts, insurance contracts, and even nursing home agreements. If you have ever purchased on Amazon, Groupon, paid a Netflix subscription or obtained cell phone service through any of the big providers, you have signed an arbitration clause and may not even know it.
Effects on Consumers
Proponents of arbitration always try to spin it as a low-cost, informal alternative to lawsuits. They purposely mislead consumers by emphasizing there is no requirement for their representation by an attorney. Surely, a company like General Mills could afford to and would bring their own attorneys to arbitration had they
Imagine that you are helpless in bed, relying on another’s care for survival. One day, as you are being fed or bathed or changed, your caregiver turns against you and forces you to perform sex acts on him or takes advantage of you while you are sleeping. Now, imagine that you are elderly and that the likelihood of anyone believing what you have experienced is slim simply due to your age or other disability. These are the experiences of thousands of senior citizens and mentally or physically incapacitated patients throughout the country who reside in residential care facilities, assisted living centers, and other long-term care facilities.
Elder care sex abuse is not an issue most people are familiar with or have ever even conceived. It is not an issue that should ever have been conceived, yet the thought has crossed the minds of dozens of unfit caregivers, and many have acted upon them. As horrifying as it sounds, elder care abuse is barely on the radar. It is not even a priority for most law enforcement agencies and officials. But it is a serious issue that is gaining more awareness, as instances of abuse are on the rise.
A Hidden Problem
Throughout the United States, incidents of sex abuse toward those who are in long-term care facilities such as nursing homes have increased. Residents are assaulted by caretakers, facility personnel, other residents, and sometimes, even the owner himself. Sadly, there are currently no reliable national data due to a lack of organized data collection regarding these statistics. Just one organization — the Administration for Community Living based in Washington D.C. — has compiled any kind of data: approximately 20,000 complaints in a span of 20 years. This works out to about 3 complaints per day; this statistic excludes incidents of resident-on-resident sex abuse. Realistically, the numbers are likely much higher.
The issue is rampant and yet plagued by unawareness, apathy, and sheer neglect. No one really “believes” that elderly or incapacitated persons could be the victims of rape or other forms of sexual abuse. Victims may be too embarrassed to speak up, or they don’t think anyone will believe them. Families and friends who visit may suspect abuse but don’t wish to believe it or don’t want to get involved,
The fast-food burger and fries you eat may be doing more than adding fat and calories to your body. According to scientists, the packaging they come in might be bad for you too.
Laurel Schaider, PhD, of the Silent Spring Institute in Newton, Massachusetts reported that, of 407 fast-food packaging samples tested, 33% had detectable levels of fluorine, in a class of chemicals known as PFASs (per- and polyfluoroalkyl substances), known to cause numerous health problems.
Previous scientific research has linked PFASs with cancer, thyroid disease, immunotoxicity, low birth weight, and decreased fertility. Nearly half (46%) of paper wrappers tested, such as burger wrappers and pastry bags, and 20% of paperboard samples, such as boxes for fries and pizza, tested positive for fluorine.
Damaging Chemicals from Packaging Remain in Body
While PFASs are used in food packaging for their water- and grease-resisting properties, research has shown that they can leach into food, and once ingested can stay in the body for days, weeks, even years. Our bodies accumulate PFASs from many sources. Microwave popcorn bags and pizza boxes as well as stain-resistant carpets and waterproof clothing may also contain PFASs.
As many as 80% of adults over the age of 29 eat fast food monthly, with about 50% eating fast food at least once a week. Of particular concern is the frequent exposure to these chemicals of children, whose developing bodies are more vulnerable to toxic chemicals. Approximately one-third of U.S. children eat fast food every day.
PFASs Banned In US but Still Found in Packaging
Research samples high in fluorine showed various types of PFASs, including long-chain PFASs. Due to health concerns, long-chain PFASs were phased out in the U.S. from 2000-2015, though they are still manufactured in other parts of the world, and may be finding their way into current packaging through recycled paper.
A toxic tort is a particular type of personal injury case involving exposure to a chemical or toxin that has caused medical injury. Because injuries in a toxic tort case might not occur immediately or be visible and the duration and amount of exposure may be unclear, they tend to be more complicated than other kinds of personal injury cases. Biomarkers that measure the effects of toxic exposure on the human body provide evidence of both cause and effect in these types of cases.
A plaintiff in a toxic tort case may have suffered health problems from exposure to one of the following:
• Contamination of groundwater or soil from dumping of wastes and chemicals
• Contamination of air or environment from release of noxious gases or toxins
• Mold (particularly black mold)
• Lead paint
A toxic tort case may be brought against a company that dumped pollutants in the groundwater, a manufacturer of asbestos, a landlord who didn’t make sure an apartment was free from mold or lead paint, or the manufacturer of a dangerous drug.
Causation One of the Biggest Hurdles in a Toxic Tort Case
The most challenging part of any toxic tort claim is proving and measuring damage suffered by the plaintiff and determining the cause of that damage. Proving cause may involve:
• Medical testimony from experts linking the toxin and the illness
• Evidence of the exposure
• A high incidence of similar illnesses in people who suffered similar exposure
• FDA or other product recalls or public warnings about the dangers of a product
How Do Biomarkers Measure Toxic Exposure?
Biomarkers are indicators of molecular changes in blood or tissue that can show an abnormal condition or disease. A biomarker can be measured and quantified, such as blood pressure, presence of certain chemicals in blood, or genetic mutations.
Outcomes of toxic tort cases frequently are based on measurement of biomarker data, which may reveal exposure to a toxin, such as cigarette smoke, benzene, and asbestos, and as well as aid in the diagnosis of disease caused by that exposure. In this way, biomarkers measure both cause and effect.
Cancer Biomarkers Indicate Genetic Damage
A cancer biomarker is a substance or process that will indicate the presence of cancer in the body. It may be a substance secreted by a tumor or a specific response of the body to the presence of the cancer, such as a genetic mutation.
Many unsightly injuries and devastations occur at the hands of alcohol. Just last year, approximately 10,265 people died in a drunk driving incident, up 3.2% from 2014 statistics. If alcohol was a factor in your personal injury case, you may be interested in knowing whether or not that can affect your claim.
Besides suing the alcohol-impaired driver who caused the accident, depending on the circumstances around your case you may be able to file a claim against the bar, bartender, or server who did not utilize discretion when serving the driver alcohol. In Oregon, “dram shop” laws are laws that place liability on the entities that sell alcohol for the negligent and reckless actions of their impaired patrons. Almost all states have some type of dram shop protections for victims of drunk drivers.
What is “Dram Shop”?
The term dram refers to a unit of measure by which alcohol used to be measured. A dram shop was an establishment in 18th Century England that sold gin by the spoonful, or “dram.” In the time before dram shop laws, courts did not usually allow parties to sue businesses that sold alcohol for over-serving, since the serving itself did not cause the injury or death. Today, 43 states and D.C. have at least some dram shop law in effect for which an injured party or the family of an injured party are able to sue alcohol vendors or retailers for monetary damages.
Put simply, dram shop cases are those in which businesses that sell and serve alcohol are sued for serving a patron too much to drink. There are third and first party dram shop cases in which an establishment can be partially liable for a personal injury or wrongful death.
A first party dram shop case is one in which the inebriated patron is also the injured party. In this case, the intoxicated person sues the establishment for serving too much to drink. This type of dram shop case is not permitted in most states as people should be held accountable for their actions. In some states, only minors are allowed to file a first party dram shop lawsuit. First party cases are extremely difficult to pursue because it’s tough to persuade a jury to sympathize with someone who should have known when he or she was not fit to drive.
Throughout Oregon, the most commonly pursued
In another compassionate display by an Oregon court, a judge drastically cut a jury award for a Portland man who lost his leg to a city garbage truck. Damages for emotional distress have been reduced from $10.5 million to $500,000, continuing a pattern of irresponsibility and refusal to adequately compensate victims who are wrongfully injured.
It seems that in almost any Oregon personal injury case, the injured party cannot collect more than $500,000 for emotional distress, regardless of what sum a jury feels is deserved, or how much their lives have transformed because of the accident.
Earlier this year, Judge Michael Greenlick of the Multnomah County Circuit Court scaled back a jury award worth $10.5 million by ten million dollars. He spent over six months deciding whether or not to reduce the award, granted to plaintiff Scott Busch, before ultimately issuing a lengthy explanation for cutting back. His seven page judicial opinion heavily referenced case law and the Oregon Constitution. Of particular interest is the Horton decision in which the Oregon Supreme court reinstated the cap on noneconomic damages.
Had he found that Busch’s case did not meet the constitution’s call for a “substantial remedy,” Judge Greenlick could have ignored the damages cap. In Busch’s case, Greenlick considered an award of $3 million for financial losses, which would be untouched by his reduction. He felt that those $3 million in addition to $500,000 for emotional distress was a substantial amount.
In the end, Busch will receive approximately 26% of the total jury award. Considering past appeals, Greenlick found that there was only one case where the cap was deemed unconstitutional because the plaintiff was going to receive only 1.2% of the total.
Such a ruling is just one example of a growing trend that is harming injury victims. While Greenlick’s decision in the Busch case won’t directly affect other civil suits, it will carry an influence on future pretrial negotiations.
How Busch was Robbed by Horton v. OHSU
Thanks in no small part to Horton, a 57-year old Scott Raymond Busch man lost a $10 million award for a severed leg that he lost when crossing a street in downtown Portland. Busch was lawfully crossing the street in a crosswalk when a garbage truck operated by Allied Waste Services crashed into him after committing a series of traffic infractions. The impact took his leg from above
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 tissue blast injury.”
E-cigarettes use lithium-ion batteries because they are able to store large amounts of energy in a compact amount of space. However, lithium-ion batteries when poorly designed with low-quality materials, manufacturing defects, or improper use have the capacity to spontaneously ignite and explode.
With MODs or Personal Vaporizers, many people use batteries that have wrappers that may be ripped or torn, causing the devices to ignite either in use or in storage, such as in a pocket. The majority of cases of exploding e-cigarettes, however, happen with rechargeable vape pens, also called “twists,” and not from MODs where the battery completely disconnects from the device allowing it to charge separately, away from the tank and atomizer. According to the Federal Emergency Management Agency (FEMA), 80% of e-cigarette explosions happen with vape pens during charging, and the cause is often linked to the use of an alternative charger that was not sold with the battery that was charging.
Lithium-ion Batteries Prone to Explosion with Overcharging
Vape pens often have a built-in USB port, which allows the user to plug in the whole device. They are designed to be recharged using a USB port built into the e-cigarette and a power adapter supplied with the device. According to FEMA, using a power adapter or charger “not supplied by the manufacturer, such as a computer USB port, may subject the battery to higher current than is safe, leading to thermal runaway that results in an explosion and/or fire.” Without knowing the specific electrical specifications of an alternative USB power source or the battery, an effective or safe charge cannot be guaranteed. Overcharging a lithium-ion battery or subjecting it to overheating can also weaken it, making it prone to later spontaneously ignite and explode in use or when stored.
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