How Forced Arbitration Can Ruin your PI Claim

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

By |April 28th, 2017|Elder Abuse, Personal Injury, Protecting Oregonians|

The Good, The Bad, The Ugly: Portland’s Bike-share Program

By now, you may be familiar with the ubiquitous red-orange bikes around town. They are the meat of Portland’s Nike-sponsored bike-share program, Biketown. The program officially launched nearly a year ago in June 2016 after several years of development and logistical setbacks.

Portland’s Struggle to Acquire Biketown

Portland has long held the reputation of being a bike-friendly city. In fact, it was one of the first cities in the U.S. to brainstorm of some type of bike-share program. Way back in 1994, the city launched the Yellow Bike Project in an attempt to model Amsterdam’s free community bike program. This ended up in disaster. The city teamed up with a nonprofit organization to release free bikes to whoever could use one, with only the honor system to protect them. Bikes were quickly vandalized or stolen.

In 2006, the city requested a municipal bike-share program proposal. This request was canceled two years later to dedicate more time to analyzing logistics. In 2011, activists from Bicycle Transportation Alliance encouraged the project’s revival. Further unfortunate events ensued. It took another two years for federal funds to disperse as financial obstacles struck the bike-share industry.

In 2014, Bikeshare Holdings purchased Alta Bicycle Share, the company the city had selected to operate its program. Later that year, the company’s major bike supplier filed for bankruptcy.

Alas, some light appeared at the end of the tunnel when in 2015, PBOT’s new director, who had worked on launching bike-shares in DC and Chicago, was determined to launch whether or not a sponsor was involved. By 2016, Portland struck a deal with Nike, allowing the program they were developing with Motivate, the updated Alta Bicycle Share operator, to expand it.

For all the setbacks, the program has seen a significant amount of use since it finally launched last year. Let’s take a closer look.

The Good

Biketown Portland is a relatively cost-effective bike-share program that contains more smart bikes than any other city bike-share. The technology to manage the program is less expensive than traditional systems that Motivate has employed in other cities. This is good news for taxpayers considering the program is publicly funded.

They aren’t called “smart bikes” for nothing. Each Biketown bike is equipped with GPS tracking and the

By |April 24th, 2017|Bicycle Accidents|

Studies Show Soccer Hits Cause Traumatic Brain Injury

Awareness of the link between concussions in sports activities began when former football players committed suicide after suffering the effects of traumatic brain injury on the field. New data shows that soccer players are also at high risk for traumatic brain injury.

Hockey, lacrosse, boxing, baseball, skateboarding, skiing, and horseback riding expose players to head injury, but soccer players are at greater risk of suffering degenerative damage, due to the number of repeated hits to the head.

Whether in practice games or competition, soccer players who frequently “head” the ball are three times more likely to have concussion symptoms than players who don’t experience large numbers of headers, according to a study published in the journal Neurology. When a bump or jolt to the head or a hit to the body causes the head and brain to move rapidly back and forth, the brain bounces against the inside of the skull. Soccer players routinely experience a large number of head-to-head collisions, head-to-knee collisions, and head-to-field collisions on the field, with the potential for repetitive concussions.

Research Reveals Brain Damage from Soccer Heading and Collisions

Researchers from the University College London and Britain’s National Hospital for Neurology and Neurosurgery studied 14 brains of former soccer players who developed dementia and had signs of Alzheimer’s disease. Of those 14 studied, 4 (29 percent) had chronic traumatic encephalopathy (CTE) pathology, a consequence of repeated impacts to the brain, including heading the ball and concussion from head-to-head collisions. A previous study of 268 brains from the general population in Britain found a far lower CTE detection rate of only 12 percent. Earlier studies, where researchers compared soccer players to swimmers showed that swimmers’ brains looked perfectly normal while soccer players’ brains had abnormalities in the white matter fiber tracts that carry messages throughout the brain. If the brain is violently shaken enough, there tends to be disruption of those fiber tracts. Another study from Purdue University found that heading of goal kicks and hard shots are as damaging as helmet-to-helmet impact in football.

When Is Concussion More Likely to Occur

A number of biological factors determine whether or not a hit to the head will lead to a concussion:

  • How many concussions a person has had before
  • How severe those previous concussions were and how close together they occurred
  • Neck strength (a strong neck supporting the head reduces the chance of concussion)
  • Hydration status (if you are dehydrated you are more likely to have a concussion)
  • Gender (women are more easily concussed than men)
  • Age (it is easier to concuss at an earlier age than at an adult age and recovery is slower)

Myelin that coats white matter fibers carrying brain messages is not as thick and strong in youngsters as in adults. Youngsters also have bigger heads in proportion to their bodies with very weak necks, compared to adults, giving them a bobblehead-doll effect that tends to cause damage.

By |April 24th, 2017|Brain Injury|

Can Microwaves Be Used to Diagnose Bleeding from TBI?

Stroke-detecting technology using microwaves shows promise in detecting intracranial bleeding from traumatic brain injury. 

Treatment for severe traumatic brain injuries (TBIs) characterized by bleeding in the brain (intracranial) requires opening the skull to release pressure and remove clotted blood, called a hematoma. The survival rate is only ten percent if the hematoma is not removed within four hours. Getting a patient with an intracranial hematoma to a neurosurgical center with radiology facilities for a CT scan in the shortest amount of time then becomes a matter of life and death.

“It’s not so much an issue of being able to do more for them (TBI patients) pre-hospital wise, it’s a question of triage, of transporting them to the right hospital, and that’s a huge problem,” said Mikal Elam, chair of clinical neurophysiology at the University of Gothenburg.

Stroke Detecting Device May Detect Hematoma from TBI

The goal has been to find a portable device to detect bleeding from TBI at low cost to convey diagnostic information in a fast, non-invasive, and safe manner. Researchers at Chalmers University of Technology in Sweden are now considering applying an already existing, light-weight (under 10 pounds), portable stroke-detecting device called a Strokefinder to quickly diagnose intracranial bleeding at the site of a traumatic brain injury.

Built by Medfield Diagnostics, the Strokefinder is a tool already used to differentiate between strokes without a clot blocking blood flow and those that involve bleeding. Medfield is collaborating with Chalmers’ and Gothenburg’s Sahlgrenska University Hospital on projects featuring the Strokefinder, believing doctors there would have a better idea of what they need than engineers at the company.

Here’s How It Works

The Strokefinder device a patient’s head is placed inside has eight microwave antennas on it, each one firing a small amount of microwave radiation through the brain (between 1/100th and 1/10th what you receive from a cell phone conversation), while the other antennas pick it up. The process is repeated at several different frequencies. The microwaves quietly progress through the tissue in different ways, depending on the consistency of the tissue, and are then filtered via an algorithm instead of an image, to enable the hematoma to stand out as either a stroke or a TBI. The patient can’t feel it working, and the entire process takes only 45 seconds. Once a hematoma is detected, the patient can be quickly transported to the correct hospital with a neurosurgical center.

By |April 21st, 2017|Brain Injury|

Oregon’s Hidden Senior Care Abuses

One of the most troubling decisions you may face in your lifetime is deciding whether or not a parent or senior relative should be placed in the care of a nursing home. In many cases, families do not have a choice as the health of their relatives depends upon a continuous cycle of care by doctors and nurses. One would hope that the caregivers and other personnel at these facilities are fully vetted, trained, morally noble and responsible individuals, eager to provide their best care and peace of mind to the families who rely on them. Unfortunately, with the number of abuse cases we see here at Rizklaw, this isn’t always the case.

Misleading Records

The number of incidents of senior care abuse is likely higher than anyone assumes, but we don’t have reliable information to draw from. There is no national database to keep track of abuse complaints, and agencies at the state level do a poor job. Most agencies dedicated to conducting investigations and filing reports are severely underfunded and understaffed.

What’s worse? In Oregon, the state’s taxpayer-funded website for consumers researching care facilities omitted nearly 8,000 substantiated abuse complaints against senior care centers. That’s 60% of all complaints filed. Complaints ranging from serious medical concerns like a fractured hip or medication mixups to complaints filed about valuables gone missing were deleted from the website, misleading consumers looking to place their relatives in the 600+ long-term care facilities throughout the state. Record of wrongful death due to negligence were also missing.

What little data remains on the website includes excruciatingly vague descriptions, such as “inadequate hygiene” or “exposed to potential harm.” In one instance, a resident of a northeast Portland facility fell in the middle of the night and started to bleed from the head. Rather than call upon a nurse to evaluate the situation more closely, the resident was placed back in bed by the caregiver on duty. The next day, the same resident complained of pain. It was discovered that the resident had suffered a fractured hip. After all this, the report online simply stated the outcome of the complaint as “unreasonable discomfort.”

If you are looking to place your parents in a facility, would “unreasonable discomfort” be enough

By |April 21st, 2017|Protecting Oregonians|

Update on Youth Sports Concussion State Laws

Since Washington State passed the Zachery Lystedt law in 2009, each state has enacted legislation to protect young athletes from the risks associated with concussion in sport.

On October 2006, 13-year old Zachery Lystedt collapsed from a traumatic brain injury when he was allowed back into the game just fifteen minutes after suffering from a concussion and then spent months in a coma followed by years of rehabilitation. As a result of that event, Washington State enacted the first youth sports concussion safety law to address management in youth athletics, called the Zachery Lystedt law.

The key provisions of the Zachery Lystedt law are:

  • School districts board of directors and state interscholastic activities associations must develop concussion guidelines and education programs.
  • Youth athletes and a parent and/or guardian must sign and return a concussion and head injury information sheet on a yearly basis before the athlete’s first practice or before being allowed to compete.
  • Youth athletes suspected of having sustained a concussion in a practice or game must be immediately removed from competition.
  • Youth athletes who have been taken out of a game because of suspected concussion are not allowed to return to play until after:
    • Being evaluated by a health care provider with specific training in the evaluation and management of concussions
    • Receiving written clearance to return to plan from that health care provider
  • A school district complying with the law is immune from liability for injury or death of an athlete participating in a private, non-profit youth sports program due to action or inaction of persons employed by or under contract with the sports program if:
    • The action or inaction occurs on school property.
    • The non-profit provides proof of insurance.
    • The non-profit provides a statement of compliance with the policies for management of concussion and head injury in youth sports.

NFL Commissioner Urges State Governors to Enact Youth Concussion Laws

Following passage of the Zachery Lystedt law, in the spring of 2010, NFL Commissioner Roger Goodell sent a letter to 77 U.S. Governors to encourage them to push for concussion legislation to protect youth athletes in their states.

He said: “Given our experience at the professional level, we believe a similar approach is appropriate when dealing with concussions in all youth sports.  That is why the NFL and its clubs urge you to support legislation that would better protect your state’s young athletes by mandating a more formal and aggressive approach to the treatment of concussions.” 

States Pass Youth Concussion Laws Modeled after Zachery Lystedt Law

By 2013, all states except Mississippi had enacted youth sports concussion safety laws modeled after Washington State’s Zachery Lystedt law. Finally, in 2014 Mississippi became the 50th state to respond by passing legislation to protect young athletes from the risks associated with concussion in sport.

The three main tenets of each state’s concussion legislation are:

  • To mandate educational outreach to coaches, parents and athletes
  • To mandate immediate removal from play of any athlete who sustains a concussion or who exhibits signs, symptoms or behaviors consistent with the injury
  • To only allow those athletes who exhibit such signs, symptoms, or behaviors to return to physical activity after receiving written clearance from an appropriate health care provider who is trained in concussion management

Many state laws also require parents to sign an acknowledgement form prior to allowing their child to play a contact sport after they have received information on concussion and acknowledged concussion risks involved with that sport.

Although nearly all laws include those three tenets, based on their own individual needs, many state laws vary on what sport programs must comply, what penalties exist for those who do not comply, and what medical providers are “appropriate” to make return to play decisions.

By |April 17th, 2017|Brain Injury|

Nursing Home Sexual Abuse in the United States

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,

By |April 16th, 2017|Personal Injury|

EPA Refuses to Ban Toxic Pesticide Chlorpyrifos

Dangers of Pesticide Chlorpyrifos

On March 29, 2017, the U.S. Environmental Protection Agency (EPA) issued a statement refusing to ban chlorpyrifos used in agriculture. For decades, corn, wheat, apples and citrus have been sprayed with chlorpyrifos, shown to cause permanent brain and nerve damage in children. The EPA even admits this, but under chemical industry pressure still refuses to remove the product.

Environmental groups have repeatedly pushed the EPA to ban the organophosphate pesticide chlorpyrifos, known to harm health, water and wildlife. Following the EPA’s March refusal to ban this hazardous chemical, on April 5, 2017 the environmental group Earthjustice, representing Pesticide Action Network North America (PANNA) and the Natural Resources Defense Council (NRDC), asked the U.S. Court of Appeals for the Ninth Circuit to direct the EPA to act within 30 days to ban all uses of chlorpyrifos, based on the agency’s repeated findings that the pesticide is unsafe.

Organophosphates were developed by the Nazis during World War II as nerve gas agents. Chlorpyrifos is an organophosphate that in 1965 was registered as an insecticide in the U.S. by Dow Chemical Company for both agricultural and residential use to damage the nervous system of insects. Unfortunately, it has the same effect on humans exposed to it.  

The 1996 Food Quality Protection Act (FQPA), passed unanimously in Congress, is a health-based standard that requires the EPA to protect children from unsafe exposures to pesticides. The FQPA requires the EPA to ensure with reasonable certainty that “no harm will result to infants and children from aggregate exposure” to pesticides. If the EPA cannot ensure that a pesticide won’t harm children, the law requires the EPA to ban uses of the pesticide.

Chlorpyrifos, due to its toxicity was banned for home use in the U.S. in 2000. Before that, it was used to treat carpets and in flea bombs and termiticides. Chlorpyrifos is harmful if it is touched, inhaled, or eaten. Even low-dose exposure to organophosphates has been found to harm brain development in children, leading to higher risk of disorders like autism. Prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, loss of working memory, attention disorders, and delayed motor development.

Chlorpyrifos exposure may lead to acute toxicity at higher doses. Persistent health effects follow acute poisoning or from long-term exposure to low doses, and developmental effects appear in fetuses and children even at very small doses.

In 2007, Pesticide Action Network of North America (PANNA) and Natural Resources Defense Council (NRDC) filed a petition with the EPA seeking a chlorpyrifos agricultural ban based on growing evidence of risks and harm that would eliminate all uses of the pesticide. Seven years and several lawsuits and delays later, the EPA had still not taken action on the petition. In September, 2014 on behalf of PANNA and NRDC, Earthjustice filed a petition in the Ninth Circuit Court of Appeals compelling the EPA to act on the petition. Finally, on October 31, 2015, the court ordered the EPA to issue a final response to the petition. Under pressure from chemical lobbyists, the deadline was not met, causing the court in August, 2016 to tell the EPA to take final action on the petition by March 31, 2017, which on March 29, 2017 it refused to do.

By |April 16th, 2017|Brain Injury|

Portland Bike-Share Bars Lawsuits

Nike-sponsored Biketown is Portland’s premier bike-share program. A thousand bright red-orange bikes eagerly await commuters at one hundred stations across downtown and local neighborhoods. At $2.50/ hour or $12 for a full day, these bikes are attractive and convenient options for city transportation. The program launched in July 2016 with extremely promising results. A total of 136,000 miles were traveled over 59,000 trips in its very first month. Biketown allows locals and tourists alike to traverse our bike-friendly city easily and relatively cheaply; yet what consumers may not know is that with each Biketown agreement they sign, they waive their constitutional right to a civil jury trial in court if something goes awry.

How Forced Arbitration Impacts Consumers

Arbitration clauses were developed as an informal, expedited method of resolving common disputes among businesses. The model does not work well when a consumer is pitted against a corporation, for these two entities are not equal.

Companies that include forced arbitration clauses in their user agreements try to paint them as user-friendly alternatives to complicated and unpleasant court proceedings. Little do most people know that arbitration is heavily biased toward the corporation. It is also generally not a more cost-effective approach to dispute resolution than taking someone to court.

Portland’s Biketown yet Another Peddler of Forced Arbitration

The program boasts it is the perfect solution for one-way trips around town. Its own website states it is “fun, affordable, and convenient;” yet, in the depths of the Biketown User Agreement there is a forced arbitration clause buried in the section titled “Binding Arbitration; Class Action Waiver” that prevents users of the popular bike-share program from pursuing their claims in court or as part of a class action settlement. The only solution the contract provides is to pursue mandatory arbitration to resolve disputes.

A portion of the clause reads:

“You agree that any dispute or Claim relating in any way to Your use of the Services will be resolved by binding arbitration, rather than in court.”

Forced arbitration clauses have long stripped away the rights of consumers to stand up to corporations for wrongdoing. Over the past 30-odd years, companies have used these clauses as shields against taking responsibility for violating a myriad of consumer protections. These clauses are everywhere —

By |April 14th, 2017|Bicycle Accidents|

Top 7 Ways Forced Arbitration Harms Consumers

Arbitration is a dispute resolution alternative that aims to keep court costs down and quicken the time it takes to reach an agreement between two parties. Originally, arbitration was used to settle matters between two companies on equal footing. Today, arbitration is used by large corporations against consumers who are at a blatant disadvantage, having few resources and no power in the industry. While arbitration was first intended as an alternative for parties in mutual agreement of using arbitration instead of taking matters to court, these days millions of consumers are forced into it without even realizing it. Talk to an attorney if you believe you are bound by an arbitration clause in your personal injury case.

Where Can I Find Arbitration Clauses?

Arbitration clauses are hidden in contracts of everything from the terms and conditions of your credit or debit card to your cable, internet, or Netflix subscription. If you are a fan of shopping online, you may be surprised to know that Amazon’s Conditions of Use subjects shoppers to binding arbitration to resolve disputes. Even some healthcare providers hide these in the paperwork you have to fill out before a doctor will see you. Nursing homes and adult care facilities may also include arbitration clauses in their contracts, although changes to the laws allowing this are currently in progress.

How does Arbitration Hurt?

When a powerful entity such as a hospital is pitted against a single consumer, it rarely works out well for the consumer in the end. Arbitration is cheap for the company that mandates arbitration, and it is a high-cost pursuit for the claimant who wishes to proceed with the complaint. The “neutral third party” who is in charge of deciding an appropriate course of action is usually a retired judge, a judge who does arbitration as a source of extra income, or a lawyer trained in arbitration. These arbitrators have usually been hired several times by the same company and have a chummy relationship with the company, automatically inserting bias into the supposedly “neutral” nature of their position. Ultimately, forced arbitration is currently an accepted way for companies to strip consumers of their legal right to sue.

High Costs to Pursue Claim

To begin the arbitration process, claimants

By |April 12th, 2017|Protecting Oregonians|