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Can You Sue Your Hospital? Yes

October 21st, 2014 by admin

Two months ago, few in our part of the country had heard of Texas Presbyterian Hospital in Dallas, and now odds are most everyone recognizes that name. After all, Texas Presbyterian is where Thomas Eric Duncan was hospitalized for Ebola last month, and it is in one of their hospital rooms that Mr. Duncan passed away earlier this month.

Texas Presbyterian Hospital (full name being Texas Health Presbyterian Hospital Dallas) is also the hospital where two of its nurses have now been diagnosed with Ebola, though neither one of these two victims is being treated there.

Nurse Nina Pham is being cared for in Baltimore, Maryland; nurse Amber Joy Vinson is being treated in Atlanta, Georgia.   No other cases of Ebola have been reported, and Mr. Duncan’s family members have been released from quarantine after 21 days of isolation without any signs of infection.

There is a growing focus on this Texas hospital and what happened there to cause two of its staff to come down with the terrifying virus as a result of treating Mr. Duncan. The Centers for Disease Control (CDC) is reported to have stated that there was a contamination at Texas Health Presbyterian Hospital Dallas which was a “breach of protocol” under CDC guidelines.

 

Hospitals Get Sued for Malpractice, Just Like Doctors

It’s not clear what the future will hold for Texas Presbyterian Hospital. Will it be the defendant in a lawsuit? Time will tell.

However, one thing that may be confusing to some folk is that a hospital can be sued for malpractice just the same as an individual doctor can be sued for making a medical mistake. Hospitals are “legal entities” just like people under both Indiana and Illinois law, for example. They can be named as defendants in lawsuits.

When someone is hurt by an error or mistake while they are being treated in an Indiana or Illinois hospital, they may well have a legal claim for damages against that facility. Unless the facts show that the reason that they were harmed was someone’s intentional evildoing, then that lawsuit will most likely be based upon state negligence law, or medical malpractice.

When a hospital is sued, a human being will act as the hospital’s duly authorized representative in much the same way that a corporation will have one of its officers or directors sitting at the defense table at trial as the representative of that company. Similarly, if settlement negotiations take place between a patient who is suing a hospital, then there will be a person authorized to represent the hospital at the negotiation table who will have the authority to agree on a settlement amount.

Hospitals Are Responsible for Mistakes Made by Hospital Employees

When an employee of a hospital is negligent — they make a mistake or error that harms a patient — then the hospital can be held responsible for that employee’s negligence. Nurses, technicians, assistants, aides, paramedics, EMTs, and others who are paid on the hospital payroll are among those individuals whose medical negligence can form the basis of a negligence lawsuit against a hospital.

Whether or not the malpractice of a doctor or physician will be the basis of a lawsuit against the hospital isn’t as clear under our laws. It will depend upon the relationship between the hospital and the doctor: if they are shown to have an employer-employee relationship — as opposed to an independent contractor arrangement — then the hospital may be sued for the doctor’s medical errors.

 

Illinois and Indiana: Ebola Preparations

October 16th, 2014 by admin

There have not been any cases of Ebola in our part of the country, but many are concerned about the potential of the virus spreading to Indiana and Illinois. To that end, lots of information and support is being provided by the health officials in both states and we’re got the links to all that information (which is routinely updated) here:

1. Illinois

See the Illinois Ebola Info Website

In Illinois, the Director of the Illinois Department of Public Health has announced that a hotline is being set up for the public to call and ask questions about Ebola. From Dr. LaMar Hasbrouck:

“Although, to date, there have been no persons in Illinois under investigation for suspected Ebola that has warranted testing, we understand there is concern and people have many questions. IDPH will be setting up a hotline to help provide answers to questions the public may have, including who may be infected with Ebola, how is it spread and what can I do to avoid it.

“After this morning’s announcement of a second health care worker at a Texas hospital who provided care for the first U.S. Ebola victim preliminarily tested positive for Ebola, I would like to reassure Illinoisans that IDPH continues to work closely with hospitals and local health departments to provide guidance to quickly identify any potential cases of Ebola and contain any possible spread.

“The situation in Texas is being investigated to determine how the transmission of Ebola occurred. Information learned by hospital, state and federal officials will be used to inform our efforts in Illinois to help prevent a similar situation here.

“We will continue to communicate with the public and will report any suspected or confirmed Ebola case in Illinois.”

2. Indiana

See the Indiana Ebola Info Webpage

In Indiana, Governor Mike Pence has announced that his office, working with the Indiana Department of Health, will be publishing a webcast for Indiana medical providers (doctors, nurses, etc.) on how Indiana is prepared for the Ebola virus. From Governor Pence:

“At this time, we have no reported cases of Ebola Virus in Indiana. However, there is no doubt that the Ebola Virus has been a cause for international concern and is a growing concern here in the U.S., now more than ever,” said Pence. “In Indiana we have successfully managed emerging diseases before, most recently, the H1N1 Pandemic Flu in 2009 and the first U.S. case of Middle East Respiratory Syndrome earlier this year. The professionalism, dedication and medical expertise demonstrated by our public health and healthcare community during these and other outbreaks gives me confidence that we are prepared to effectively respond to Ebola in our state, should we get a case.”

You can watch the 57 minute video here.

 

 

Old Tires Can Cause Serious Accidents and Even Death

October 14th, 2014 by admin

Most people know to check their tires for tread wear and cracks or slow leaks. It’s risky to drive on bald tires, you can blow out while driving at high speeds and crash. However, many people are not aware that tires age, and even if you don’t drive your car that often and the tires look great tread-wise, they still may be dangerous to have on your vehicle.

In fact, news reports are that the one-car crash that killed actor Paul Walker of “Fast and Furious” fame was caused, at least in part, by the aging tires on the Porsche Carrera that crashed.

According to the Los Angeles Times, the California Highway Patrol found that the fact that the Porsche’s aging tires may have contributed to the crash by lessening the drivability of the car, especially at high speeds, as well as the ability of the driver to handle the sports car on the road.

 

Tires Age Over Time

The truth about tires is that they are made of rubber, and just like rubber bands, the rubber will age and deteriorate. Even if the tires set in a warehouse and never get put on a vehicle, after so many years they will be useless.

If your car has old tires, then you may be driving with a dangerous condition. The same is true for other vehicles on the road: that big rig or semi truck driving on the Interstate next to you may be a moving safety hazard if those tires are old on that huge truck.

Tires that are sold with higher mileage ratings may age slower than tires with lower mileage because the more expensive tires will have chemicals added to them that slows the rubber’s deterioration and gives the higher mileage tires more time on the road before they age out.

However, according to the National Highway Traffic Safety Administration (NHTSA), there is no set standard for when tires need to be retired from use for being too old. You cannot find a table on the internet, for instance, that will list when specific makes and models of tires are too old to have on your car.

Weather Conditions and Aging of Tires

It is known that tires exposed to hotter climates will age faster. For those who drive vehicles in the southern United States, their tires will age faster than those driven in our part of the country, for instance.

Why? The heat will accelerate the deterioration of the tire. This is true even if the tire is your spare, setting unused in the trunk of your car or hoisted onto the back of your SUV.

Car Manufacturer Recommendations

Car makers include recommendations for the time to replace tires in their owner manuals. For example, Ford Motor Company has a 6-year tire replacement recommendation, regardless of tread wear, for its cars. From the Ford website:

Age

If a tire is more than 6 years old, it is generally in need of replacement. Tires degrade over time, even when they are not being used. Heat caused by hot climates or frequent high loading conditions can accelerate the aging process. You should replace the spare tire when you replace the other road tires due to the aging of the spare tire.

Replacing Your Tires

Only use replacement tires and wheels that are the same size and type (such as P-metric versus LT-metric or all-season versus all-terrain) as those originally provided. Use of any tire or wheel not recommended by Ford can affect the safety and performance of your vehicle, which could result in an increased risk of loss of vehicle control, vehicle rollover, personal injury and death. Additionally, the use of non-recommended tires and wheels could cause steering, suspension, axle or transfer case/power transfer unit failure.

It is recommended that the two front tires or two rear tires generally be replaced as a pair.

 

 

Doctors getting Big Money from Big Pharma

October 9th, 2014 by admin

For several years now, ProPublica has been investigating how much money is being paid to doctors by the big drug makers. It’s a lot. For details, check out the ProPublica webpage with several articles dealing with their investigations at “Dollars for Docs.

Search for Doctors Getting Paid by Health Care Companies

1.  You can search for Indiana and Illinois health care providers found to be recipients of payments from these health care companies by ProPublica online here.

 

2.  However, this month another major resource for patients and their families to learn how much drug manufacturers are paying health care providers, particularly their own personal physician, debuted as the “Open Payments” website.

The Open Payments website is published and maintained by the federal government and has been created in accordance with a portion of the Affordable Care Act (“Obamacare”) as the federal “Physician Payment Sunshine Act.”  This new federal law has forced the companies to reveal to the authorities what they are paying to health care providers and to identify who’s getting the money.

These companies are paying doctors to use their products.

Drugs, medical devices, etc. — providers have been getting bonus money for choosing to use one health care company’s stuff over another.

Of note, the Open Payments site isn’t complete yet — over $1 billion in payments over five months last year (August – December 2013) isn’t included yet. Entries that are being challenged by the health care providers aren’t being made public yet, either.

However, over 500,000 doctors have been included so far, with a physician’s name being listed on Open Payments if he or she has shown up once on a company payment list.

Bottom line, doctors are getting money from companies to use their stuff. How widespread this practice is with the health care community, and has been over the past few years, appears to be HUGE according to ProPublica — but the database at Open Payments is far from complete and giving us a complete picture of this situation.

Tracy Morgan v Walmart: Lesson in How Injury Victims get Victimized in Lawsuits

October 7th, 2014 by admin

This past week, a great example of how personal injury lawsuits progress was provided by beloved American comedian Tracy Morgan, as his accident case against Wal-Mart moves forward.   The case is far from trial and no jury has been picked, but already the defendant is attempting to limit its liability by pursuing defenses against the victim.

Comedian Tracy Morgan (2008)

Image: Alex Erde, Wikimedia Commons

This happens all the time.

The defendant and his insurance carrier have the goal of avoiding any liability for the accident, or finding arguments that their legal responsibility should be far less than 100% liable for the damages that the victim has sustained.

Defendants will urge all sorts of things in the injury lawsuit fight.

There are defenses like the plaintiff filed his claim too late (i.e., failed to meet the deadline set by law in the statute of limitations), or that the plaintiff wasn’t as hurt as he claims to be (e.g., conflicting medical expert testimony).

However, particularly shocking is when the defendant offers a defense that seems so uncaring and callous as an argument that the injury victim is responsible for what has happened to him.

Sadly, this kind of argument happens a lot: slip and fall victims, for instance, will often hear defendants argue that just because they fell, they’ve got to be partially at fault (regardless of how blatant the slippery surface negligence may be).

It’s done for a reason. If the percentage of fault can move from 100% toward the defendant, to even 80% fault on the part of the defendant, then the defendant is looking to find a way to pay less in damages, if any at all. (This will depend upon how “comparative fault” is handled under the law of the state where the accident happened.)

In Tracy Morgan’s situation, reports are that he may never be able to take on a TV role, do a film, or entertain on a stand-up comic stage because of the traumatic brain injuries he suffered in the crash between the Wal-Mart truck and Mr. Morgan’s limo van.

Flying in the face of this news is the defense argument being advanced by Wal-Mart that Mr. Morgan is at fault in the accident because he was not wearing a seat belt at the time of the crash.

Wal-Mart may be posturing for a comparative fault type of defense that is perfectly legal. However, it’s a great lesson to all plaintiffs in accident cases: expect to defend your actions, and in cases where there is media coverage, consider that potential jurors are reading all this and taking note, too.

Technology To Fight Against Distracted Driving Traffic Accidents

October 2nd, 2014 by admin

There seems to be a growing industry dedicated to finding ways to use technology to combat serious injuries and deaths from traffic accidents, and we’ve already seen how gadgets and gizmos are being placed in trucks to monitor the behavior of truck drivers, and into cars to prevent drunk drivers from operating their vehicles.

However, due on our roads in the near future are even more advanced forms of technology. These are focused upon stopping distracted driving on our roads, a serious and growing problem these days with all the popularity of smartphones, on-board mapping devices, etc.

Image

1. General Motors Building Cars That Can Monitor Driver Distractions

First, the largest car maker in the United States has announced its newest campaign: GM is about to start selling cars that have internal devices to check the driver’s eyes and the driver’s head movements. From monitoring where the driver is looking and how the driver’s head is positioned, the new GM cars reportedly be able to determine if the driver is distracted and warn him or her of the danger.

GM isn’t making this gizmo. General Motors is buying around 500,000 of the distracted driving tracking devices from Takata, the tracking device manufacturer.

 

2. Police Gun Will Be Able to Zap Cars, Locate Distracted Drivers

A Virginia gizmo maker has announced a new device that it will be selling to law enforcement around the country: the “Sniffer Sleuth” which is a “texting gun.” This gizmo allows a police officer to point it at a car driving down the road, and tell if the driver is using a phone to make a call, or to text, or to transfer data (say get directions from a map).

For states like Indiana and Illinois, where there are different laws for texting versus talking on the phone, this gizmo will be very helpful for local police to determine if someone is violating traffic laws or not, since the Sniffer Sleuth can report who is texting vs who is talking on their smartphone.

Don’t expect the country’s men (and women) in blue to be using these routinely any time soon, however: there are still privacy hurdles for the gizmo to jump before the Sniffer Sleuth becomes part of the US police officer’s tools of the trade.  They are for sale, online, however – you can purchase one for around $1500.00.

College Softball Bus Crash with Tractor-Trailer Truck: Another Tragic Truck Accident

September 30th, 2014 by admin

Last week, a happy bunch of college kids who played on their school’s softball team were having lots of fun as they were traveling back home to North Central Texas College from a scrimmage with Southern Nazarene University in Bethany, Oklahoma. It was around nine o’clock on a Friday night, after dark but not that late. They were about an hour’s drive south of Oklahoma City, and halfway home.

Suddenly, a semi-tractor-trailer jumped the median of the interstate, slammed into the softball team’s bus, and just kept going. The big rig ended up on the side of the road. It took the police almost an hour to find the semi-tractor-trailer truck.

Sadly, the truck – bus crash left 4 students dead there at the scene of the accident. Another student died while being treated at the hospital. Fifteen other bus passengers were also injured in the crash, with the truck driver being hurt but expected to be okay.

The accident is being investigated by law enforcement as a potential homicide case.

We’ve written before about how police will sometimes file homicide or murder or manslaughter charges against a truck driver when there is a fatal truck accident. It’s been done before, and more truck driver arrests will happen in the future.

Justice In a Fatal Truck Accident

However, in cases like this, the justice for these crash victims and their families must include lawsuits filed and claims made by these victims and their loved ones against those responsible for this tragedy. Fatal trucking accidents like these will include potential claims against several possible defendants, including:

  • The trucking company who is responsible for their employee
  • The truck driver for his failure to drive responsibly and safely
  • The truck manufacturer or parts maker if there turns out to be a parts problem or design flaw (did the brakes jam? Did the steering freeze? etc.)

Truck Driver is “Deadliest Job in America”

Today, the British news is reporting that being a truck driver in the United States today is the “deadliest job in America.” The report comes with statistics like:

  1. Nearly 4,000 Americans die in large truck crashes each year, and driver fatigue is a leading factor
  2. In 2013, more than 700 commercial drivers died on the job
  3. Nearly 50 per cent of truckers interviewed as part of a federal study said they had dozed off behind the wheel
  4. A recently proposed change to federal regulations would let drivers put in as many as 82 hours a week on the road

In the Oklahoma softball team bus crash, the driver of the school bus was not injured and the semi truck driver was hurt but will survive the crash. Five young people died. It’s time that more news coverage was given to the seriousness of trucking accidents in this country.

Truck crashes, particularly ones like these where so many are hurt and so much tragedy results, need to be on everyone’s front page.

Truckers Want FMCSA to Stop Publishing CSA Scores to the Public

September 25th, 2014 by admin

Around three weeks ago, 10 different trucking organizations (e.g., groups like the American Trucking Association and the Owner-Operator Independent Drivers Association) got together and sent a joint request in a formal letter to the Department of Transportation.’

You can read their letter here.

Why? What’s up with this meeting of the minds of the big trucking interests here in taking the time and energy to hammer out a united correspondence to the Federal Government? Well, it’s not a big surprise to learn that it’s about federal regulations of truck drivers.

Specifically, all these trucking groups are asking for the same thing: they want the federal government to stop sharing with the general public all the CSA scores. The CSA, as you’ll recall if you follow our blog, is the Compliance, Safety, Accountability (”CSA”) program overseen by the Federal Motor Carrier Safety Administration (FMCSA). It’s been changed a lot in the past few years, and the CSA scores are tallies of how carriers are assessed by the feds according to the program’s requirements.

The Trucking Letter Argues That the CSA Scores Aren’t Reliable Regarding How Safe a Carrier May Be

The letter argues that the public shouldn’t see these CSA scores. They are asking that the CSA public scores be made NON-PUBLIC.

So you and I cannot see them.

Why? They argue that the CSA scores don’t jive with how safe (or dangerous) a carrier may be, but the general public might assume that this is true.

They back up their argument with a report issued by the Government Accountability Office (GAO) report which states FMCSA “… lacks sufficient safety performance information to reliably compare them with other carriers,” and that the current CSA system is biased against small carriers.

From the letter:

Though accurate safety measurement scores can have numerous positive impacts, as discussed above, inaccurate scores, like those assigned to carriers by the CSA SMS, have detrimental and counterproductive consequences. Naturally, scores that erroneously paint otherwise safe and responsible carriers as more likely to be involved in a crash are harmful to those operations.

But since scores are based on comparative performance, carriers that actually have a pattern of crash involvement or of committing violations that correlate to crash involvement may subsequently be portrayed as having better performance. Of course, suggesting that such carriers are actually safer, by comparison, will have the unintended effect of driving either passengers or freight to them and is poor public policy.

Given the many identified data sufficiency and reliability issues outlined by the Government Accountability Office, we urge you to direct FMCSA to remove carrier’s SMS scores from public view. Doing so will not only spare motor carriers harm from erroneous scores, but will also reduce the possibility that the marketplace will drive business to potentially risky carriers that are erroneously being painted as more safe.

What will the federal government do here? We’ll see.

Should the CSA scores NOT be available for you and I to see?

Motorcycle Accidents in Indiana: Consider Just This Month ….

September 23rd, 2014 by admin

 

Motorcycle accidents are usually accidents that result in serious injuries and sadly, it’s usually the motorcyclist who is severely hurt in the crash. It’s understandable: the realities of riding a motorcycle for its freedom of movement and access to the feel of sunshine and rushing wind also make the rider vulnerable to serious bodily injury even in a slow-speed accident.

Add to this the current Indiana laws regarding helmets (read our earlier posts on motorcycle accidents for details, see the right sidebar) and you can understand why our offices work hard for justice with clients and their families who have been the victims of a serious motorcycle accident here in Indiana.

One thing that many folk here may not realize is that motorcycle accidents aren’t that rare in our neck of the woods. Our winters may be severe enough to put convertibles and motorbikes into garages and protective storage but for much of the year, bikers are on our roads, enjoying our scenic roadways.

One Serious Motorcycle Accident Per Week So Far This Month in Indiana

Consider these three accidents, just in September 2014, with our sincere condolences to those hurt in these crashes and their loved ones. Indiana drivers as well as Indiana motorcyclists need to be aware that we’re at a bigger risk of accident and injury here than many of us realize.

1. Indianapolis Accident — September 11

Indianapolis saw another tragic traffic fatality on September 11, 2014, when a Chevy Tahoe collided with a motorcycle at the intersection of 38th and Richardt Avenue. The driver of the motorcycle and the passenger in the SUV both perished in the accident.

2. Brown County Accident — September 14

On Sunday, September 14, 2014, near to the entrance for the Brown County State Park Horseman’s Camp, two people perished when the motorcycle they were riding veered off the road, flipping as it crashed into a tree trunk lying alongside the side of the road, and throwing both the driver and his passenger off the bike. Neither accident victim had a helmet; both died immediately from head injuries sustained in the crash.

3. Fort Wayne Accident — September 19

A motorcyclist driving along west on Interstate 469 as it merges into I-69 near Dupont Road failed to keep to the roadway and left the highway itself, crashing into the ravine alongside the interstate. Miraculously, he survived the crash. He was not wearing a helmet.

Concussion Warning Symptoms — Watch Out for These Signs of Brain Injury

September 18th, 2014 by admin

Playing football or soccer or hockey, as well as baseball or basketball, where a player can suffer a sudden, strong hit to the head can mean a life-altering brain injury where the aftermath may not reveal itself for several years. This is especially true if there is not immediate treatment of the head injury (and there may not be if the student or player denies, ignores, or refuses to be treated at the time of the hit).

 

Heads Up Concussion in high school sports.

 

Accordingly, parents, teachers, coaches, and others need to recognize the symptoms of minor brain injuries and concussions in players and athletes.

These include:

1. From the American Association of Neurological Surgeons (AANS) comes the warning that mild brain injuries and concussions are most often determined by (1) how they happened and (2) the symptoms that manifest at the time.

The neurosurgeons look for 3 things which are signs of mental confusion:

  • Inability to maintain a coherent stream of thought
  • A disturbance of awareness with heightened distractibility
  • Inability to carry out a sequence of goal-directed movements

These doctors also warn everyone that if you see any of these symptoms in a player or athlete, then they need to be taken to a doctor for evaluation of brain injury:

  • Prolonged headache
  • Vision disturbances
  • Dizziness
  • Nausea or vomiting
  • Impaired balance
  • Confusion
  • Memory loss
  • Ringing ears
  • Difficulty concentrating
  • Sensitivity to light
  • Loss of smell or taste

2. The Mayo Clinic points out that mild brain injuries and concussions may not have any immediate symptoms. Children and adults may suffer permanent injury but not realize it at the time of impact — and the brain may reveal its injuries in hours or days to come. These symptoms can last for a long time — weeks, even months.

At the time of the injury or within a day or two of it, look for:

  • Headache or a feeling of pressure in the head
  • Temporary loss of consciousness
  • Confusion or feeling as if in a fog
  • Amnesia surrounding the traumatic event
  • Dizziness or “seeing stars”
  • Ringing in the ears
  • Nausea
  • Vomiting
  • Slurred speech
  • Delayed response to questions
  • Appearing dazed
  • Fatigue

Within several hours of the incident or even days after the injury, look for:

  • Concentration and memory complaints
  • Irritability and other personality changes
  • Sensitivity to light and noise
  • Sleep disturbances
  • Psychological adjustment problems and depression
  • Disorders of taste and smell
  • Symptoms in children

3. The CDC warns that brain injuries can cause death and this may not be immediate. Traumatic brain injuries and concussions can kill people hours or even days after they have been hurt.

From the CDC, seek emergency medical treatment for these symptoms:

  • Headache that gets worse and does not go away.
  • Weakness, numbness or decreased coordination.
  • Repeated vomiting or nausea.
  • Slurred speech.
  • Look very drowsy or cannot be awakened.
  • Have one pupil (the black part in the middle of the eye) larger than the other.
  • Have convulsions or seizures.
  • Cannot recognize people or places.
  • Are getting more and more confused, restless, or agitated.
  • Have unusual behavior.
  • Lose consciousness (a brief loss of consciousness should be taken seriously and the person should be carefully monitored).