The Injury Board Commentary - Wrongful Death - Most Commented

Colin Holst, 4 Remembered After his Tragic Drowning at Life Time Fitness

Jesse Guerra — Mon, 16 Jun 2008 17:21:16 GMT

According to an article in the Austin American Statesman, "Colin Holst might have been only 4 years old, but he could run like the wind." Words by his father described him as having the endurance of an olympic athlete.

Colin was pulled out of the pool at Life Time Fitness by Life Time lifeguards and was given CPR on friday June 13, 2008. Unfortunately, he passed away Saturday at Dell Children's Medical Center in Austin, Texas.

He had just graduated from pre-kindergarten at the Primrose School of Bee Cave. His father said he loved to play soccer and go to the beach and playing in the water. Our prayers go out to his family at this tragic time especially as this occurred father's day weekend.

Questions remain? What were the lifeguards on duty doing at the time Colin needed help?

The pertinent lifeguard rules are as follows; 1. 30 Second Rule-The Lifeguard surveys one extreme of his/her zone of responsibility to the other and back within a total of thirty seconds; 2. 10/20 Rule- Once the lifeguard identifies a potential incident (i.e. victim, hazard, risk), he/she must determine within ten seconds whether or not intervention is needed or required. If required, the lifeguard must be positioned in order to intervene within twenty seconds; and 3. 10x10 Reaction rule-The lifeguard must be able to intervene within ten seconds.

It's often the case that lifeguards on duty are often distracted by other people around the pool and are not actively following the rules they were trained to follow. We have all witnessed lifeguards talking to swimmers and others by the lifeguard stand.

No other information was released surrounding the immediate circumstances leading up to this tragic event at this time at Life Time Fitness.

We are left only with words from Colin's father, Jeffrey, "For the short time he was here, he impacted so many people, it's unbelievable, he's my hero."

Originally posted at InjuryBoard by Jesse Guerra

Drunk Driver Charged With Killing Buffalo Teen

Mike Bryant — Sun, 29 Nov 2009 21:17:00 GMT

Last week, I looked at the head on collision that killed a Buffalo High student on Wright County Road 35. At that time there were questions about how this could happen. The road is straight there. Why would a pickup cross the center line? Investigation has now disclosed that the truck was speeding, had no headlights, was in the wrong lane, and the driver had been drinking.

The Minneapolis Tribune captured the feelings of the family in the way you see so often in these case:

"It seems like each day we find out a little bit more about this," said Adam Hoglund, Kramnic's uncle. "It's hard not to be incredibly angry."

.................................

(The) family is anticipating the next day in court. "We'll be there every step of the way to see he gets what's coming to him," Hoglund said.

The driver has been charged with two counts of criminal vehicular homicide in the death.

Originally posted at InjuryBoard by Mike Bryant

Unethical Abortion Doctor Sued for PA Wrongful Death and Charged with Murders

Michael Monheit — Sun, 23 Jan 2011 07:03:03 GMT

This is the story of a 41-year-old wife and mother who spent her life in a third-world country only to come to America under a humanitarian resettlement program. Karnamaya Mongar, then died in Philadelphia as the result of worse than squalid third-world-like conditions at the hands of a greedy, depraved man calling himself a doctor and operating his clinic, the Woman’s Medical Society, like a house of horrors.

The Grand Jury’s factual report reads far worse than sordid fiction.

The doctor who was neither a board certified obstetrician nor gynecologist performed illegal late term abortions on women who did not understand the procedure or did not speak English. Payment was based on how far along the pregnancy was and how much pain killers were required.

Dr. Gosnell has a medical degree, but set up his clinic with unlicensed and untrained staff that routinely administered drugs but were not trained to handle drug interactions and life-threatening medical emergencies. Even if they knew how to handle such emergencies, the equipment was antiquated or broken.

The victim Mrs. Mongar received repeated unmonitored, unrecorded intravenous injections of Demerol, a sedative seldom used in recent years because of its dangers. Gosnell liked Demerol, because it was cheap. After several hours, Mrs. Mongar stopped breathing. When employees finally noticed, Gosnell was called in and briefly attempted to give CPR.

There was no life-saving defibrillator used because it was broken; nor did Gosnell administer any emergency medications that might have restarted her heart. After much crucial delay, the paramedics finally arrived, but Mrs. Mongar was probably brain dead before they were even called.

In the meantime, the clinic staff hooked up machinery and rearranged her body to make it look like they had been in the midst of a routine, safe abortion. Abortions at the Women’s Medical Society were anything but routine or safe. Procedures were executed by inducing labor to heavily sedated mothers, then killing the often alive and crying babies by snipping or severing their spinal cords. Fetuses lined the clinic in boxes and jars like eerie science project experiments.

Abortion is normally one of the simplest and safest medical procedures when done correctly by a trained staff and within legal limits of less than 24 weeks gestation. Even two of Gosnell’s staff chose to have their abortions elsewhere.

The paramedics were able to generate a weak pulse but because of cluttered hallways and a padlocked emergency door, it took more than 20 minutes to find a way to get Mrs. Mondar out of the building. Doctors at the hospital managed to keep her heart beating, but the abortion clinic’s staff failed to honestly inform how much anesthesia they had dosed.

The Pennsylvania District Attorney is filing criminal charges including seven first-degree murder charges against Gosnell for the deaths of infants.

Attorney Bernard W. Smalley of the Pennsylvania personal injury law firm Anapol Schwartz is filing a civil lawsuit on behalf of the Mongar family seeking punitive damages for the wrongful death of their matriarch.

“Our investigation is ongoing and we are seeking infromation from anyone who has knowledge of the circumstances surrounding The Women’s Medical Society and the abortion doctor Gosnell,” said Attorney Smalley. “This case is eerily similar to one I succesfully prosecuted more than 20 years ago. How this can still be happening today shocks the conscience. We will get to the bottom of this and hold accountable those who allowed this to happen.”

According to Mr. Smalley, more than 20 years ago he brought a case of medical negligence against Gosnell although the charges were less serious and the victim did not die although she suffered a serious, life-threatening infection. The insurance company paid the monetary damages. There was no loss of license; business as usual.

Bernard Smalley, Esquire has practiced law in Pennsylvania for more than 30 years, focusing his practice on helping the injured as well as family members of those who died because of medical negligence and other personal injury-related causes.

Originally posted at InjuryBoard by Michael Monheit

Death of a Firm Friend

Mike Bryant — Thu, 02 Jun 2011 11:51:15 GMT

It was with heavy hearts that we heard that my former partner's wife was killed in a car/bus collision in Wisconsin on Wednesday. It will be awhile before we find out all that happened, but right now it really doesn't matter.

I met Joan Bradshaw when I first started working at the Bradshaw Law Office back in 1991. She was never an employee, but she was around the Eden Valley office a lot as I grew up there. She often would answer the phone when I would call for John and if nothing else she was always a positive and friendly voice on the phone.

Joan will be missed by all of us. Even as John retired we would still see her from time to time as they would stop in the St. Cloud office. It's funny that she would chastise others for having offices that weren't clean and one day I asked her why she never said anything to me. She looked around my cluttered office and said, “Well, you're busy.”

It's odd with lawyers' wives that they sometimes seemed to get pushed aside at events because they aren't lawyers. Many of them handle that slight in different ways. Joan just never seemed to let it bother her and she just went ahead and did or said whatever she would have in any other situation.

She helped John and many of us with trials, hearings, and just figuring out how to present issues. She was there to run ideas by or to just let you know she was with you when cases didn't turn out as well. She said “That's Wonderful!” in a way that was so real and did make you feel it.

Many years ago she used to be the one who interviewed jurors for me after trials. I always appreciated how good she was on the phone with people and never sugarcoated the tough responses for me. I'm a better lawyer because of that help and I'm a better person from even the short talks that I had with her.

As a firm that does wrongful death work, we see these tragedies many times. It helps that there is a distance and that we didn't know the person before, but it makes a difference that we do get to know the family and do spend time trying to understand the loss. It still doesn't make it easier to see the photos and to talk about all of our losses.

Joan's family and friends are in my prayers and thoughts.

Arrangements have been set:

Visitation

Date:	June 05, 2011
Time:	4:00-7:00 PM
Location:	Williams Dingmann Family Funeral Home, 233 N. State St., Eden Valley, MN 55329

Date:	June 06, 2011
Time:	9:00-10:00 AM
Location:	Williams Dingmann Family Funeral Home, 233 N. State St., Eden Valley, MN 55329

Mass of Christian Burial

Date:	June 06, 2011
Time:	10:00 AM
Location:	Assumption Catholic Church, 464 N. State St., Eden Valley, MN 55329

Cemetery

Date:	June 06, 2011
Time:	11:00 AM
Location:	Assumption Cemetery, Eden Valley

Originally posted at InjuryBoard by Mike Bryant

What's A Death Case Worth in Alabama?

Jon Lewis — Thu, 04 Feb 2010 10:17:19 GMT

Does it matter if a car accident occurs in Alabama versus another state? In a big big way!!!! Why? Well, first because different states have different jurors and different beliefs on the values of these types of cases. But, more importantly, the law in Alabama regarding a death is different than every other state in the country. Yes, EVERY other state in the country.

How is it different? A car accident, industrial accident, medical malpractice incident, or any other incident in Alabama which involves a death is governed by Alabama's Wrongful Death Statute. The Wrongful Death Statute provides:

Section 6-5-410

Wrongful act, omission, or negligence causing death.

(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.

(b) Such action shall not abate by the death of the defendant, but may be revived against his personal representative and may be maintained though there has not been prosecution, conviction or acquittal of the defendant for the wrongful act, omission, or negligence.

(c) The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.

(d) Such action must be commenced within two years from and after the death of the testator or intestate.

(Code 1852, §§1940, 1941; Code 1867, §§2299, 2300; Code 1876, §§2641-2643; Code 1886, §2589; Code 1896, §27; Code 1907, §2486; Acts 1911, No. 455, p. 484; Code 1923, §5696; Code 1940, T. 7, §123.)

While this statute does not state damages are strictly punitive, the Supreme Court of Alabama has interpreted it that way, and the Alabama Pattern Jury Instructions clearly set forth the law:

Furthermore, any confusion on the part of the jury regarding the proper assessment of damages in this case should have been dispelled by the following charge given at the close of the arguments of counsel:

“In a suit brought for a wrongful act, omission or negligence causing death, the damages recoverable are punitive and not compensatory; damages in this type of action are entirely punitive, imposed for the preservation of human life and as a deterrent to others to prevent similar wrongs.

“The amount of damages should be directly related to the amount of wrongdoing on the part of the defendant or defendants. In assessing damages, you are not to consider the monetary value of the life of the child, for damages in this type of action are not recoverable to compensate the [family] of the deceased from a monetary standpoint on account of his death, nor to compensate the plaintiffs for any financial or pecuniary loss sustained by the family of the deceased on account of his death.”

(Emphasis added; substantially quoting Alabama Pattern Jury Instructions § 11.18.)

Quoting Atkins v. Lee, 603 So.2d 937, 942-943 (Ala. 1992).

Consequently, in Alabama, you cannot argue to the jury that they should compensate the family for the death of their father or mother. You can only argue that they can punish the person at fault. This is difficult if the other person simply ran a red light. It wasn't intentional. The same is true for the situation with Toyota. Toyota doesn't want to see people die as a result of the defect in its accelerators, but things like this happen, and a family should be compensated for Toyota's defect. They should not have to argue that Toyota should be punished because that can be an extremely difficult argument.

The 49 other states allow for compensation in wrongful death claims. They allow you to argue that a father who is killed had a life expectancy of 30 years, and as a result of his death, the family will lose that income.

What law do you think is better? Alabama's or the other 49 states? We'd like to know.

Originally posted at InjuryBoard by Jon Lewis

Tulsa Infant Killed by a Puppy

Jeremy Thurman — Sat, 02 Aug 2008 23:07:39 GMT

One of the most tragic dog bite accidents I have every heard of recently happened in Tulsa Oklahoma. Newsok.com is reporting that 2-month-old infant was attacked and killed after being mauled by a Labrador puppy, Authorities believe the infant was left unattended in a swing with the dog attacked.

I have seen and litigated several dog bite accidents. I have seen children hurt and mauled as well as grown adults. Usually these accidents seem to be the result of what most of us would consider more dangerous breeds such as pitbulls. That said, our prayers are with this family and this little child. We should all take a look and remember the dangers of leaving any child unattended with any animal no matter how unassuming the animal is.

Originally posted at InjuryBoard by Jeremy Thurman

Florida Slips in Health Ranking

Eddie Farah — Sat, 06 Dec 2008 11:57:00 GMT

Florida used to rank 41^st in states in terms of health, now that number has dropped.

Florida was No. 45 in the latest America’s Health Ranking. That represents a partnership between United Health Foundation, the American Public Health Association and Partnership for Prevention. Statistics in Florida come from the Department of Health.

The drop is at least partially attributable to the higher rates of uninsured people in Florida, and high incidences of infectious disease. On the flip side for positively affecting health is a low rate of air pollution and obesity. Also the number of folks who smoke has dropped by 8 percent.

Particularly upsetting is the number of children in Florida who live in poverty- that increased by 23 percent. And if you are black, you are twice as likely to have a low birth rate baby, than if you are a non-Hispanic white.

States were ranked by 22 health measures from infant mortality, to heart disease deaths, immunizations, violent crime, among other criteria. Unfortunately access to health care also falls along racial lines with 43.8 percent of Hispanics lacking health insurance compared to almost 18 percent of non-Hispanic whites.

While the healthiest state was Vermont followed by Hawaii, the states ranking lowest in the survey are all in the south - Texas, Tennessee, South Carolina, Mississippi and Louisiana.

The purpose of the report is to stimulate action by individual communities and public health professionals to improve the health of the population of the US. #

Originally posted at InjuryBoard by Eddie Farah

Washington Man Dies After Paramedics Diagnose Acid Reflux

Jonathan Nace — Thu, 04 Dec 2008 18:16:04 GMT

A 39 year old man collapsed and died in his home after paramedics responded to a 911 call and told him he had acid reflux disease.

Edward Givens died only six hours after his family had called the paramedics who told him he had acid reflux disease and should take pepto bismol. Paramedics in DC are required by protocol to transport any patient by ambulance to a hospital if the patient asks to go to the hospital said Alan Etter, a spokesman for D.C. Fire and Emergency Medical Services.

Lolitha Givens said the firefighters asked her son what was wrong, and the emergency medical technicians who arrived by ambulance checked his vital signs and performed an electrocardiogram, the results of which they said were normal.

The EMTs asked Givens whether he had eaten or had anything to drink that evening, and he said he had eaten a burger, Givens said. They told him and his mother that he probably was suffering from acid reflux and suggested he take antacid.

"Six hours later, my son was on the floor, dead," Lolitha Givens said.

This is not the first time DC Emergency Medical Staff has come under fire recently, as Cassandra Bailey died in 2006 from cardiac arrest when an ambulance took more than 90 minutes to arrive after being telephoned several times.

In January of 2006, former New York Times journalist David Rosenbaum was beaten severely in a street robbery, but emergency personnel labeled him drunk and considered him a low priority. He died two days later.

Unfortunately for all these people including the Givens' family, suing the District of Columbia can be a tricky process because of a powerful defense known as "the public duty doctrine." State officers, when acting in their state roles, are often considered immune for negligent acts. While the facts of this case may ultimately bypass that defense for the Givens' family, it presents a significant legal hurdle, if they choose to seek compensation.

Edward Givens was the father of two and worked as a counselor to youths who had been victims of domestic violence. He coached Little League baseball, youth football, and basketball as well.

Originally posted at InjuryBoard by Jonathan Nace

Bicycle Helmets Save Lives: Another Hit-and-Run Fatality in Santa Cruz

Claude Wyle — Tue, 12 Jul 2011 03:45:34 GMT

There are some basics to bicycling safety which most of us learned as children. So, why did some of us forget fundamental bicycle safety rules, as rudimentary as wearing a helmet? Would you let your child ride without a helmet? Then why is it less important to wear a helmet as an adult? Helmets are not just necessary for downhill mountain bikers traversing the single-track trails or for street racers. The bicycle helmet is a key piece of equipment you should not leave home without.

Why am I qualified to get on this soapbox? The simple reason is that I have for decades been representing cyclists after they have been in bicycle accidents. I have seen the difference in the injuries sustained in bicycle crashes and helmets really do make a difference. And the greatest difference I personally have observed is in the low to medium speed bicycle accident.

While we often feel like a bicycle ride on a path next to the beach is slow and safe, as soon as we mix bicycles and motorists on the same roadway, we now have a much larger potential for head injuries. Head injuries are the most common way for cycling to lead to death.

In a busy intersection shared by both cars and bicycles, such as on Old San Jose Road in Santa Cruz, another bicycle fatality where the cyclist was not wearing a helmut has occured.

Last week cyclist Noel Hamilton was involved in the second fatal hit-and-run accident involving a bicyclist in June in Santa Cruz. In this case, the driver actually returned to the location of the accident to cooperate with police, but it was too late for the cyclist.

There were other satety basics that were lacking in both of these hit and run accidents. Not only were the riders lacking head protection, but they also were missing lights and reflective gear. These accidents do more than point out the horrific hit-and-run issues with cyclists in Santa Cruz. They also demonstrate troubling statistics relating to rider safety. Sadly, Santa Cruz County’s rate of 74 accidents per 100,000 residents is double that of the statewide average.

Wrongful death can occur even in this laid back beach town, home of many surfers who ride bicycles while carrying their surfboards to the beach in one arm. With their minds on surfing, it may be tough to plan a safe ride to and from the beach.

The truth is that head injuries are usually catastrophic. Traumatic brain injuries dramatically affect the lives of brain injured people and their families. In many cases, these injuries leave individuals permanently disabled, or in need of months, and sometimes years, of rehabilitation and therapy. It is often important to consult with a California traumatic brain injuries (TBI) lawyer to make sure injured clients and their families have the resources they need to deal with these drastic changes.

About the author: Claude Wyle is an aggressive advocate for Bay Area bicyclists. Claude has decades of experience representing those harmed by the wrongful conduct of others, and, as a Bay Area bicyclist and accident lawyer, has fought to protect the rights of injured cyclists throughout his legal career. Claude is also an avid cyclist himself and member of the Marin County Bicycle Coalition, San Francisco Bicycle Coalition and Silicon Valley Bicycle Coalition.

"if it is predictable, it is preventable."

Originally posted at InjuryBoard by Claude Wyle

Michael Jackson's Doctors- Potential Liability For Prescribing Controlled Substances/Drugs-Analysis of California State Board of Medicine Regulations

Rick Shapiro — Thu, 02 Jul 2009 22:05:50 GMT

Michael Jackson's name is all over the headlines as the public is not only mourning the great, late singer/performer, but is virtually obsessed with the cause of his sudden death. One of the things police are clearly investigating is whether there was any wrongdoing by one of his personal California physicians. Now, rumors are circulating of Jackson using an alias to secure medications, and if any doctor facilitated such prescription, this could be a criminal law violation. Since Michael Jackson was in California, the issue of whether controlled substances or non-controlled medications were improperly or illegally administered by a doctor would be governed by the Medical Board of California as well as California State criminal law.

One of the Business and Professions Code sections in California states that

"No physician and surgeon shall be subject to disciplinary action by the Board for prescribing or administering controlled substances in the course of treatment of a person for intractable pain."

(Business and Professions Code Sec. 2241.5(c). Clearly, the State Board of Medicine allows a physician, such as Michael Jackson's physician, to administer controlled substances if the late singer suffered from intractable pain, but based on many first person reports of his last several weeks, it is dubious whether he suffered intractable pain. Diprivan is a medication/drug supposedly provided to Jackson and there are allegations that he may have been injected with this potent drug the day he died. Actually, no one knows what the toxicology results will show of Jackson's autopsy-everything right now is hearsay. [Update: I have been advised that this drug may not be a controlled substance, but more on that is discussed in a related article-see below].

Based on a position paper of the Medical Board of California in effect in 1994 and revised in 2007, it would be difficult to charge a physician for a violation of the Code of California based on prescribing a controlled substance for pain (autopsy results are pending) based on this provision also:

"A physician and surgeon may prescribe for, or dispense or administer to, a person under his or her treatment for a medical condition dangerous drugs or prescription controlled substances for the treatment of pain or a condition causing pain, including, but not limited to, intractable pain. (b) No physician and surgeon shall be subject to disciplinary action for prescribing, dispensing or administering dangerous drugs or prescription controlled substances in accordance with this section." Another portion of the State Board pain guidelines states that the above section "does not affect the power of the Board to discipline a physician and surgeon for any act that violates the law, including gross negligence, repeated negligent acts, or incompetence … prescribing on the internet; failure to keep complete and accurate records of purchases and disposals of controlled substances; writing false or fictitious prescriptions for controlled substances, or prescribing, administering or dispensing in violation of the pertinent sections of the Health and Safety Code.

My take is that an accidental overdose of a prescription medication in California (not commenting on North Carolina or Virginia) would not likely be a violation of the State Medical regulations/code, and especially given the position statements of the State Board of Medicine, it would take much more than an accidental overdose to charge one of Jackson's doctors with a state board regulation violation.

However, the issue of other possible criminal law violations, and medical malpractice causing a wrongful death, are wholly different issues. A doctor may be civilly liable for medical negligence, if this caused Jackson's sudden death. A doctor providing or injecting a drug that is not properly prescribed for the conditions Jackson suffered may have all kinds of liability. Also, rumors are circulating about Jackson using aliases to obtain drugs, but these rumors have not been attributed to any named source. Any doctor who knowingly facilitated that type of a scheme has potential criminal liability.