Colorado Personal Injury Blog - Miscellaneous

Colorado Teen in Need of Kidney Transplant

Darin Schanker — Thu, 30 Oct 2008 17:24:52 GMT

In the summer of 2007, Boulder teen Kelsey Crider was diagnosed with Medullary Cystic Kidney Disease during a routine pre-college medical exam.

Since then she has, due to medical complications, suffered from two failed transplants; one from her father and the other from a dear family friend. Kelsey now undergoes a four hour long blood cleansing dialysis treatment three days a week while she attends college in Boulder.

Now the Crider family is expanding their search to find a suitable kidney for Kelsey. Because of her complex immune system, her need for a new kidney is greater than ever and with the waiting list extending to several years, time is not on her side. The family and her doctors hope to find several potential donors, who are in good health, have blood type O and have the time and inclination to see the process through. There is no risk or cost involved at this point.

For those who have it in their heart to be tested, there is a donor coordinator from University of Colorado Hospital in Denver by members of their Kidney Transplant Teaml who will keep all information confidential. While it is preferable to be tested here, for those who do not reside in Colorado, arrangements can be made to be tested at a facility in or near their hometown.

A year after donating one of his kidneys to his daughter, Steve Crider is in perfect health and is open to answering any of your questions at 303-530-2929 or kidney4kp@hotmail.com.

To learn more about Kelsey’s story and challenges go to http://kidney4kp.com.

Originally posted at InjuryBoard by Darin Schanker

Utterly Un-American - Are You Really Innocent Until Proven Guilty?

Darin Schanker — Tue, 12 Aug 2008 13:05:51 GMT

I know, for a fact, that if you google my name there are four or five of my counterparts that spring up. And there are some odd similarities that spring up, there is another Nathan Swanson in Colorado, two who went to colleges that I considered. I’ve never met any of them, but the fact that there are a number of people with the same name and some similarities to my life is always fascinating.

Fascinating, till it turns problematic. It seems that the Denver Police Department has a little problem with mistaken identity, and the ACLU has filed a federal lawsuit, demanding the city fix a broken system where the police throw people who are clearly not the criminals in jail. And I mean clearly, like not fitting the description of the accused, or not having the tattoos and known features of the accused, or having different names.

Driving to work today, I was listening to a segment about this very case on the news, and I heard a Denver official state, and I’m paraphrasing, something to the effect of that there needed to be a balance between ensuring that innocent people are not hassled and guilty people are not released. Except there is no balance; there are basic precepts of our justice system that are being ignored here. Chief among them “innocent till proven guilty” and “rather 100 guilty men go free then 1 innocent be punished.” The DPD seems to think that once they have someone, then it is wrong to let that person go until every doubt is removed as to their identity. But that is just the opposite of what the police should be doing, they should not be arresting people unless they have no doubt what so ever that this

is the person they want. To do anything else is, and I say this with only a little bit of melodrama and hyperbole, utterly un-American.

Nathan T. Swanson
Summer Intern
JD Candidate, 2009
University of Denver

Originally posted at InjuryBoard by Darin Schanker

A New Supreme Court Decision: Forfeiture by Wrongdoing Explored Further

Kyle Bachus — Fri, 27 Jun 2008 17:09:15 GMT

A defendant has a constitutional right to confront a witness that is accusing him. The basic rule is that prior statements cannot be used unless the defendant has had a chance to cross exam the witness. There are two exceptions that have been recognized: if the statements are made as the witness is dying or that the defendant forfeits his constitutional right by wrongdoing.

Forfeiture by wrongdoing refers to when the witness is detained or kept by means or procurement of a defendant from testifying. Justice Alito wrote the opinion in Crawford which held that a defendant could not keep a witness from testifying and then have prior statements excluded. However, in Giles v. California , No. 07-6053, the Court further interpreted this exception. The interpretation of the word procurement can mean just that the defendant caused the absence, but can also mean that it is limited to causing that is designed to bring about the result procured.

The Giles opinion held that the defendant did not detain the witness with the design to keep the witness from testifying. This is true since the defendant is on trial for the murder of his girlfriend, who is the witness. She had told police that the defendant had threatened to kill her when he beat her 3 weeks prior to her death. The Supreme Court decided that since he did not kill her to keep her from testifying, it violated his constitutional right to confront the witness to have her statements to the police admitted into evidence of trial.

It is understandable to need to keep interpretations narrow so not too be so over-inclusive as to deteriorate the defendant’s constitutional rights. Constitutional rights are important and should not be sacrificed. However, the distinction that he didn’t kill her to keep her from testifying does not sit well with me as a reason that he has not forfeited his right of confrontation. He is still the reason she is not able to testify. He killed her, which I see as a wrongdoing.

A post by Lauren Altdoerffer, created when the Supreme Court granted certiorari, posed the question whether the Court would follow the defendant’s assertion that the forfeiture by wrongdoing does not apply because he did not kill with the intention to silence her testimony or follow the “maxim” in Reynolds v. US that a defendant cannot benefit from his wrongdoing. The answer appears to be the former.

Erica Baasten

Summer Intern 2008

J.D. Candidate 2010

University of Colorado

Originally posted at InjuryBoard by Kyle Bachus

Department of Justice Hiring Interns Based on Talent or Politics?

Darin Schanker — Fri, 27 Jun 2008 11:12:24 GMT

As a fairly good student attending a great law school, I would like to believe I could hold my own against any other law student in the country. But if, before an interview for a highly competitive and prestigious position, I began to chat with a another interviewee who happened to mention that he was at the top of his class at Harvard, was involved in impressive extracurricular groups, and was fluent in a highly valuable language, I would probably sigh, turn around, and walk straight out the door, thankful that at least I didn’t waste my time.

But if this interview happened to be for an internship or a spot in the Honors Program with the Department of Justice, all I would have to do is put the magic words “Republican” or “Federalist Society” on my application, and voila, I’ve moved to the top of the list. And if my Ivy League colleague made the mistake to write “fluent in Arabic” and “member of the Council on American Islamic Relations,” I would likely become be a shoe-in.

This is how some of the most important positions are being filled in our Justice Department, a June 24 report disclosed. Enormously qualified young law school students and recent graduates are not even given the chance to interview for positions in the Department’s esteemed Summer Law Intern Program (SLIP) and Attorney General’s Honor Program, due to political partisanship and polarization. At least one applicant screener was told to weed out the “wackos and wack jobs” who I’m sure regularly graduate with honors from elite law schools and seek to work comparatively low-paying jobs in the civil service.

And these “wackos?” Membership of the “liberal” American Constitution Society will apparently earn you that label. So will working for “wack jobs” like past and future presidential candidates Hillary Clinton, Chris Dodd, and Dennis Kucinich, or writing a newspaper editorial opposing the nomination of Samuel Alito to the Supreme Court. All are evidently enough to get the even most qualified applicant’s resume thrown into the garbage bin.

Look, I understand that presidents have the right and responsibility to shape the form and direction of the government, and I’m actually heartened to hear that someday I could possibly be competitive with the graduates of the elite schools, but this is ridiculous. Career attorneys at the Justice Department outlast presidents and political trends. We need the most qualified and dedicated people to staff these jobs, and the unfair and partisan manner that they are being staffed discourages the best and the brightest on from even applying. The scandals that have recently tarnished the DOJ , closely followed by New York attorney Scott Horton, illustrate the perils of politicizing governmental departments best independent. Let’s hope that the next president, Republican or Democrat, is able to restore the Department’s prior luster.

Thomas Connell
Summer Intern 2008
J.D. Candidate 2010
University of Colorado

Originally posted at InjuryBoard by Darin Schanker

Former justice O'Connor urges changes in judicial elections

Kyle Bachus — Tue, 24 Jun 2008 19:25:28 GMT

When Justice Sandra Day O’Connor spoke to CU law students this April, she praised Colorado for being one of the few states in the country that has done away with electing state court judges, choosing instead to have them appointed by judicial nominating committees. Justice O’Conner’s belief that popular election of judges leads to a politicization of the judicial process, leading to less independent and impartial decision-making. With special interest groups donating large sums to campaigns and voters generally unaware of judge’s professional abilities, it is little wonder that the United States is one of only a handful of places that utilizes a political ticket for choosing worthy judges.

Justice O’Connor’s concerns are pointedly illustrated by the recent campaign for a Supreme Court in my home state of Wisconsin. In a campaign that cost $5 million, “a small-town trial judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist.” The idea that this process lends itself to healthy judiciary by making judges accountable to public opinion, is foolish because 1) the public control over the process is illusory: most voters aren’t making informed decisions, but instead relying on misleading or outright false advertisements like the above, designed and paid for by special interest groups and 2) insulating judges from often capricious public opinion allows them to maintain a distance and independence crucial to well-functioning judiciary.

The co-opting of the very worst aspects of our partisan political process has lead to predictable results. The University of Chicago “found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.”

If we as Americans decide that we will prize quantity over quality, as it appears we do, we will get the judiciary we deserve, and our society will be the worse for it.

Thomas Connell

Summer Intern 2008

JD Candidate, 2010

University of Colorado

Originally posted at InjuryBoard by Kyle Bachus

The Fair Act – How Does It Effect Colorado Consumers?

Kyle Bachus — Thu, 12 Jun 2008 04:00:00 GMT

"Fair Accountable Insurance Rates Act," also known as the FAIR Act, claims to provide easy access to health and automobile insurance coverage for all Coloradans and create new reporting requirements for the insurance companies.

Obviously, the raw effect on consumers without this requirement is easy to see. Multi-billion dollar insurance companies could and probably did what they pleased without any recourse or consequences, even if it meant offering unaffordable coverage.

The Fair Accountable Insurance Rates Act eerily resembles the Sarbanes Oxley Act passed by Congress in 2002, in an effort to restore faith in the accuracy of corporate financial audits and eliminate future Enron's and WorldCom's. Basically, Sarbanes Oxley serves as a watchdog over corporations registered with the Securities Exchange Commission.

It all sounds good for consumers, doesn't it? Unfortunately, Sarbanes Oxley has been criticized for a few weaknesses, some of which may likely happen as a result of the FAIR Act. For example, costs to a company to implement the regulations take time and money away from the consumer product, especially in smaller companies with fewer resources. Also, in a real world context, employees hired by a corporation to essentially "whistle-blow" to the SEC for corporations' willfully withholding material information have few incentives to tattle tale, for fear of discrimination or demotion.

As for the FAIR Act, some questions come to mind. What if an insurance company's rate is currently high, will they go through the trouble required by the Act to lower the rates? If a company does go through all the trouble, the commissioner of insurance still has the authority to declare a rate is too low, or "inadequate." And, who is this insurance commissioner with all the power? Is he or she a neutral decision maker?

Patricia-Anne Tom, of the Insurance Journal, brought light to the potential effects of the FAIR Act. Insurers were understandably opposed to the bill. Kelly Campbell, the regional manager for Property Casualty Insurers Association of America (PCI) sees the FAIR Act as a “classic example of over-regulation.” PCI says the prior approval regulatory system and new reporting requirements will add costs and delays without providing any consumer benefit. Campbell also adds that establishing prior approval of prices will preclude companies from adapting to changes in the market and this process will serve only to hurt consumers. Campbell claims the FAIR Act gives the commissioner of insurance some very broad powers.

As for whether Campbell’s insights are true, Colorado must wait and see. One thing is for sure; insurers' have a significant load of work to do in the future.

Niki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Originally posted at InjuryBoard by Kyle Bachus

The Fair Act - Is this Colorado's Version of the Sarbanes Oxley Act for Health and Auto Insurers?

Kyle Bachus — Tue, 10 Jun 2008 17:35:12 GMT

A new Colorado regulation is hanging over the heads of Health and Automobile Insurers-and we call it the "Fair Accountable Insurance Rates Act," also known as the FAIR Act.

This new Act claims to provide easy access to health and automobile insurance coverage for all Coloradans and create new reporting requirements for the insurance companies.

Authored by local Democrats, Rep. Morgan Carroll (Aurora) and Sen. Paula Sandoval (Denver), and approved and signed by Governor Bill Ritter on June 5, 2008, the Act promises what appears to be a good thing...right?

Colorado rates are said to be the 7^th most expensive in the country, and the increasing rates combined with the declining coverage surely sparked this legislative change, according to Rep. Carroll.

After much thought, the general assembly has agreed that insurance rates should not be excessive, inadequate, or unfairly discriminatory. In order to achieve this goal, certain insurance rates will now be subject to pre-approval, based on established benefit ratio standards, by the commissioner of insurance.

In an effort to provide accessible and affordable health and automobile coverage, the Act requires each insurance carrier to file with the commissioner of insurance a detailed description of its rating and renewal practices, and such information to be public when filed.

The Act also requires each insurance carrier to file annually with the commissioner the number of lives insured in the previous year, as well as requires requested rate filing increases for health and automobile insurance to be submitted to the commissioner of insurance at least 60 days prior to the proposed implementation date.

Although the Act allows the rates to be implemented if the commissioner of insurance does not approve the rates within the 60-day period, it also authorizes the commissioner to disapprove rates upon later review.

The commissioner of insurance is required to disapprove rates if certain conditions apply and insurance carriers must report to the division of insurance if specific reasons apply to an increase in rates for health and automobile insurance. The division of insurance is required to track such information and make it public.

Also, the Act prohibits persons from willfully withholding information that will affect rates or premiums charged or from giving false or misleading information and violation will result in penalty. And lastly, the Act requires that use of credit information for underwriting purposes be open to the public.

Before the Act was signed, Colorado law did not require insurance companies to justify their rate increase before it took effect.

Niki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Coming Up Next: The Fair Act – How Does It Effect Consumers?

Originally posted at InjuryBoard by Kyle Bachus

The Heparin Debacle Part Two - Chinese Officials Play the Blame Game

Linda Snyder — Fri, 25 Apr 2008 21:17:41 GMT

Chinese officials have finally acknowledged that there is a contaminant in heparin produced in China, but it is not connected to the illnesses. Ning Chen, second secretary at the Chinese Embassy claims, “We don’t have a strong evidence to show that is heparin or its contaminant that caused the problem.” Mr. Chen asserts that since the adverse reactions and deaths only occurred in the United States, the problems originated here.

According to the director of the FDA’s drug center, Janet Woodcock, German officials have found adverse reactions in dialysis patients who took contaminated heparin.

Dr. Woodcock continues, “Heparin should not be contaminated, regardless of whether or not that contamination caused adverse events. We are fairly confident based on the biological information that we have had that this contaminant is capable of triggering these adverse reactions.”

And we all know, the best defense is a good offsense…Chinese officials are now insisting that the United States’ request for American inspections of Chinese company’s be a two way street and China be allowed to inspect US facilities.

In light of China’s history of exporting toys containing lead, tainted rice, poisonous toothpaste, toxic pet food, tainted fish and now contaminated drugs, you would think China would be bending over backwards to fix this latest debacle. And you would think in light of the FDA’s track record lately (Vioxx ghosted studies, Vytorin and Zetia) they would make it a priority to hold China to a minimum safety standard.

So, what does the FDA do? They send Changzhou SPL, the Chinese plant that supplied the contaminated heparin to Baxter International a warning letter. The letter warned that the plant used unclean tanks to make heparin, that it accepted raw materials from an unacceptable vendor and that it had no adequate way to remove impurities. I’m sure that based on that warning letter, Changzhou SPL will never, ever, ever produce a contaminated product ever again.

China also claims that they can/will/have been testing heparin for contaminants. The FDA counterclaims China technology is not sensitive enough to detect the contaminant.

So, the blame game continues…

Up Next: The Heparin Debacle Part Three - The FDA Falls Flat

Originally posted at InjuryBoard by Linda Snyder

Parents Sue Bully. School District Next?

Linda Snyder — Thu, 27 Mar 2008 19:45:02 GMT

I find the whole concept of bullying to be interesting. You get a bunch of kids who decide that another kid is, for whatever reason, is a target for mental and physical abuse. And because bullying has been around since the time of cavemen, it's a somewhat socially acceptable behavior. The school district in Fayetteville, Arkansas may proclaim that they have a zero tolerance policy, but clearly they have chosen to look the other way in the case of Billy Wolfe.

I don't know Billy Wolfe. He may be the nerdiest kid on the planet. He may be the most annoying kid on the planet. He may be the nicest kid on the planet. But nobody should have to endure what he's gone through since grade school. I find it incredible that school officials actually tried to blame Billy for the bullies behavior, claiming "perhaps he brought this on himself."
There are video tapes showing the beatings Billy has suffered at the hands of these bullies, and yet no criminal charges have been filed. So, I guess that means in Fayetteville, Arkansas, if you're a high school student and your victim is Billy Wolfe, then it's not assault. It's just some high school kids having a little fun. If these were adults just having a little bit of the same kind of fun, they'd be in jail right now.

The Wolfes had tried talking to the parents of the bullies and appealing to school officials, to no avail. Now the Wolfes are taking a more aggressive approach, not only are they suing at least one of the bullies, they've also gone public, with Billy's story on the front page on the New York Times and an appearance on the TODAY show. Unfortunately, many times it takes filing a lawsuit in order to secure justice. It's my hope that they hold the Fayetteville school district accountable as well.

And people wonder why the tragedies like Columbine or the Virginia Tech shootings occur. I hope Billy Wolfe would never feel that desperate, but at least he knows his parents are willing to fight for him. What happened at Columbine High School and Virginia Tech will never be okay, but it's a little easier to understand. How much does a kid have to take before he snaps?

Originally posted at InjuryBoard by Linda Snyder

Free Drug Samples Lead to Higher Out of Pocket Expenses

Linda Snyder — Tue, 25 Mar 2008 20:50:45 GMT

According to a University of Chicago, patients who are given free samples spend nearly 40 percent more on their medications. My first thought was how could that be possible?

You're saving the cost of the medication and the cost of driving to the pharmacy. Common sense says if you're getting something for free it's saving you money, right?

A new study, published in Medical Care this week, questions the practice of pharmaceutical companies doling out over $18 billion dollars of free samples a year. A practice the drug company reps describe as a cost-saving safety net for the poor. This study follows a January report that showed that the free samples are more likely to go to insured and financially secure patients instead of to the needy.

In the Chicago study, patients who did not receive free samples spent an estimated $178 out-of-pocket on prescription drugs over six months. By comparison, patients given free samples spent about $166 of their own money during the six months before they got the samples -- but then $244 during the six months they received the samples and $212 in the six months after that, researchers found.

So, why would your out of pocket costs go up? Free samples allow patients to try new medications, including those without insurance coverage.

One thought is that patients who received the free samples are sicker than those who did not. However, the study indicated that illness was not a factor.

Another more compelling reason could be; it's a brilliant marketing move. Many of the patients, who take the free samples, continue to use that higher priced brand, not knowing that a generic may be available. If you consider that two out of every three drugs prescribed is generic, it makes perfect sense for a drug company to give away their product for free taking a chance that the patient will develop some loyalty to that product and continue to use it even when they have to pay for it.

"This builds on a growing body of literature that shows that samples are not aimed to help the uninsured and the poor, but to increase the sales of the branded drugs," said Dr. William Shrank, an instructor at Harvard Medical School.

So it seems, free drug samples will cost more in the long run if you're not careful.

Originally posted at InjuryBoard by Linda Snyder