The Injury Board Commentary - Wrongful Death

House GOP Bill Would Enable Anti-Abortion Civil Suits

Andrew Cochran — Thu, 09 Feb 2012 15:34:08 GMT

This week, the House Judiciary Committee approved H.R. 3541, the "Prenatal Nondiscrimination Act," which prohibits an abortion based on the sex, gender, color or race of the child, or the race of a parent of the child, as well as certain acts which facilitate the performance of a sex-selection or race-selection based abortion.

Articles from the pro- and anti-abortion commentators have focused on the criminal side of the bill and its potential impact on abortion rights. But I want to focus on another section of the bill, one which enables civil suits by the woman whose baby could be forcibly aborted, or by certain family members. That's a remarkable development for the Republicans serving on the Judiciary Committee, considering where they stand on other types of lawsuits.

Most of the House Republicans on that committee have been openly hostile to victims of medical malpractice, and last year approved H.R. 5, a bill designed to impose national limits on awards in medmal suits and impose wage limits on the attorneys who try such cases in court. So House Republican Judiciary Committee members are simultaneously opposing lawsuits filed in cases of personal injury or death, but creating a private right of action when race or sex is used as an excuse for abortion. Moreover, the committee Republicans backing H.R. 3541 have also backed H.R. 1433, titled "The Private Property Rights Protection Act," which enables civil suits by property owners against abusive eminent domain actions by local governments. There's no logical basis for the inconsistent treatment between medmal lawsuits on one hand, and certain abortion or property rights cases on the other.

I'm not against either of the two bills creating new private rights of action. As a pro-life conservative, I'm all for new legal tools to limit abortion on demand. But let's be consistent, just as the Founding Fathers were, when it comes to the civil justice system. They protected open courtrooms for all causes and cases, and so should Congress. Medical malpractice victims, victims of forced abortions, and property owners are equal under the law and have an equally unalienable right to bring their cases before a local jury.

Originally posted at InjuryBoard by Andrew Cochran

Maryland Hospital Cannot be Sued in Virginia if No Business in Virginia

Doug Landau — Tue, 07 Feb 2012 14:59:52 GMT

After the question of whether to bring a lawsuit, the issue of where to bring the case usually follows. With citizens of Virginia often transacting business and getting hurt in the nearby jurisdictions of Maryland and the District of Columbia, the problem of where to file the case comes up regularly. Sometimes there may be more than one proper place to bring an accident case. However, if the injured person, or the family of an injured victim brings the claim in the wrong court, the case can be transferred or dismissed. The Federal Court in Richmond, Virginia recently ruled that
the estate of a man who allegedly contracted a MRSA infection because of the negligence of the Defendant Maryland hospital cannot sue the hospital under the Maryland Health Care Claims Act in a Virginia federal court

The court reasoned that as the Plaintiff could not identify any Virginia long-arm statutory provision that applied to the case, and the court could not independently find any of the requirements of the long-arm statute to be satisfied, the Federal judges could not hear the case in Virginia. According to the Virginia Lawyers Weekly, there were several facts that were important to the judge's decision. Specifically, the medical injuries giving rise to this cause of action did not occur as a result of defendant transacting any business in the Commonwealth of Virginia. Rather, decedent traveled to Maryland where he allegedly received substandard treatment. Likewise the Defendant’s alleged negligence transpired solely on the hospital premises in Maryland. Furthermore, the Defendant Hospital does not regularly do business or engage in any persistent conduct within the Commonwealth of Virginia. Although the defendant may accept patients from Virginia, it did not derive substantial revenue from any services rendered within this Commonwealth. Bottom line: the Plaintiff failed to persuade the Virginia Federal court that it would be appropriate to exercise personal jurisdiction over defendant. However, rather than dismiss plaintiff’s lawsuit in its entirety, the court transferred the case to the U.S. District Court for the District of Maryland.

Originally posted at InjuryBoard by Doug Landau

The MVP Of The Super Bowl Is The Designated Driver

Mike Bryant — Sun, 05 Feb 2012 16:12:35 GMT

The Minnesota Department of Public Safety has calling for the true MVP of the Super Bowl to step forward. That real life person is the person that make sure others are safe getting home.

During Minnesota Super Bowl Weekends in 2006-2008, five of seven fatal accidents on the road were alcohol related. At the same time, nearly 1500 motorists were arrested for DWI. This can be a fun time as people get together , cheer on their team and watch commercials. Make sure you don't make it memorable for any other reason.

As for the food? Eating Well has some great suggestions.

Have fun, don't Drink and Drive and hopefully some day you will be around to see the Vikings back in it.

As for today? Go Patriots.

Originally posted at InjuryBoard by Mike Bryant

How Much Is A Life Worth? It Depends Where You Live (And It's Probably Lower Than You Think)

Brett Emison — Tue, 31 Jan 2012 11:19:00 GMT

So, how much is your life worth?

Wayne Green answers this question in an article published in the Tulsa World, concluding that "Oklahoma's low liability cap leaves some victims holding the bag."

The problem is "sovereign immunity." Sovereign immunity is the judicial doctrine that precludes victims from bringing a lawsuit against the government without the government's consent. This doctrine has its origins in British law founded on the principle that King can do no wrong.

Most government entities have abrogated this immunity - at least to a limited extent. But the extent of the government's sovereign immunity waiver varies greatly depending on where you live.

According to Green, in Oklahoma, if you are negligently injured or killed by the state, your life is worth exactly $125,000. If the state of Oklahoma negligently kills, maims, or otherwise harms you, the most you can recover is $125,000 - regardless of the nature of the State's conduct. That seems like a paltry sum for state that considers itself to value life.

In Missouri, my home state, there is an immunity cap tied to inflation. The initial cap was $2 million per incident with a maximum of $300,000 to any one person. Accounting for inflation, the caps are currently $2,618,240 per occurrence with a maximum of $392,734 per person.

The Illinois sovereign immunity cap is lower than Missouri or even Oklahoma. Illinois limits tort recoveries to only $100,000 unless the injury is caused by the operation of a state vehicle.

Oregon caps its immunity at $1.7 million with provisions for the cap to increase by $100,000 per year through 2015.

Eric Turkewitz wrote about the brutality of damages caps like these at his blog at New York Personal Injury Law Blog.

Seven were killed and dozens more injured. And now the State of Indiana is waltzing away from that tragedy having paid a mere $5M in total to 63 of the 65 victims and their families. For the families of those killed, a paltry $300K. If one of those killed or badly injured was a parent, that money will vanish quickly.

Why $5M? Because Indiana decided to limit its responsibility when it handed itself this brand of immunity and protection.

To find out how your state values your life, see State Sovereign Immunity and Tort Liability compiled by the National Conference of State Legislatures.

Should state and local governments have this immunity or should they just purchase insurance like the rest of us? How much should your life be worth?

Oklahoma's low liability cap leaves some victims holding the bag [Wayne Green at Tulsa World]
State Sovereign Immunity and Tort Liability [National Conference of State Legislatures]
Indiana State Fair Stage Collapse (And the Brutality of Damage Caps) [Eric Turkewitz at New York Personal Injury Law Blog]

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Originally posted at InjuryBoard by Brett Emison

The Lowdown on “C. Diff” Hospital Infections

Mike Ferrara — Sun, 29 Jan 2012 13:18:08 GMT

If you don’t work in a hospital, chances are you’re not familiar with the term “C. diff.” It stands for Clostridium difficile, a bacterium that causes an intestinal infection along with severe diarrhea, colitis and even death. These days, patients who come into the hospital with this infection or contract it in the hospital are generally put in precaution rooms to prevent its spread to other patients. Health care workers in charge of these patients must take extra precautions as well.

The most recent numbers tell us that this approach is working. From 1993 to 2008, incidences of hospital stays involving C. difficile increased 300 percent. But between 2008 and 2009, the number of C. difficile infections in hospitals leveled off, according to the Agency for Healthcare Research and Quality (AHRQ).

There were 86,000 hospital stays involving C. difficile in 1993, increasing to 349,000 in 2008, but in 2009 there were about 337,000 stays.

Patients age 85 and older were at highest risk, with hospital stays at a rate of 1,089 per 100,000 people. This was more than double the next highest rate, for those age 65 to 84, at 465 stays per 100,000.

More than 9 percent of hospital stays with C. difficile ended in death, compared with less than 2 percent for all other hospital stays.

Patients with this condition spent an average of 13 days in the hospital, while the average hospital stay for others was less than 5 days. - AHRQ News and Numbers

C. difficile is a bacterium that’s normally present with no complications in the human intestine. However, when patients are given antibiotics, C. difficile, which is resistant to normal antibiotic routines, can take over and cause intestinal inflammation and bleeding. If the infection gets really severe, the only treatment is removing the colon.

Originally posted at InjuryBoard by Mike Ferrara

Friday Legal & Safety News Roundup: January 27, 2012

Brett Emison — Fri, 27 Jan 2012 10:53:00 GMT

Legal and safety news from around the internet that caught my interest this week:

Arkansas Supreme Court Strikes Again At State Tort Reform Law [Andrew Cochran at The 7th Amendment Advocate]
Justice Stevens on The Colbert Report [Orin Kerr at The Volokh Conspiracy]
Medical Liability Reform Stalled By Tenth Amendment Advocates [Michelle Widmann at Fighting For Justice]
A Sign That You Should Always Show Up for Jury Duty [Staci Zaretsky at Above The Law]
NHTSA, Meet FOIA [The Pop Tort]

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Originally posted at InjuryBoard by Brett Emison

Pedestrian Killed on Highway 120 Shuts Down Morning Rush Hour

Mike Bryant — Fri, 27 Jan 2012 09:37:00 GMT

The Minnesota State Patrol reported that Highway 120 was shut down this morning around 6:45 between I-94 and Ramsey County Road 34 when a 47 year-old man was struck and killed. This sad event is yet another example of the many ways pedestrians are in danger on the roads

This death, like any other on Minnesota roads is particularly unfortunate considering the Minnesota Department of Public Safety (MDPS) reported that overall the number of highway deaths has been down.

As with any death in a Minnesota motor vehicle collision, there are a number of issues that will need to be reviewed. My partner, Joe Crumley, addressed this topic in a article for the Minnesota Lawyers Trial magazine. I was interviewed on the same topic

Originally posted at InjuryBoard by Mike Bryant

Andrew Cochran: 7 Reasons Why Conservatives Should Protect The 7th Amendment

Brett Emison — Wed, 25 Jan 2012 12:12:33 GMT

Andrew Cochran at the 7th Amendment Advocate published his latest post today identifying Seven Reasons Why Protecting 7th Amendment Should Be Republican & Tea Party Priority. I urge you to read this post and more of Andrew's work at The 7th Amendment Advocate or here at the Injury Board.

[More on your 7th Amendment Rights]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Pedestrians and Right-Turn-On-Red: What's The Real Risk?

Brian Perkins — Sat, 21 Jan 2012 12:37:17 GMT

It's one of those things that most drivers are guilty of sometime or another: rolling through a right turn when the traffic signal is red. Rarely does this infraction result in an acident, but when it does it can have deadly consequences as I found out in a recent case of mine

Arlene “Kay” Marshall was a well-known and well-liked resident of St. Charles, Illinois. A retired school aide, Kay was a familiar figure, often seen riding her bicycle as she made her way around town.

On August 6, 2010, Kay left her home at Carroll Towers in St. Charles and approached the intersection of West Main Street (Route 64) and North 2nd Street (Route 31). Kay walked her bicycle southbound on the east side of 2nd Street. As she waited to cross southbound across Main Street, a heavy truck approached the same intersection traveling westbound on Main Street.

According to witnesses, the truck began making a rolling right turn, turning against a red light. The truck began to turn at the same time Kay began to enter the roadway. Kay’s bike was clipped by the truck and became stuck on the mud flap. As the truck pulled away, Kay was pulled underneath, and died after being dragged for several hundred feet.

(On behalf of Kay’s survivors, I and Peter Flowers conducted an independent investigation that included witness interviews, videos from the intersection, and an interview with a pathologist. Our efforts resulted in the case being settled for $875,000.)

What I find particularly tragic about Kay's death is that statistically it was a rare occurence. The incidence of accidents involving right-turn-on-red (RTOR) that result in pedestrian or bicyclist deaths is tiny compared to pedestrians who jaywalk or bikers who ignore traffic signals. This may shock many who regularly walk through Chicago's Loop, dodging right-turning cabs and delivery trucks, and certainly will amaze those of us who observe the downtown bicycle delivery people who defy death every time they hit the streets.

Interestingly, the current vogue of cities installing red light cameras at intersections has done little to change the already low number of accidents, fatal and non-fatal, attributed to RTOR. They have, however, served nicely as revenue enhancers.

In Kay's case there was a clear connection with the rolling stop and the subsequent accident, but an equally strong component was the inattentiveness of the truck driver. As noted by Craig Brown in another post on this site, distracted or tired truck drivers pose an enormous risk. In this case the driver was contracted "by the load," and may have been in a hurry to fill his empty truck.

Originally posted at InjuryBoard by Brian Perkins

Friday Legal & Safety News Roundup: January 20, 2012

Brett Emison — Fri, 20 Jan 2012 10:10:00 GMT

Happy Friday! Here's the legal and safety news from around the internets that caught my interest this week:

Lawyers Behaving Badly (1/17/12 Edition) [Eric Turkewitz at New York Personal Injury Law Blog]
Pointless Plane Prohibition [Jonathan H. Adler at The Volokh Conspiracy]
Why Doesn't The U.S. Chamber Mind Its Own Business? [Andrew Cochran at Injury Board / 7th Amendment Advocate]
Top 50 law blogs by common metrics [Kevin O'Keefe at Real Lawyers Have Blogs]
Loser Perry Isn't Payin' [The Pop Tort]
Rick Perry: "Frivolous" Lawsuit is OK as Long as He's the One Filing It [Mark Bello at Injury Board]
Which Newt Gingrich Is Running For President? [Andrew Cochran at The 7th Amendment Advocate]
Ark. Supreme Court Continues To Strike Down Law Limiting Patients' Rights [Katie Gommel at Fighting for Justice]
Retire Your Legal Pad with an iPad [Geri L. Dreiling at Lawyer Tech Review]

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Originally posted at InjuryBoard by Brett Emison