Injuryboard Commentary - Negligence

Osceola Passenger's Claims Come By Way of Driver Distractions

Steve Lombardi — Sat, 05 Dec 2009 20:24:36 GMT

A one-vehicle rollover accident was reported to have been caused when the driver “missed a curve, crossed the center line and rolled in the ditch along G76 Highway west of 60yh Avenue.” I’m not sure I’d agree with the description, but I get the gist of what they are trying to say. Really you can't "miss a curve" unless of course you've fallen asleep or passed out. What driver's do is fail to negotiate the curve. So is that what happened? You be the judge. Here is the report.

Both the driver and the passenger, Elizabeth Anne Hanscom, 23 from Osceola was seriously injured and taken to Iowa Methodist Medical Center. Is it enough that the driver says he missed the curve? Not likely, he’s probably still negligent or at fault for failing to drive at a reasonable and proper speed, failing to drive using due care and failing to drive while keeping a proper lookout.

That’s enough for today, but come back tomorrow to read The Verdict blog/blawg at Lombardi Law Firm where we will discuss other car-truck-semi-motorcycle accidents in Iowa. And as always if you are in an accident and need legal services we encourage you to call us sooner, rather than later. (515-222-1110 or 1-800-383-0331 or sdlombardi@aol.com)

Originally posted at InjuryBoard by Steve Lombardi

Parents Who Discipline Teens, Would Probably Make Good Lawyers

Steve Lombardi — Fri, 04 Dec 2009 12:01:00 GMT

How do lawyers know when you’re following too close?

Parents with teenagers often times have to ask a lot of questions to get to the bottom of "what went on"? Most parents learn the ropes by experience and common sense. The same goes for trial lawyers, judges and juries.

So how do lawyers know when the witness who was a driver in a crash was following too close? In this case someone was, or else, did someone cut the rear driver off? You be the judge.

Probably 90% of rear end collisions occur because of speed, inattention by the driver and following too close to the forward car or truck. Take a look at this accident resulting in a three-vehicle crash on I-380 in Iowa. This one took place on November 13, 2009.

In this accident we have Randy Thomas following Trudi Pillard who was following Josef Flanter. Poor Mr. Flanter, it seems his only role is he was paying attention and in the wrong place at the wrong time. They are all driving on Interstate 380 near Cedar Rapids, Iowa. They were all heading towards Cedar Rapids, as the officer has them heading northbound. The police report by Trooper J. Meggers from Post 11 notes the collision location is mile marker 30 in Linn County. Read what Trooper Meggers says about the sequence of the collisions between these three cars and ask yourself what you think happened that lead up to the collisions. While the officers description is brief there are nuggets from which you can draw several conclusion.

“REVISED REPORT - ALL 3 VEHS WERE NB ON 380 WHEN VEH 3 SLOWED FOR TRAFFIC AND WAS REAR ENDED BY VEH 2, THEN VEH 1 REAR ENDED VEH 2 INVEST PENDING.”

Here is who was involved in the collision and the corresponding numbers the officer assigned to each. You may need to re-read the trooper's description to get a handle on the sequence corresponding to the drivers named in the report.

Car 1: Randy Thomas driving a 1993 Chevrolet Blazer – he’s 47 and driving the car behind the other two.

Car 2: Trudi Pillard is driving a 2007 Chevy ADS – she’s 46 and driving the middle car.

Car 3: And Josef Flanter is driving is driving a Chevy Tahoe – he’s 65 and he’s driving the lead car.

For those of you who don’t know I-380 is a four-lane divided highway with an interstate speed limit. Like your state's divided highways cars are flying faster than the posted speed limit, driving too close to the car in front for comfort and all in a hurry to get someplace sooner rather than later. Some drivers are on cell phones, others eating a soon-to-be not so happy meal, drinking and some are even texting. They change lanes without using a turn signal; they cut drivers off and cut in front of drivers who do leave enough room between the car in front of their car-truck-semi or motorcycle, causing two cars that did have enough room between them to now be following too close. All of these distracted drivers are in some way responsible for precipitating road rage.

Back to the facts. I’m also interested in the sequence of the two or three collisions. The officer describes car 2 crashing first into the rear of 3, followed by car 1 crashing into car 2. Car 3 slowed for a car ahead of him; so you know that the driver of car 2 was in all likelihood driving too fast, following too close and perhaps not paying enough attention to what was going on in front of his car.

As you can see this is an interesting case for us to discuss because there may be two at-fault drivers and that fact alone should raise questions in your mind about what they were doing just prior to the collision. Generally speaking the driver of vehicle 2 struck vehicle 3 and then by the officer’s description vehicle 1 ran into the back of vehicle 2. We don't know if vehicle 3 suffered two collisions; meaning when 1 ran into 2 did 1 then strike 3 again? Remember the officer didn’t see the accident he pieces together his report from what people at the accident scene tell him and from what the physical evidence (mostly the car damage) looks like to him.

So we can’t just take his description as the Gospel truth; we need to make sure that the trooper’s description matches the physical evidence and what the drivers and witnesses say happened. Which brings up a good point; I wasn’t there either so I make no conclusions about exactly what did actually occurr. Lawyers are never there and if they are they aren't going to be a lawyer in the case; they instead will be a witness. But as a lawyer who for 30 years has dealt with car accidents, I’ve become accustomed to reading accident reports and getting hunches about what probably caused the collision. From there I frame my questions.

Also, don't forget I'm a parent. And as a parent who has listened to four kids tell me their teenage version of what happened, I’ve gotten better at asking questions to ferret out the truth. My kids will tell you I'd often say, "That's an interesting answer but how about if now you answer my question."

http://www.youtube.com/watch?v=dMGdMRAc_Yo

So what do you think happened? Think first, read second and third begin to verbalize what you believe is the sequence of events. Being able to verbalize your thoughts is an important part of trial work.

Assuming the officer’s description to be accurate, why do you think Trudi Pillard ran into the rear of Josef Flanter? And then ask yourself why Randy Thomas crashed into Trudi’s car. What keeps cars from colliding on the highway? And what causes cars to crash at highway speeds?

Here’s what I think and the reasons are as plain as the nose on your face; you and I see this every day. Either car 2 cut in between cars 1 and 3 or else both 1 and 2 were following too closely for the highway speeds. That means they were driving too fast for the distances they left between the front of their car and the rear of the car in front of theirs.

LEGALLY SPEAKING

As lawyers, jurors and judges the main issue to determine is fault. Who is at fault is what you the jury need to determine. Most people want to answer a different question that has nothing to do with making driver’s responsible drivers. “What is at fault?” This is a misleading question allowing the issues of responsibility to be skirted and does nothing to promote safe driving habits. Let me explain. It's not about what is at fault, it's about who is at fault.

As a client you need to think like the lawyer’s do or at least understand how we think to anticipate where the legal theories will lead your case.

So as a lawyer, my first series of questions center on whether car 2 cut into the space between 1 and 3.

Series 2 of questions work on a better understanding of how fast each car was driving.

Series 3 questions wants to know more about how long cars 1 and 2 had been traveling behind the involved cars.

Series 4 goes to what distractions, if any, were occurring in each car, with the exception of poor Mr. Flanter.

Remember the case is going to focus on did number 2 change lanes inappropriately, what were their speeds, were they following too close and distracted drivers. Distracted drivers cause accidents. Inconsiderate and aggressive drivers cause serious and deadly accidents. Inexperienced drivers do as well.

To be a good witness, client, trial lawyer, judge or juror you need to think like a parent quizzing your teenager about a car accident they were involved in. Most every teenager wants to blame it on something other than what they did or didn’t do. The weather, an unidentified car or driver, the road conditions, the sun or some inanimate object that wasn't driving their car. As parents we know this and our parental mindset has to be aware of this point of view when talking to them about fault. So with a jaundiced eye about the explanation they give, as a parent, you’re required to probe further than their first explanation. To know where to go with questions we rely on common sense and life experiences of what probably happened. In other words we have to draw a probably conclusion to know what questions to ask.

So when they say it was the car in front, common sense makes us question their speed, proper distances for speeds travelled and driver distractions.

Besides the drivers in this collision we also have several passengers who were injured and each has potential claims against all three drivers. There are four people noted on the report as having been injured, they include: Jennifer Willis, Maison Willis, Ruby Willis and the driver Trudi Pillard.

http://www.youtube.com/watch?v=IEOseanUuT4

Originally posted at InjuryBoard by Steve Lombardi

Cancer Misdiagnosis and Its Consequences

John Cooper — Wed, 02 Dec 2009 13:04:00 GMT

According to American Cancer Society, 565,000 people in the U.S. died of cancer in the year 2008 alone. It is estimated that anywhere from 8% to 12 % of these cancer cases were initially misdiagnosed. A cancer misdiagnosis can greatly affect the lives of the patient as well as that of the family. It causes emotional and mental suffering, asi well as the fact that it creates a significant financial strain on all involved. In some instances, the misdiagnosis may have debilitating consequences as result from potentially unnecessary chemotherapy, radiation and surgery. Death or the loss of a substantial chance of survival is another common harm from delayed cancer care.

Every patient has the right to seek a physician’s second opinion. During your examination, never be afraid to ask questions concerning the laboratory and medical procedures. However, once confirmed it is imperative to start treatment immediately.

Cancer misdiagnosis may include:

Improper identification of a tumor as non-cancerous;
Improper labeling or handling of a biopsy specimen;
Failure to routinely check at risk patients;
Failure to review the medical history of the patient's family when considering symptoms and making a diagnosis;
Improper grading of cancer in terms of severity; and
Failure to refer a patient to a specialist.

Regardless, always feel free to seek a 2^nd opinion prior to any treatment of cancer. Obviously, this should be done quickly as time is of the essence. If this protocol has been followed you have probably minimized the likelihood of a misdiagnosis. However, if after reading this article you feel there may be a chance that you have been misdiagnosed, you should seek knowledgeable legal counsel to determine your rights.

About the Editors: Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia (VA), near the NE North Carolina (NC) border and handles car,truck,railroad, and medical negligence cases and more. Our lawyers proudly edit the Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono public information service. Lawyers licensed in: VA, NC, SC, WV, DC, KY.

Originally posted at InjuryBoard by John Cooper

Jury awards $89 million against drunken driver in fatality collision

Jeremy Thurman — Tue, 01 Dec 2009 17:22:17 GMT

According to stlttoday.com a Missouri jury has awarded $89 million in damages to the family of a man killed in a 2008 crash with a drunken driver, and to the man's fiancée and daughter.

According to the article, the lawyer for the family stated

he doubts his clients will ever see a fraction of the money. But he said the jury's disgust with drunken driving was unmistakable.

The story further details the egregious facts of the case. It states

that Troy Zerna, 20, at the time at the crash, was already driving on a hardship license after a previous DWI when he caused a head-on collision Feb. 2, 2008, on Highway 100 near Gray Summit.

Zerna's blood-alcohol level was 0.20 percent, 2 1/2 times the legal limit to drive, according to Missouri Highway Patrol testimony at the trial.

This is a prime example of a jury sending a clear and unequivocal message to all those who dare drink and drive. The general public is fed up with losing fathers, mothers, sons and daughters to people who purposefully risk the lives of others by drinking and driving. While this verdict took place in Missouri residents of Oklahoma should take note. The size of the award (which very little will likely be recovered) is a lesson about accountability, not collectability.

Originally posted at InjuryBoard by Jeremy Thurman

Marshall County Tractor-Trailer Accident Kills Three Oklahomans

Jeremy Thurman — Tue, 01 Dec 2009 11:48:30 GMT

According to newsok.com, a tragic tractor-trailer collision has taken the life of a man, woman and a 2-year-old boy. Apparently, these individuals died on a Marshall County highway Monday afternoon after a tractor-trailer rig slammed into their car near Kingston in southern Oklahoma.

According to the article

Erin Hudson, 31, and 2-year-old Paul Hudson, along with a 33-year-old man whose name hasn't been released, all died at the scene after the big rig slammed into the passenger side of the car, the Oklahoma Highway Patrol reported.

Investigators said the collision occurred at 12:49 p.m. after driver Erin Hudson failed to yield at a stop sign as she entered U.S. Highway 377 from State Highway 32.

This accident underscores the tragic consequences that can occur when a tractor-trailer collides with an automobile. Our prayers and sympathies are with the families of those lost.

Originally posted at InjuryBoard by Jeremy Thurman

Motorcycles Also Have the Right to Assume Car Drivers will obey the Rules

Steve Lombardi — Wed, 25 Nov 2009 12:01:00 GMT

On October 18^th 2009 at around 11:50 p.m. Ryan Thomas Brooks was eastbound on Southwest Army Post Road when his motorcycle collided with the Dodge Charger driven by Ramonte Davis. Mr. Davis is said to have pulled onto Southwest Army Post Road to back into a parking spot when Mr. Brooks crashed into the front fender of the Dodge. Mr. Brooks was pronounced dead at the scene and police believe that speed was a factor in the accident and have said that Mr. Brooks was wearing a helmet.

Not seeing motorcycles is an often given excuse for having caused a crash with one. A proper lookout is a lookout that looks not just for the obvious, but also the less than obvious drivers, like motorcycles. As a driver you aren’t responsible for just what you saw, but for what was obviously there or that you can anticipate can be there and is lawfully using the city streets and roadways. In this instance the driver of the car is most likely the at-fault driver and can be held liable to the estate and dependents. Before backing up look, look hard and look for motorcycles. They too have the right to use the roads and to assume other drivers will obey the laws in Iowa.

Originally posted at InjuryBoard by Steve Lombardi

Things to Never Tell an Adjuster – “I’m Not Injured”

Jeremy Thurman — Wed, 25 Nov 2009 10:13:00 GMT

As an Oklahoma City car accident attorney a common battle I face on a daily basis is the adjuster telling me I have your client recorded stating “I’m not injured.”

In almost every circumstance, the adjuster has two goals when he or she makes contact with you immediately following an automobile accident. First, they always want you to say that your “at fault.” Secondly, if there is no way around liability, they want you to say “I’m not injured.” Why? Its quite simple they want to use this statement in a potential settlement and/or litigation to show that you are lying about your injuries regardless of the truth.

You have to realize that car wreck injuries do not immediately show up. Often, pain does not show up until a few days after the car accident. For example, brain trauma may not immediately manifest itself and sometimes shows up in the following days with symptoms of dizziness, vomiting and light sensitivity. Other “soft tissue” injuries such as whiplash and back strains also may not show immediately do the adrenaline rush many people experience after a car wreck.

Accordingly, its important to never admit that you are not injured and always contact an attorney to maneuver you around the potholes that an experienced insurance adjuster will try to get you to fall in.

If you or loved one has been injured or a loved one killed in an auto accident, McIntyre Law, P.C. has the experience and knowledge needed to successfully handle your auto accident case. Contact us immediately after an auto accident and we will discuss the situation with you and come up with a plan of action to help you get compensation for your injuries, property damage or a loved one’s wrongful death. Visit www.mcintyrelaw.com or call toll free 1-866-917-5200 to discuss your case and find out the best course of action to ensure that you get the compensation you deserve.

Originally posted at InjuryBoard by Jeremy Thurman

Man in Coma for 23 Years Heard Everything

Jeremy Thurman — Tue, 24 Nov 2009 10:04:22 GMT

Imagine being trapped in your own body. When you think of being trapped the first thing that may come to mind is being confined, now think about the only thing confining you is your brain. Your loved ones are all around you trying to talk to you; meanwhile, you lay there and cannot speak. You scream, shout, cry, smile, and even laugh occasionally but no one knows but you. Now imagine this has been going on for 23 years. Recently in Brussels, Belgium this nightmare is one man’s reality. Recently made public in newspapers and internet sites throughout the world is the story of Rom Houben, a 46 year old man, who was involved in a car accident 26 years ago. Up until 3 years ago this man was thought to be in a vegetative state, but thanks to new brain scanning technology they discovered that not only was Mr. Houben’s brain functioning properly but it was almost operating normally. Dr. Steven Laureys, a neurologist at the University of Liège in Belgium, has published a new study that states Mr. Houben could be one of many misdiagnosed coma cases in the world. Dr. Laurey’s study states that up to 40% of cases labeled vegatative state, upon closer examination are found to have at least some brain activity. With this new finding they have found that some cases with consciousness can be treated and they are making considerable progress.

This grim reality could happen to any one of us. A simple trip to the grocery store could put you or a loved one in a hospital bed, one that they may never get out of again. In the United States in 2008 per every 100,000 population, 12.25 people were killed (FARS DOT). While every year less and less people are dying on the roadways, there are still severe injury accidents that occur. Every day I count my blessings when I make it home safely, and I was not responsible for somebody’s pain and suffering.

Originally posted at InjuryBoard by Jeremy Thurman

Workers Comp and violation of OSHA Safety Regulations

Doug Landau — Thu, 19 Nov 2009 00:30:00 GMT

Loudoun Fairfax construction accident lawyer Doug Landau is often asked about safety violations on the work site. If the employer is in violation of safety standards, are they automatically found liable for the disabled worker's injuries ? And if the injured employee is found to be in violation of a safety rule, can they still collect workers comp benefits ?

Unfortunately, it is not good for the injured worker in Virginia. Even if the employer is found to be in violation of a safety statute or fined by OSHA, that does not mean that the employee automatically gets their workers compensation benefits. The ABRAMS LANDAU injury trial team has won cases where the employers were found guilty of homicide in criminal court, and Virginia law still did not allow them to be sued for negligence ! So, the employer's negligence or recklessness is not reviewed by the workers compensation judges.

However, the employee's failure to follow a known and enforced safety rule, can and will preclude an award of workers compensation benefits. In one case that Loudoun Fairfax and Leesburg construction injury lawyer Doug Landau won, the employee had "unhooked" his safety belt right before he slipped and fell from a roof, fracturing both ankles. The employer's insurance company lawyers alleged "wilfull violation of a safety rule," and comp benefits were denied. Landau won the case by showing that ALL the employees, and the supervisors all "unhooked" in order to put the top pieces of roofing in place. Furthermore, the injured worker had never been disciplined for this practice, written up or docked pay, so it was not an "enforced rule." If you or someone you know has been injured in a construction site accident or other workplace accident, e-mail ABRAMS LANDAU or call (703-796-9555) today. Just because the insurance company denies the claim, does not mean that the case cannot be won in court.

Originally posted at InjuryBoard by Doug Landau

Uninsured Trauma Patients Almost Twice as Likely to Die – We Need a System that Works

Camryn Hansen — Wed, 18 Nov 2009 21:56:33 GMT

Legally, it’s not supposed to matter whether emergency room patients have insurance or not. The Emergency Medical Treatment and Active Labor Act, passed by Congress in 1986, guarantees that all people brought to the emergency room receive all the treatment they require, independent of their ability to pay.

And yet, a study just published in the Archives of Surgery found that patients lacking insurance are 80% more likely to die from traumatic injuries than those with private insurance, including commercial health plans, health maintenance organizations, and Medicaid.

Trauma physicians said they were surprised by the findings, even though a slew of studies had previously documented the ill effects of going without health coverage. Uninsured patients are less likely to be screened for certain cancers or to be admitted to specialty hospitals for procedures such as heart bypass surgery. Overall, about 18,000 deaths each year have been traced to a lack of health insurance. –LA Times

While the researchers from Harvard University and Brigham and Women's Hospital in Boston were expecting to find some disparity in risk between insured and uninsured trauma patients, they were shocked at just how large the disparity was.

The researchers offered several possible explanations for the findings. Despite the federal law, uninsured patients often wait longer to see doctors in emergency rooms and sometimes visit ERs at several hospitals before finding one that will treat them. Other studies show that, once they're admitted, uninsured patients receive fewer services, such as CT and MRI scans, and are less likely to be transferred to a rehabilitation facility. –LA Times

Whatever the explanation, findings like this make it clear that we need to do away with a health care system that effectively makes second class citizens out of the uninsured.

Originally posted at InjuryBoard by Camryn Hansen