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Tort Reform and Unintended Consequences

Bret Hanna — Thu, 15 Oct 2009 20:15:40 GMT

Medical care providers are people and people make mistakes - that's it, plain and simple, and the facts can't be disputed. An editorial which appeared this week in the Salt Lake Tribune offers the following statistics:

The other side of the coin is that doctors and hospitals regularly kill people through their negligence. In 1999, the Institute of Medicine of the National Academies reported, "Based on the findings of one major study, medical errors kill some 44,000 people in U.S. hospitals each year. Another study puts the number much higher, at 98,000. Even using the lower estimate, more people die from medical mistakes each year than from highway accidents, breast cancer, or AIDS."

Tort reformers, however, love to sweep such statistics under the rug and focus on things like so-called defensive medicine." MedicineNet.com defines this as:

Defensive medicine: Medical practices designed to avert the future possibility of malpractice suits. In defensive medicine, responses are undertaken primarily to avoid liability rather than to benefit the patient. Doctors may order tests, procedures, or visits, or avoid high-risk patients or procedures primarily (but not necessarily solely) to reduce their exposure to malpractice liability. Defensive medicine is one of the least desirable effects of the rise in medical litigation. Defensive medicine increases the cost of health care and may expose patients to unnecessary risks.

A debate rages about whether defensive medicine is a statistically significant problem but if it is, the doctors who practice it should be hiring lawyers - not medical malpractice defense lawyers, criminal defense lawyers. If they are ordering tests, procedures or care visits to reduce their exposure to malpractice liability, they are violating the Hippocratic Oath and committing insurance fraud because they are being reimbursed for unnecessary care.

In any event, tort reformers have successfully sold their "we need caps on damages to reduce malpractice insurance premiums and to reduce defensive medicine" bill-of-goods to a number of legislatures including the one here in Utah. We have a draconian Governmental Immunity Act, with a one-year notice of claim requirement and a total damages cap that shields every governmental medical provider and facility, from the smallest rural county hospitals to the giant University of Utah Health Care system. For those medical providers not so protected, we have a short two year statute of limitations, a mandatory pre-litigation review process that can add up to a year to the litigation process, and caps on general damages.

There is no evidence that these "reforms" have had the intended effect - malpractice insurance premiums are dictated by how well insurance companies are doing in the stock market, not how much they pay out in claims. And doctors still claim that they worry about being sued and practice medicine in response. So much for the intended effects, but what about what may not have been intended?

Again, people are routinely injured and killed by the negligence of medical providers. These people, who could be you, your family members or your friends, are entitled to recover for the real economic, physical and emotional losses associated with such deaths and injuries. Not surprisingly, people who have been victimized by medical negligence focus first on grieving the loss of a loved one or, for those not killed, getting better if they can. Figuring out how to deal with their losses by examining potential remedies often comes down the road.

In many states, such as Utah, that natural time lapse can pose real problems that may undermine those remedies. Medical malpractice cases are complex and time intensive. And they are expensive - very expensive. Attorneys who help the families of the dead and the injured only get paid if there is a recovery. And they can invest tens of thousands of dollars of their own money on costs associated with getting a case to resolution. These economic realities dictate that only meritorious cases be pursued, but it takes time to figure out which cases have merit and which do not. Medical records must be gathered which can take months. Once gathered, records must be reviewed by a qualified expert to determine if there was negligence which caused an injury for which a legal remedy is available.

With such short time lines for pursuing claims, however, lawyers representing the injured are often forced to file notices of claims and other documents to initiate claims before a full detailed analysis of all of the potential players and elements of various claims can be completed. If they don't, the claims of their clients may be barred. The result is that some cases may be dismissed voluntarily down the road, or individual providers may be let out of a case, because after there is time for a full vetting it turns out there is not a good case against them.

Medical providers complain all the time about a "shotgun" approach to medical malpractice cases - pursue everyone in sight for everything under the sun and sort it out later. But that is not what is happening. Attorneys representing victims are making the best decisions they can and taking the steps necessary to protect the rights of their clients before they are lost. If they are forced into initiating a claim because of deadlines and they later determine that they don't have a strong case, they do the right thing and end the process. Such unintended consequences of tort reform should not be replicated with the imposition of additional limitations on access to justice.

Originally posted at InjuryBoard by Bret Hanna

Widow of Man Tasered to Death Has His Baby

Bret Hanna — Sat, 26 Sep 2009 19:29:30 GMT

I've posted on this tragic case before because it seems so senseless. Brian Cardall died on June 9th, after he was tasered twice by a Hurricane police officer along the side of a highway in southern Utah. His family thinks excessive force was used on Cardall who appeared manic and disoriented at the time of the tasering. The autopsy results are not in yet, but the suspicion is that his sudden death was caused by cardiac arrest.

At the time of his death, Cardall's wife was pregnant with their second child. Bella Aspen Cardall was born on September 26th, and she weighed in at 7 pounds 2 ounces. Bella joins her mother Anna and 3-year-old sister Ava as they move forward in life without a husband and father. The family has commented on how much Bella resembles her father ,which offers them comfort as the official investigation into Brian's death continues.

Not surprisingly, Peter Stirba, the attorney hired by the Hurricane Police Department immediately after Cardall's death, claims that officers acted appropriately in deploying Tasers on on Cardall. But the facts just don't add up to such a conclusion. Yes, Cardall was behaving erratically when he was tased. His behavior is what led his wife to call 911 to begin with - she was concerned for his safety. But at the time of the tasing, Cardall had removed all of his clothes and was standing along the highway. Who was he going to hurt and how? Was Taser deployment really necessary? There was not a less forceful method to diffuse the situation?

It will be interesting to see the results of the investigation being conducted by the Washington County Critical Incident Task Force, but I think anyone who pays attention to these types of cases can predict them. How many times have you heard or read that after an exhaustive investigation, investigators have cleared officers of all wrong-doing and no charges will be pursued or disciplinary action taken? For the sake of the Cardall family, I hope that is not the case here.

Originally posted at InjuryBoard by Bret Hanna

Tasers Can Cause Cardiac Arrest And Sudden Death

Bret Hanna — Mon, 15 Jun 2009 18:51:35 GMT

As a follow-up to my post on Taser issues last week, Tasers Can Kill And Deployment Policies Are Inconsistent Or Non-Existent, I've come across more information on one way that Tasers can kill. In my prior post, I reported that 32 year old Brian Cardall died last week after he was tased by a Hurricane, Utah police officer. According to his obituary, Brian died of apparent cardiac arrest shortly after the officer made the decision to deploy his Taser in an effort to subdue him for what the officer now says was erratic behavior.

As this video demonstrates, Tasers are effective in subduing even those who view themselves to be some of the toughest people around:

http://www.youtube.com/watch?v=QhkE3VTuPhk

But the "non-lethal" weapons manufactured by Taser International have killed hundreds of people over the years:

http://www.youtube.com/watch?v=3d1QqV0O-Ho

It appears that at least some of those sudden deaths were caused by cardiac arrest. One Canadian heart specialist, Dr. Michael Janusz, told an inquiry panel in British Columbia that based on his review of the literature concerning Taser use, "almost all physicians would conclude that Taser can induce ventricular fibrillation" which can lead to cardiac arrest because if not interrupted quickly, the extremely rapid rhythms in the lower chambers of the heart prevent it from pumping blood.

Dr. Charles Kerr spoke to the same inquiry panel and essentially indicated that he agreed with Dr. Janusz by stating that based on his reading of animal studies and the agitated state of most people who are targeted with Tasers, a Taser jolt can cause ventricular fibrillation. One other researcher, electrical engineer James Ruggieri, has concluded that Taser induced cardiac arrests may not always be immediate and that injuries to those being tased may go undetected.

At the end of the day, however, some researchers, including Dr. Janusz and Dr. Kerr, who think Tasers can kill also think that in certain circumstances, they may be a safer choice than say, a gun. While that may be true, many law enforcement people equipped with Tasers seem to focus much more on their effectiveness than the potential risks their use entails. It seems that there should be more balance in the decision making process when these situations arise.

Originally posted at InjuryBoard by Bret Hanna

Tragic Accident During Utah Bicycle Event- Was it Avoidable?

Mark Williams — Sun, 23 Aug 2009 18:15:08 GMT

Five cyclists were injured during a popular road cycling event this last Saturday, the 1,000 Warriors Bicycle Race. The amateur race gives non-professionals the chance to ride the same course as the tough 4th mountain stage of the Tour of Utah-- just 5 hours before the actual pro tour. It is set up as a fundraiser for scholarship for children of wounded soldiers-- a very challenging race for a good cause. The event was marred when a driver of an SUV apparently became nervous when a vehicle pulling a trailer up the narrow American Fork Canyon swerved toward the SUV's lane, according to an article in the Salt Lake Tribune. The driver apparently panicked and slammed on its brakes, just as 5 riders traveling at speeds estimated near 45 miles per hour came from behind the SUV. At least 2 of the riders, all from Mesa, Arizona's Red Mountain Brumbys cycles club, hit the back of the vechicle, and 3 other crashed trying to avoid the impact. One of the riders went through the rear window, lacerating his head and upper body and severing an artery. Only through the quick thinking of two of the cyclists who were EMTs was the critically injured rider, Dave Collins, a 45-year-old real estate developer from Arizona, able to be quickly stabilized and transferred by helicopter to the University Hospital.

The details of the accident still need to be determined and analyzed. Nevertheless, the accident raises several questions. Why was the roadway not cleared for such a popular race, in such a narrow canyon? Due to the topography, the road is very steep, leading to very high speeds for cyclists. According to the Tribune, the race organizer, Rick Bennett, he had tried to gain a permit to close the Alpine Loop, a very popular canyon road for cyclist and campers. This was denied. According to a UDOT spokesperson, the permit was ostensibly denied because of the difficulty in denying access to other users of the canyon. The Tribune article reported that the permit had only been submitted days before the race. Whatever the real facts turn out to be, there were apparently inadequate safety controls in the canyon to minimize dangerous traffic congestion where such large numbers of bike riders would be traveling down the canyon at such high rates of speed.

If the race organizers were aware of this, they should have warned the riders that there were no controls in place, and to limit the speed in the presence of other vehicles on the road. I have participated in large cycling events on public roads where there is little or no police presence. Riders are usually told in those situations that they must comply with the rules of the road and obey traffic signals. Currently, it is unknown what the riders were told.

The article is also unclear about the circumstances leading up to the accident. Was there a blind corner? Did the driver of the SUV over-react and unsafely stop short? Was the driver impatient or scared by the presence of the bikers? Were these bikers involved in the accident following too closely? Had other bikers unsafely passed or spooked the driver prior to the accident?

Certainly, bike riders on a mountainous and technical course such as this, have a right to expect that they will be permitted to ride at near-top speed, especially where it is advertised as a chance to ride Tour's 4th stage course, just prior to the actual pro race. They were given the thrill of experiencing the same challenging course as the professionals. Race directors should have realized this. Without some means of minimizing the exposure of the cyclists to the motoring public on the course, the chances of an accident of this type were increased.

Best wishes to the injured cyclists, especially Dave Collins, as well as the SUV driver, if the driver did not deliberately "stop short" to spook or retaliate some way against the bikers. Hopefully, the facts will come out in order to allow investigators and the parties involved to determine where fault should be allocated. Regardless of the outcome of the investigation, one would expect that race organizers will be able to take steps to avoid this dangerous situation for the next year's event.

Originally posted at InjuryBoard by Mark Williams

Trucking Safety Must be a Top Priority

Bret Hanna — Mon, 16 Nov 2009 22:54:58 GMT

Deaths resulting from accidents involving tractor-trailers between 2003 and 2006 exceeded 5,000 per year which is way too high. The Truck Safety Coalition (TSC) is dedicated to reducing these numbers and describes itself as:

The Truck Safety Coalition is a partnership between The Citizens for Reliable and Safe Highways (CRASH) Foundation, and Parents Against Tired Truckers (P.A.T.T). The Truck Safety Coalition is dedicated to reducing the number of deaths and injuries caused by truck-related crashes, providing compassionate support to truck crash survivors and families of truck crash victims, and educating the public, policy-makers and media about truck safety issues.

The TSC site also contains memorials dedicated to those who have lost their lives in these accidents and they really underscore the need to focus on safety issues to reduce the number of injuries and deaths resulting from truck involved accidents. This post is the first in an indefinite series of articles that will address trucking safety issues. Please visit often to stay current on this topic which is critically important to everyone on the roadways.

Originally posted at InjuryBoard by Bret Hanna

Tobacco, Chimney Sweeping, and Tanning Beds

Mark Williams — Wed, 29 Jul 2009 16:12:25 GMT

What do these things have in common, you ask? Cancer. Scientists now have determined unequivocally that the ubiquitous tanning parlors pose a very real danger, particularly to the tanning public of under the age of 30. In an AP article found in the Salt Lake Tribune, the risk of ultraviolet light used in tanning beds as been upgraded from "probable carcinogens" to a definite cancer causing activity. A recent international journal, Lancet Oncology, completed an analysis of about 20 studies , and concluded the risk of skin cancer increases by 75 percent when people begin visiting tanning beds before age 30.

Tanning beds emit mainly ultraviolet radiation, which causes skin and eye cancer. With the increased popularity of tanning parlors with people under 30, doctors have noticed a rise in the numbers of young people with skin cancer, though most types of skin cancer are benign. Even more concerning, however, there has been a 20 percent increase in deadly melanoma cancer during this time.

The advice these reasearchers give to the tanning public: Try bronzing creams or spray on "fake bake" applications. If you really must look bronze, don't risk skin cancer. Parents should make sure there teens are aware of these risks before they follow this deadly trend.

Originally posted at InjuryBoard by Mark Williams

Should Obese Truck Drivers Undergo Mandatory Testing To Determine If They Have Sleep Apnea?

Bret Hanna — Mon, 08 Jun 2009 17:51:10 GMT

Truck drivers are people and some are overweight. Some, like the general population, are downright obese. But over-the-road truck drivers make their living driving very large, heavy vehicles that cause incredible damage to people and property when they are involved in accidents. It is for this reason that some industry watchers and scientists have turned their attention to the question of whether obese truck drivers should be regulated because of a perceived relationship between sleep apnea, which is exacerbated by obesity, and accidents caused by drowsy, sleep deprived truck drivers.

MSNBC recently reported on this issue and cited some interesting statistics:

5,200 people are killed by truck involved accidents every year.
More than 100,000 people are injured in truck involved accidents every year.
There are about 161,000 truck and bus accidents per year.
Sleep apnea increases the risk of an accident by two to seven times.
Up to 28 percent of commercial truck drivers have mild to severe sleep apnea which is approximately 3.9 million of the 14 million licensed commercial drivers in the U.S.
The rate of sleep apnea in the general population is an estimated 4 percent in men and 2 percent in women which is significantly lower than the rate which afflicts truck drivers.
The average cost of a large truck accident that results in fatality is 3.6 million dollars.
The average cost of a large truck accident that results in non fatal injuries is almost $200,000.
The average cost of all large truck accidents is $91,000.

The proposed regulation is mandatory screening for sleep apnea because of research which shows a strong link between sleep apnea and fat drivers. Specifically, the Federal Motor Carrier Safety Administration (FMCSA), is considering imposing a rule which would require drivers with a body mass index of 30 (the baseline for obesity) or higher to undergo screening for sleep apnea. Researchers suggest that 40 percent of commercial truck drivers have a BMI of 30 or higher so this will be significant if the FMCSA enacts it.

The reason for the delay in following a Medical Review Panel's recommendation to implement the screening rule is the financial impact it will have on the industry. There will be costs for sleep studies as well as equipment to deal address the apnea and monitor the drivers who are diagnosed with the condition. Such costs could be particularly onerous for smaller trucking companies.

A couple of companies, Schneider National and Swift Transportation, have voluntarily implemented their own testing and treatment programs because they recognize the benefits in terms public safety (reducing accidents), savings in expenditures for losses caused by accidents, increased driver retention and reduced employee health care costs. But some observers point out that change in this area will come slowly if at all unless the screening requirements are mandatory. I agree and think that benefits far outweigh the costs. What do you think?

Originally posted at InjuryBoard by Bret Hanna

Logan Northern Canal Disaster - Sixth Installment

Bret Hanna — Mon, 27 Jul 2009 23:53:12 GMT

Last week, Utah's soon-to-be Governor, Gary Herbert, backed off on a promised probe into the cause of the failure of the Logan Northern Canal on July 11th with spokeswoman Angela Welling calling it a "fruitless endeavor." What? Can they be serious?

Herbert is scheduled to move from the Lieutenant Governor's office into the Governor's office as soon current Governor Jon Huntsman is confirmed as the U.S. Ambassador to China. And in the wake of the canal collapse, he initially said that he was committed to finding the "underlying causes" of the disaster. Now he has decided to not ask the Executive Water Task Force, the entity responsible for for investigating waterways, or any other state agency, to look into the matter.

The group is slated to meet in August and one member thinks the time has come for more government oversight of the 5,300 miles of canals in Utah. Herbert, however, claims there is no statute that gives the state the authority to conduct the probe although he admits he can order one; he now says that even if he does order one, no one will have to participate. This pronouncement comes on the heels of Logan city officials indicating that they will not be looking into the causes either.

So what now for the families of the three killed and those who suffered the loss of their homes or other property damage? These victims are on their own, apparently, to figure out what went wrong and to attempt get justice from the canal owners. Despicable. And unnecessary - a neutral third-party or independent panel should be formed to determine the causes of the disaster and to make recommendations, perhaps binding, to prevent future canal failures.

What do you think?

Originally posted at InjuryBoard by Bret Hanna

Truck Hours of Service Case Settlement a Step in the Right Direction

Bret Hanna — Tue, 01 Dec 2009 22:33:26 GMT

A recent press release from the Truck Safety Coalition highlights an hours of service case settlement that has resulted in the Obama administration agreeing to reexamine the rule that is supposed to keep drowsy truck drivers off the road. Here is the text of the press release:

ARLINGTON, VA (November 10, 2009) – The Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA) have agreed to conduct a new round of rulemaking that could result in reducing the current unsafe hours of service rule for truck drivers issued by the Bush administration in 2003.

As a result of the October 26 settlement, the Truck Safety Coalition, Advocates for Highway and Auto Safety, Public Citizen, and the International Brotherhood of Teamsters, petitioned the court to hold in abeyance the lawsuit they filed against the FMCSA and their current hours of service rule. The FMCSA must begin a new rulemaking process and submit a notice of proposed rulemaking to the Office of Management and Budget within nine months and publish a final rule within 21 months.

The Bush administration increased the number of daily and weekly hours truckers can drive from 10 to 11 consecutive hours per 14-hour shift and total weekly driving hours from 60 to 77 per driver every seven days (a more than 25 percent increase). The rule dramatically expanded driving and work hours by cutting the off-duty rest and recovery time at the end of the week from a full weekend of 50 or more hours off duty to as little as only 34 hours.

The groups have petitioned the U.S. Court of Appeals a total of three times, most recently in March 2009. In 2004 , the court vacated the hours of service rule on the grounds that the government did not adequately consider the effects of longer driving hours on individual truck driver health and traffic safety, and in 2007 because the agency did not let the public examine and comment on the new crash risk analysis used by the agency to support reissuing the same exact rule.

Daphne Izer, who co-founded Parents Against Tired Truckers (P.A.T.T.) in 1994 after a fatigued truck driver killed her 17-year-old son Jeff and his three close friends, was pleased with the settlement. "The good news is that there will be a new hours-of-service rule that hopefully will protect truck drivers and families like mine. This new rule must put people before profits."

Dawn King, whose father, William Badger, was killed on December 23, 2004 when a tractor trailer driver fell asleep behind the wheel and collided with his car, is currently a board member of Citizens for Reliable and Safe Highways (CRASH) and a participant in the Truck Safety Coalition’s First Response program assisting fellow grieving truck crash victims. She added, "Fatigued drivers are a threat to the safety of everyone on the road. This settlement is a positive step forward and should lead to improved worker and safety regulations in the truck driving industry."

This is a huge step in the right direction. Let's hope new rule scales back the allowable hours of service to a safer, more rationale number and that it is implemented quickly.

Originally posted at InjuryBoard by Bret Hanna

First Response Program Offers Helping Hand to Truck Accident Victims

Bret Hanna — Wed, 18 Nov 2009 22:34:35 GMT

As indicated in a prior post, more than 5,000 people a year die in accidents involving tractor-trailers. That means that many individuals and families will be devastated each year by the injuries and deaths and they will need a helping hand. A program of the Truck Safety Coalition offers just that.

The First Response Program is a network of volunteers in communities across the country that offer support and assistance to the victims and families of victims of accidents involving tractor-trailers. The Mission Statement of the program is:

We will seek to locate and help new victims of truck crashes by providing information, encouragement, hope or simply a willing and understanding ear. We will seek to provide them with assistance, comfort and information that we wish someone had provided for us in such a dark time, and to let them know that, if they choose, there are ways to try to make some degree of sense of such a senseless situation. Helping to comfort truck crash victims and helping to satisfy their needs is the foundation for the First Response Program.

And their goal is:

Our goal is to contact and support every truck crash victim in the United States. Unfortunately, this is an aggressive goal due to the tragic number of truck crashes every year. By setting up the network, we hope to support, state by state, the new victims of truck crashes. It is important for us to let them know they are not alone in their time of grief.

While this goal may be aggressive, it is attainable if word of their work gets out. Contact information for the program can be found by calling (703) 294-6404, or by sending an e-mail inquiry to crash@trucksafety.org. With luck, most of us will never need the support and assistance of these volunteers but it is comforting to know they are there for us if we need them.

Originally posted at InjuryBoard by Bret Hanna