Washington Injury Law Blog

There is a trend emerging in other states where doctors ask you to sign an arbitration agreement before they treat your injury or illness. I haven’t heard of this happening here in Washington, but you can bet it will show up soon if it’s not already happening. As a Kirkland personal injury attorney I can tell that you should never sign an arbitration agreement as a requirement to receive medical care, period! Signing an arbitration agreement is significant because you often waive your constitutional right to a jury trial in these agreements – which can put you at a disadvantage if a medical malpractice dispute arises.

Doctors, hospitals, and nursing homes without a dispute pending (but with patients who are injured or ill and in need of medical treatment) are crafting ways to avoid responsibility for medical errors ahead of time when you will usually go along – only later to find out you gave up some of your constitutional rights. Some of these arbitration agreements can also limit damages or make you pay the cost of arbitrators.

There can be several problems for patients if they sign an arbitration agreement including:

 ○ Patients often are unaware of all rights being given up – arbitration agreement can hidden within all the paperwork you have to complete when you first show up for your appointment;
 ○ Loss of right to a jury trial (juries are generally more favorable to patients than judges or arbitrators);
 ○ Increased costs if forced to pay arbitrators hourly fees – you don’t pay juries or judges hourly fees;
 ○ Patients will not be as familiar with which arbitrators are good or not – but doctors/hospitals and their insurance companies most definitely will know the arbitrators;
 ○ Confidentiality will often be required – so people will not be warned or learn from past mistakes;
 ○ No body of law will be formed establishing rules and guidelines for futures cases to follow.

If you are asked to sign an arbitration agreement by your doctor, hospital or other medical care provider just say NO!

You are not required sign an arbitration agreement and they should not refuse to treat you based on your refusal. If they do refuse to treat you – and it’s not a life threatening injury at that very moment – find another doctor or hospital who will treat you without requiring you to give up your constitutional rights.

Source: Law.com – Patient Arbitration Pacts Are Alarming Attorneys

Airline passengers took another hit on Tuesday when a Federal appeals court tossed out the State of New York’s law requiring airlines to give food, water, clean toilets, and fresh air to passengers stuck in delayed planes.

The Court concluded that the law was well-meaning but stepped on and interfered with federal law governing air carriers. The Court went on to say that only the federal government has the authority to pass such regulations. The New York passenger bill of rights law was being watch by Washington legislators and much of the country for guidance on enacting similar laws in all states.

At this point it is unlikely any other State will pass a passenger bill of rights law. Once a federal court has issued a ruling on a new legal issue  - other federal courts will look to that court decision for guidance, and will likely follow its lead. For example – if Washington passed a passenger bill of rights law – a federal lawsuit would be filed and the 9th Circuit Court of Appeals – which decides Washington cases involving federal law issues – would likely follow this federal decision about New York’s law.

Airline Passenger Bill of Rights is now for all intensive purposes dead at the State level. Only action by the federal government – i.e. the U.S. Congress – will be able to stop the airline abuses that passengers suffer when stuck in a plane on the ground for hours on end . Let’s hope the next U.S. President will help us because Bush is unlikely to sign such a law even if passed by Congress.

Source: Seattle PI

I came across another great post by Ken Shigley of the Atlanta Injury Law Blog  about electronic logs for semi-truck drivers. Interstate trucking companies and their drivers are required to keep paper logs that record the numbers of hours driven per day (11 hours is the maximum),  activities, and locations of stops. The abuse of these paper logs is so bad that they are often referred to as “comic books.” Many semi-truck accidents result from the abusive practices that commonly occur in paper logs.

Trucking companies put huge pressure on drivers to make delivery schedules that are impossible to do legally. Mr. Shigley had a truck driver during a deposition admit that he had destroyed log pages and replaced the pages with fakes showing less hours of driving. The driver had been driving 20 of the last 24 hours before the truck accident that killed a child of the family represented Mr. Shigley. 

Electronic driver logs have been development but are not required. The electronic log devices make it nearly impossible to change or alter the hours of driving or other activities. As you might imagine, the trucking industry doesn’t mind keeping their dirty little secret in place. Allowing their drivers to ignore the trucking laws results in profits for them. The trucking industry is unlikely to voluntarily adopt the usage of electronic driver logs.

We need to tell our legislators that allowing devastating injuries and deaths caused by big rig truck drivers who are over fatigued is unacceptable and must stop. Laws need to be passed requiring tamper proof electronic driver logs in all semi-trucks that drive on our roads and highways.

The driver of a car was killed after crashing into an Elk on 276th Avenue in Maple Valley, Washington.  According to King County Sheriffs the car was speeding at 2:30 a.m. today when it hit the Elk. The crash caused the car to then collide with two power poles, sheering them off.  

With the arrival of Spring today, remember that the wild animals in your neighborhood will be more active now. In my neighborhood in Kirkland there’s a family of 3-4 deer running around all spring and summer. You never know where or when you might come across a large animal in the road.

Driver carefully and watch for animals in the roadway.

Source: Seattle Times

Common sense has finally taken hold with a realistic solution to stopping the 98,000 deaths that result from medical errors each year. The Dennis Quaid story on 60 Minutes has thrust the medical error problem in this country into the media spot light. I was watching the CBS evening news Monday night and saw a report that the federal government – specifically Medicare – and several insurance companies have pledged to stop paying for the bills associated with medical care given to fix certain preventable medical mistakes. My wife Shelly’s reaction to this was – Duh! Why have they paid in the past?

Beginning in October 2008 Medicare will no longer pay for eight hospital mistakes – including:

• Urinary infection from catheter
• Bed sores
• Surgical object left in body
• Air embolism
• Giving wrong type of blood
• Blood infection from catheter
• Chest infection after bypass surgery
• Hospital – caused injury

Medicare believes that if they stop paying for mistakes then hospitals will stop making them. Sure makes good sense to me.

The State of Pennsylvania’s Medicare system is already refusing to pay for 27 “never events” including surgery on the wrong body part and medication leading to injury or death. Hospitals and doctors should pay for fixing their mistakes not the patients. In the past 2 years as a result not paying for mistakes Pennsylvania hospitals are seeing fewer mistakes and fewer deaths. Pennsylvania hospitals and doctors have put better safety measures in place – like 40 question pre-surgery checklists – to help prevent medical errors from happening in the first place. The quickest way to enact change is to make it unprofitable – you gotta love capitalism!

Washington should follow Pennsylvania’s lead and make sure all insurance companies stop paying for preventable medical errors.

Source: CBS Evening News – March 17, 2008

60 Minutes aired a story about how Dennis Quaid’s newborn twin daughters were nearly killed after being given 1,000 times more blood thinning medicine than they should have.  Nurses gave Mr. Quaid’s daughters the adult version of a blood thinning medicine by mistake. The exact same medical error had killed 3 infants in the Midwest a year prior. Why does this potentially fatal medical error keep happening? 

100,000 people die each year as result of medical errors. That is more than breast cancer or car accidents cause each year. It’s the health care industries dirty little secret. Hospitals and doctors hide behind secret review meetings where the error is discussed but rarely – if ever – freely disclosed to the public. The public is kept in the dark in favor of profits over safety.

Drug companies and health care facilities need to work together to find better ways to guard against mixing up children’s medicines with adult. Better color coding of the labels could have prevented the 3 deaths and Quaid daughters ordeal. The drug maker eventually did this but the Quaid’s got caught before their hospital had used up the old medicine and brought in new with the better labeling.

We as citizens can help by demanding that our politicians make stopping repeated and preventable medical errors a priority and require better safe guards on drug distribution in health care facilities. So fatal medical errors do not keep happening over and over.

Once upon a time business deals were done on the golf course between the old boys. Times they are a changin’. Seattle is a bicycle Mecca of sorts – with a large population that take advantage of the many biking trials around the city. Well now there’s a trend of business deals getting done during a bicycle ride instead over a round of golf. Seattle businessmen and women are choosing to get a some exercise and do a deal over a bike ride around the city instead on the golf course.

Some local companies in an effort to encourage their employees to live more healthy lifestyles have offered bicycles to employees who agree to bike to work a certain amount per year. This kind of attitude leads naturally to more social bike rides where business deals may flow as a result. Definitely a good thing for everyone.

As a Washington bicycle accident attorney and recreational bicycle rider I know the dangers that can be out on the road for Washington bicyclists. Seattle may be perceived as a bicycle friendly city – but sometimes its hard to feel that when drivers refuse to share the road. Many Puget Sound area drivers despise bicyclists and think they should get out of their way and off the road. Trails like the Burke-Gilman provide vehicle free areas for bicyclists, but some traffic riding is inevitably needed to get to those trails.

With more and more bicyclists hitting the roads her are some safety tips to keep in mind:

1.  Stay alert

2.  Obey all traffic laws – stop at stop signs and red lights

3.  Make your own decisions in traffic – if riding in a group to fall in the pack mentality trap

4.  Ride as far to the right as practical

5.  Signal and look before turning

6.  Ride in a predictable manner

7.  Ride no more than two abreast when on a group ride

8.  Always were a helmet – it may save your life

9.  Wear bright colored clothing

10. Keep your bicycle in good repair

Sources:

Seattle PI

Cascade Bicycle Club

Here’s more good bicycle safety tips

I recently wrote a post about a rule change that allows semi-truck drivers to be on the road longer each day. Increasing driving hours can cause more fatigued and distracted truck driver’s to be on the road each day. Last night a truck driver was reaching onto the floor boards of his truck for something and left the roadway, crashed through a cable barrier, crossed the median, and drove into on coming freeway traffic causing a horrible Truck Accident. The 24 year old driver of a Kia Sephia crashed underneath the semi trailer pinning the Kia under the trailer.  The young driver of the kia was from Enumclaw and died at the scene of the truck accident.  The KOMO 4 TV report did not say how many hours the driver had been on the road so fatigue may not have been a factor, but the driver was definitely distracted.

The freeway was guarded by a cable barrier that failed to stop the truck from crossing into on coming traffic. Washington DOT claims that a cement barrier probably would not have stopped the truck either given the truck was doing the speed limit when it left the roadway. I wonder if this is really true?

If I recall correctly about six months ago there were several news stories about cable barriers failing to stop cars from crossing into on coming freeway traffic on a particular stretch of I-5 in Marysville, Washington. It seems to me that Washington DOT had better start re-evaluating whether cable barriers are doing the job needed. Perhaps if a cement barrier was in place – there would have been less chance of the truck crossing into on coming freeway traffic. Too many people are dying on Washington highways for this to be a coincidence.

A young man has been stolen from a family far too early. The family must come to grips with the wrongful death of their loved one. Let’s help stop this kind of tragedy and begin considering why cable barriers are still being used when they fail to do the job needed!

Source: KOMO TV 4

A Snohomish County jury awarded, Paramjit Singh, of Mount Vernon, Washington $40.1 million after his heart was so badly damaged by a malfunctioning heart monitor that a heart transplant was required. Mr. Singh must now live the rest of his live on anti-rejection medicine and pray that his body does not one day reject its new heart.

In 2004 Mr. Singh went into Providence Everett Medical Center for heart bypass surgery. During the surgery a heart monitor – built by Edwards Lifesciences Corp. – was used. The heart monitor malfunctioned causing a catheter in Mr. Singh’s heart to overheat and badly burn his heart, such that his heart had to be removed.

According to the hospital – Edwards Lifesciences failed to disclose a problem with the monitor. Edwards attempted to shift blame to the hospital by stating the hospital used a frayed cable. The jury determined Edwards Lifesciences was 99.99% at fault and the hospital 0.01%. As a Washington injury attorney I can tell you that when you have multiple defendants that are potentially at fault, it’s usually a good sign when the defendants are blaming each other and not my injured client. The jury went even further and awarded the hospital $310,000 in damages.

Justice seems to have been done and a defective product has been held accountable for the serious injury it caused. I don’t know the specific details of this case, but Washington juries don’t awarded huge verdicts like this without some really bad conduct by the product maker. If I were a betting man, I’d bet that there was evidence that the product maker knew about the problem with the monitor before hand and failed to warn hospitals that use it. Sounds like a John Grisham story line to me – big bad corporation values profits over peoples lives. 

Source: Seattle PI.

This post continues my series with answers to frequently asked questions about Washington car accident claims.

Q: I settled my Seattle car accident case with the at-fault driver’s insurance company. Do I have to pay taxes on my injury settlement money?

A: Many of my clients ask me about taxes when we start getting close to a settlement with an insurance company. The short answer is generally no taxes are owed on money received in settlement of a personal injury claim.

Restitution for a loss is not considered income for tax purposes. You may be asking what does that mean exactly? According to current IRS law, if an injured person obtains a settlement from an at fault third party (for example, from the at fault driver who hit you), that settlement money is not taxable.

Of course there are always exceptions, nothing in the law seems to be black and white. The IRS generally taxes punitive damages. What are punitive damages? Punitive damages are money that a defendant is ordered to pay over and above the full value of a case. They serve as an additional punishment given to a defendant in cases of outrageous conduct – the message of punitive damages is that you better not do this again because it was really bad and everyone else should take note or it could happen to you too. So what does all of this mean to your car accident settlement? Probably nothing - because in Washington state punitive damages are not usually available for injury claims.

Often times when you hear about huge car accident verdicts in the media the case is from another state that allows punitive damages in injury cases. I believe there are some  states in south of the U.S. where the media has picked up some sensational headlines.

If you are thinking about accepting an insurance company’s settlement offer it might be a good idea to give an experience Washington injury attorney a call to review your rights and make sure you’re doing the right thing.

Another option is order my free book for Washington residents “The Guide to Washington Injury Cases.” The book has good quality information for you to use in handling your injury claim.