Personal Injury Updates

For a kid, nothing is more exciting than an afternoon at the playground.  Not only are they fun, but some neuroscientists believe that playgrounds provide cognitive, social and emotional development in children.  While our children need a safe playground to develop their physical and social selves, many playgrounds pose a very dangerous, and often deadly, threat to kids.

Each year, over 200,000 children go to U.S. emergency rooms with playground related injuries, most of which occur when the child falls from climbing equipment onto the ground.[1]  Forty-five percent of these injuries are severe, including fractures, internal injuries, concussions and dislocations.[2]  Among children ages 4 and under, most traumatic brain injuries occur on the playground.[3]  From 2001 through 2008, the US Consumer Product Safety Commission (CPSC) investigated 40 deaths associated with playground equipment.[4]  The average age of the victim was 6 years old.

Every four years, the National Program for Playground Safety (NPPS) visits more than 3000 of America's playgrounds in schools, child care facilities and parks.  Considering the standards set forth by the CPSC, as well as the American Society for Testing and Materials, the most recent NPPS survey resulted in an average grade of C+ for safety, up slightly from the C grade posted from the previous survey.  With these less than stellar safety grades, and an alarming rate of serious playground related child injuries each year, parents and caregivers must be vigilant in their efforts to keep kids safe on the playground.  Use this simple checklist to help make sure your local community or school playground is a safe place to play:

1. Make sure surfaces around playground equipment have at least 12 inches of wood chips, mulch, sand, or pea gravel, or are mats made of safety-tested rubber or rubber-like materials (soft surfaces reduce the risk of injury and are better able to absorb shock from a fall than non-absorbing surfaces like asphalt, grass or concrete);
2. Check that protective surfacing extends at least 6 feet in all directions from play equipment. For swings, be sure surfacing extends, in back and front, twice the height of the suspending bar;
3. Make sure play structures more than 30 inches high are spaced at least 9 feet apart;
4. Check for dangerous hardware, like open "S" hooks or protruding bolt ends;
5. Make sure spaces that could trap children, such as openings in guardrails or between ladder rungs, measure less than 3.5 inches or more than 9 inches;
6. Check for sharp points or edges in equipment;
7. Look out for tripping hazards, like exposed concrete footings, tree stumps, and rocks;
8. Make sure elevated surfaces, like platforms and ramps, have guardrails to prevent falls;
9. Check playgrounds regularly to see that equipment and surfacing are in good condition; and
10. Carefully supervise children on playgrounds.[5]

Parents and child care providers can learn more from an informative brochure published by the National Recreation and Parks Association called “the Dirty Dozen,” which points out the 12 most serious hazards found on public playgrounds.  You can order copies online at www.nrpa.org or by calling NRPA Publications Orders at 866-538-1926.

A recent report released by the National Research Council’s Transportation Research Board concluded the National Highway Traffic Safety Administration (NHTSA) acted appropriately in discontinuing its investigation of unintended acceleration claims with Toyota vehicles. The report was prepared in response to a number of consumer complaints claiming that Toyota and Lexus vehicles suddenly accelerated without driver input.  In some cases, vehicles allegedly spontaneously accelerated when the driver claimed they were pressing the brake pedal.

Despite previous claims and prior recalls, this issue hit the national stage after a fatal accident in August, 2009, involving an off-duty California Highway Patrol officer driving his family in Lexus ES. Floor-mat entrapment was later determined to be the cause, involving a non-original, all-weather mat.

Several large-scale recalls were issued in the wake of this tragedy to examine potential causes for the unintended acceleration events.  Factors considered included floor mat replacement, floor mat anchors, modifications to gas-pedals to reduce the risk of  mat entrapment risk, and software updates enabling smart-throttle brake override to prevent unintended acceleration in certain late-model vehicles.

The NHTSA determined mat entrapment, misapplication of the gas pedal, and sticking pedals were the cause of these incidents, and not malfunction of the electronic throttle system.  These findings were corroborated by a separate investigation by the National Aeronautics and Space Administration (NASA).http://news.consumerreports.org/cars/2011/02/nasa-report-blame-floor-mats-and-pedals-toyota-already-addressed-sudden-acceleration-sua-problems.html

The report recommends an advisory committee to the NHTSA be formed to keep the government up to date on current and developing technologies so that the agency can be more proactive in dealing with technology-related safety issues.  The report also calls for a review of Office of Defects Investigation (ODI) with the goal of improving the ability to identify and deal with  problems related to increasingly complex electronic systems which may leave no physical trace of defect or malfunction.

Another recommendation was to have event data records, a vital aid to investigators, installed on all new vehicles. The Research Council also endorsed further research by the NHTSA regarding pedal layout and keyless ignition designs, and emphasized the importance of human factors in electronic system design.

Source: www.consumerreports.com

Whether you are a sports fan or not, when ESPN covers a story, people listen.  This is especially true the week before the Super Bowl, so when ESPN chose a special story to air during the week leading up to the big game, you just know it is important and a ‘must see.’  Last week ESPN travelled to Maple Valley, WA to do an interview with Zackery Lystedt and his parents, Victor and Mercedes, as part of a special report for its “SportsCenter” television show.  The report focused on “Safety in the NFL,” and the recent and future rule and equipment changes to make the game safer for players at all levels and ages.   The change started in Washington and with Zackery Lystedt.  Two years ago the NFL Commissioner, Roger Goodell, came to Seattle, WA as an Honorary Chair of the Brain Injury Association of Washington’s Annual Fundraising Gala.  Mr. Goodell met Zack, medical specialists, and advocates and credits this visit with changes we are now seeing in the NFL.  The 45 minute episode on ESPN contains a 5 minute feature story on the Lystedts, the law named after him, the Brain Injury Association of Washington, and how the NFL is changing the game.  Zack’s story is one worthy of your time and one that will warm your heart.

ESPN SportsCenters Special Report – Life Changed by Concussions

Now that wintery, snowy weather is clearly upon us, this blog will address some of the common questions that may arise due to the weather.

My neighbor’s tree fell on my house – who is responsible for the damage?

This seems to be an all too common problem recently.  If your neighbor has a large tree (or any size tree) that falls on your property, your insurance policy will cover the damage.  Your homeowner’s policy will cover damage to your property, regardless if it was caused by your neighbor’s tree.  The exception is damage caused by melting snow.  Typically, your homeowner’s policy will only cover damage caused by melting snow if you have flood insurance.  It is important to check your policy and update it as necessary.

I have a sidewalk on my property: do I have to clear it?

Well, the answer is “it depends.”  If you are a business owner then yes, you do.  Washington state does not follow the “natural accumulation rule,” so if your property has a  parking lot or sidewalk on it, it is your responsibility to clear it.  The law does not distinguish between natural and artificial conditions, so if you have snow, remove it. The duty to protect people from harm is the same in both situations.  If you are a private homeowner, then the answer, surprisingly, is no.  Absent any local ordinance, there is no duty to clear the sidewalk in front of your house.  However, just about every city, town and county in Washington has an ordinance requiring homeowners to clear their sidewalks in snowy weather.  In addition, you can be fined if you fail to keep your sidewalk cleared as a homeowner. So, be safe and keep that sidewalk clear.

Car accidents:  is it my fault if I skidded on snow or ice?

If you are involved in a collision in snowy or icy conditions, first call 911.  If you are the unfortunate participant in a collision involving snow or ice, there is no “free pass” for snow and ice conditions.  If you crash into someone because of the weather, you are still liable.  In fact, the law imposes a heightened duty, not a lessened duty of ordinary care  in adverse weather.  So, if you know there are snow and ice conditions, slow down, increase your following distance and drive with your lights on.

If you have any questions concerning adverse weather conditions and potential liability arising from those conditions, the attorneys at Adler Giersch, PS are ready and willing to assist.  So, stay warm, keep dry and be safe out there.

On January 2, 2012, doctors in Washington became subject to new rules regarding prescription of widely-used pain medication. These rules affect treatment of patients with chronic pain not associated with cancer or end-of-life pain control.

Citing a 395% increase in unintentional poisoning from prescription pain medication between 1995 and 2009, the Washington state legislature passed a law in 2010 (ESHB 2876) requiring five different medical boards to create new rules for prescription of opioid medication. The rules are intended to improve patient safety and provide doctors with guidelines for prescription of these powerful drugs.

The regulatory boards for seven types of practitioners developed rules for prescription of pain medication. The practitioners covered by the new rules include physicians and physician assistants, osteopaths and osteopathic physician assistants, advanced registered nurse practitioners, dentists, and podiatrists.

The new rules apply to drugs known as opioid analgesics. Opioids are a class of drugs that affect specific pain receptors in the brain. Natural opioids are derived from a specific alkaloid in the opium poppy. There are now many synthetic opioids as well. Common drugs within this class, and covered by the new rules, include methadone, morphine, codeine, hydrocodone (e.g., Vicodin), oxycodone (e.g., OxyContin, Percocet), fentanyl and many others.

The new rules do not apply to prescriptions for acute pain, such as a new injury, or for post-surgical pain. They are intended to provide guidelines for treating patients who have chronic pain, defined as pain lasting over three months and not related to treatment for cancer or hospice care.

Physicians will be required to keep thorough records of a patient’s history, potential for drug abuse, and the need for opioid medication. In certain circumstances, such as dosage over a set limit, doctors are required to consult a pain management specialist in one of several ways. Criteria for exemption from the consultation rule and for qualification as a pain management specialist are also set out.

While the new rules are intended to reduce the incidence of prescription drug abuse and death associated with these drugs, the real effects of the regulations will only be known with time. Treatment of pain is an important part of the practice of medicine. However, the potential for abuse of prescription medication makes some doctors are wary of prescribing these drugs. Some doctors are relieved to have guidelines to follow. Some doctors find the requirements daunting and intend to simply refuse to treat chronic pain patients and require them to obtain prescriptions from a pain management specialist. There is concern that this will result in some patients being unable to obtain necessary prescriptions either as a result of the availability of specialists in their area or lack of insurance coverage for such specialists.

For some, the inability to access necessary medication may result in reduced functionality, poor quality of life and unnecessary suffering. For others, the new rules may provide enough of a barrier to avoid dependence and addiction. As with any new law, time will tell.

As the Chairman of the Brain Injury Association of Washington, I was invited to participate in a movie trailer for “A Not So Still Life,” an inspirational documentary of hope and triumph of local artist and traumatic brain injury survivor, Ginny Ruffner. This is an amazing story with a heartwarming message of never giving up and following your passion in life. It’s a 2-thumbs up documentary.

We were very fortunate to have Ginny Ruffner as our keynote speaker at the Brain Injury Association of Washington’s 5th annual Gala, Dinner, and Auction last October at the Grand Hyatt Seattle.

If you are interesting in obtaining a copy of the movie, simply contact my office at 206.682.0300 or email my assistant, kcruse@adlergiersch.com.

A Not So Still Life TBI Testimonial

Winter weather is upon us, whether we like it or not.  While the Northwest often fares better than many parts of the country when it comes to harsh winter weather, there is no denying that winter driving can be both challenging and dangerous for automobile travel.  Drivers should be cautious when driving in adverse weather conditions and be familiar with the rules for safely dealing with winter road emergencies.

Here are some tips to keep you and your loved ones safe during the winter driving season:

• Avoid driving while you’re fatigued.
• Be sure your tires are properly inflated, and never mix radial tires with other tire types.
• Keep your gas tank at least half full to avoid gas line freeze-up or running out of gas if     inclement weather causes severe traffic snarls.
• Avoid using your parking brake in cold, rainy and snowy weather.
• Do not use cruise control when driving on any slippery surface (wet, ice, sand).
• Always look and steer where you want to go.
• Wear your seat belt EVERY time you get into your vehicle.
• Check local weather reports prior to a long-distance drive or before driving in isolated areas. Delay trips if bad weather is expected. If you must travel, inform others of your travel route, destination, and estimated time of arrival.
• Pack a basic emergency kit in your vehicle which should include: flashlight and batteries, blankets, gloves, hats, food, water and any needed medication in your vehicle.
• Stay with your vehicle if you become snow-bound. It provides temporary shelter and makes it easier for rescuers to locate you.  Don’t try to walk in a severe storm. It’s easy to lose sight of your vehicle in blowing snow and become lost.
• Tie a brightly colored cloth to the antenna or place a cloth at the top of a rolled up window to signal distress.
• Keep the dome light on at night, if possible. It only uses a small amount of electricity and will make it easier for rescuers to find you.
• Make sure the exhaust pipe isn’t clogged with snow, ice or mud. A blocked exhaust could cause deadly carbon monoxide gas to fill the passenger compartment of your car if the engine is running.
• Use whatever is available to insulate your body from the cold. This could include floor mats, newspapers or paper maps.
• DRIVE SLOWLY. Everything takes longer on snow and ice-covered roads; accelerating, stopping, turning, nothing happens as quickly as on dry pavement.   Slowly applying the gas is the best method for regaining traction and avoiding skids. Allow extra time and distance to slow down for a stop sign or traffic light. Remember: It takes longer to slow     down on snowy or icy roads.  Give yourself time to maneuver by driving slowly.
• Allow greater following distance between your vehicle and the vehicle ahead of you.  The normal dry pavement following distance of 3-4 seconds.  This should be increased to 8-10 seconds to provide an increased margin of safety for emergency stops.
• Know your brakes. Whether you have antilock brakes or not, the best way to stop is threshold breaking. Keep the heel of your foot on the floor and use the ball of your foot to apply firm, steady pressure on the brake pedal.
• Don’t stop if you can avoid it. It is harder to start moving from a full stop on snow or ice that it is if your vehicle is still rolling.
• Don’t power up hills. Accelerating on snow-covered roads often causes your wheels to spin and lose traction.  Try to get some inertia going before you reach the hill and let that inertia carry you to the top. When crest a hill, reduce your speed and proceed down the hill as slowly as possible.
• Don’t stop going up a hill. There’s nothing worse than trying to get moving up a hill on an     icy road. Get some inertia going on a flat roadway before you take on the hill.

Source: www.aaaexchange.com

US Transportation Secretary Ray LaHood announced recently that the updated traffic fatality data for 2010 indicated that highway deaths are at the lowest levels they have been in six decades.[1]  This is apparently due in part to safer roadways and the vast improvements in vehicle safety that have occurred since 1949 – the last time we recorded a similar number of highway deaths.

This is indeed good news, but while vehicle technology and corresponding vehicle safety has changed for the better, distracted driving injuries and fatalities are becoming an increasing problem.  Because of this problem, NHTSA recently unveiled a new measure of fatalities related to distracted driving, called “distraction-affected crashes.”  This new measure is designed to more closely track those fatalities in which a driver was distracted by dialing a cellphone, texting, or was distracted by an outside person or event.  Under the new refined system, the new data released by NHTSA using its refined methodology showed an estimated 3,092 fatalities in distraction-affected crashes in 2010.[2]

NHTSA also recently completed a national survey that highlights the problem:

• Three fourths of survey respondents indicated they answer cellphone calls on most trips.
• Survey respondents acknowledged few situations when they would not use their phone or text – but over one third felt unsafe when riding in vehicles in which the driver is texting and support bans on texting and cellphone use.[3]

So what does all of this mean?  Obviously it is a complicated and complex problem that is not fully understood.  I think part of the problem is that most drivers assume that they can handle all distracted driving situations, even when the data is clear that is not true.  So, be safe and don’t use your cellphone while driving for anything except emergencies.  I am reminded of a sign that I saw at a local headstone company – “Put the cellphone down and stop texting – we can wait.”  Truer words were never written.

Many of us see things that are outrageous every day – whether it’s on tv, in our community or on our daily commute to work.   Did you know that under Washington law there is an actual claim for outrage caused by a third party?  A claim for outrage is also known as the intentional infliction of emotional distress.  To recover for outrage, you must prove the following elements:

• Extreme and outrageous conduct;
• Intentional or reckless infliction of emotional distress; and
• Actual result to you of severe emotional distress.[1]

To prove extreme and outrageous conduct, it is not enough to show that the defendant acted intentionally or even criminally, or that he or she intended to inflict emotional distress, or even that his or her conduct can be characterized by malice.  Liability for outrage exists only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.

For example, a claim for outrage has been found to exist in the stalking of a former girlfriend[2] and an employer’s intentional exposure of employees to toxic chemicals[3].  The conduct must result in severe emotional distress to the plaintiff.  While bodily harm would be an indication of severe emotional distress, severe emotional distress short of bodily harm is sufficient.

For decades, automakers improved vehicle fuel economy by reducing vehicle weight.   Since smaller generally meant reduced crash worthiness, one of the drawbacks of choosing fuel economy was increased risk of injury in a crash.  With the recent rise of hybrids, however, this is no longer an automatic tradeoff.

The Highway Loss Data Institute (HLDI), an affiliate of the Insurance Institute for Highway Safety, has found that passengers in hybrids actually fare better than passengers in the same gas-only models.[1]  In fact, 27 percent fewer injuries were reported in hybrids than the same nonhybrid vehicle.  This held true for fatalities as well, with 25 percent fewer fatalities in hybrids.

The difference in injury odds is attributed in large part to the greater weight of hybrid models.  Hybrids are, on average, 10 percent heavier than their standard counterparts due to the weight of battery and other equipment required in the hybrid.  Weight and mass have long been known to be major factors in injury risk and this seems to hold true where all other factors are the same.

The HLDI compared the number of medical claims filed in collisions in 25 different cars where both standard and hybrid models were available.  For example, injury claim statistics for the Honda Civic standard were compared to injury claims filed for occupants of Honda Civic Hybrids.  (Toyota Prius and Honda Insight were not tested since neither has a conventional counterpart.)  All hybrids performed better than their standard counterparts regardless of model.

“Going green” on the road may no longer mean trading economy for safety.  While smaller cars, even hybrids, will never survive crashes as well as large cars, hybrid consumers can consider safety issues with new positive data.