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Recent Change to Medical Malpractice Statute of Limitations Affects Minors Injured Through Medical Negligence

Categories: Personal Injury Resources

By Arthur D. Leritz. Posted on .

Navigating a personal injury claim can be daunting – especially when it involves a claim of medical negligence by a healthcare provider.  This is especially true in dealing with the “Statute of Limitations” in such a case – the deadline when a medical malpractice claim must be filed or your claim will be forever barred.  Generally, a medical malpractice claim must be filed within three years of the negligent act or omission, or one year after the patient discovered or reasonably should have discovered the negligent act or omission, whichever is later.[1]  Confused yet?  It gets worse:  Prior to a recent Washington Supreme Court case, this time period was not suspended if the person injured by medical negligence was a minor, as is common in other negligence cases –  the theory being that knowledge of the negligent act would be imputed to the minor’s parents and they could file suit on behalf of the minor. 

This changed with the recent case of Schroeder vs. Weighall.[2]  In that case, the injured party, a minor at the time of the alleged negligence, filed his lawsuit 14 months after discovery of the negligence – two months too late under the old statutory scheme.  The Washington Supreme Court in Schroeder held that it is unfair to particularly burden a vulnerable minority (minors) not accountable for their status and that the RCW 4.16.190(2) places a disproportionate burden on the child whose parent/guardian lacks the knowledge or incentive to pursue a claim on the child’s behalf. Courts in other jurisdictions have recognized this problem, noting that statutes similar to RCW 4.16.190(2) have the greatest impact on children in the foster care system, children with minor parents and parents who are simply not concerned.

Therefore, the Court in Schroeder struck down RCW 4.16.190(2) as violating the State’s equal protection clause of the State Constitution, holding that the Statute of Limitations for medical negligence is tolled (suspended) during the time the person is a minor. 

If you have any questions on the Statute of Limitations for a medical negligence claim or questions on other Statutes of Limitation, the attorneys at Adler Giersch, PS are ready and willing to assist you.

  



[1] RCW 4.16.350, RCW 4.16.190.

[2] Schroeder v. Weighall, 316 P.3d 482 (filed January 16, 2014)

BUI Laws Toughened Up as of 2013 Boating Season

Categories: Personal Injury Resources, Practical Tips You Can Use

By Steven J. Angles. Posted on .

Summer on the waters of Washington State means getting boats out of dry dock, picturesque  white sails dotting the horizon, and flotillas of vessels grouped together to celebrate our  spectacular weather.  However, as of July 28, 2013, the Washington State Legislature has empowered law enforcement to crack down even more on boaters that operate their vessels under the influence.

According to Washington State Park data, alcohol is a factor in 30 percent of boating fatalities.[1] Senate Bill 5437, signed by Governor Inslee on May 16, 2013, creates stiffer penalties for boating under the influence (“BUI”) and expands prior BUI laws to include offenses for operating while under the influence of marijuana.  Boaters should be aware of the following new changes[2]:boating

  1. Per the revisions to RCW 79A.60.040, the penalty for BUI is no longer a misdemeanor (which carries a maximum of 90 days in jail and a fine of no more than $1,000.00.)  Boaters will now face gross misdemeanor charges for BUI, which means a maximum sentence of 364 days in jail and a fine of up to $5,000.00.
  2. Boat operators are deemed to have given implied consent to have their breath or blood tested for the concentration of alcohol, marijuana, or other drugs in their system, subject to RCW 46.61.506.  If the operator refuses to take the test, they will be issued a class 1 civil infraction under RCW 7.80.120 that carries a penalty of $1,000.00.
  3. Law enforcement officers are authorized to issue citations when investigating boating accidents, or, perform an arrest for violations of any criminal statutes.
  4. Operating a vessel without the proper safety equipment may result in citations for both the owner and operator of the vessel

In essence, the new laws allow law enforcement on the water more of the authority already permitted when investigating DUI cases on land.  The laws are also clearly anticipating the potential rise in BUI incidences due to the legalization of marijuana in Washington State.

Injuries caused by collisions on the water present special challenges for the injured parties, law enforcement, and emergency medical personnel.  An injured person may have to wait much longer to be evaluated at the scene for injuries due to the distances involved and the generally slower nature of boat travel.   Often times, there are few independent witnesses to what actually happened to cause the collision, making it difficult for law enforcement to perform a complete investigation.  In addition, there is the ever-present danger that an injured party may fall overboard and injure themselves more severely.

The attorneys at the law firm of Adler Giersch PS are experienced in cases of injuries from vessel collisions, and are available for a free consultation.



[1] http://www.parks.wa.gov/newsreleases/?number=%2013-021

[2] http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/Session%20Laws/Senate/5437-S.SL.pdf

Department of Health raises ceiling on copy fees for patient records

Categories: Personal Injury Resources

By Jacob W. Gent. Posted on .

Medical recordUnder the Uniform Health Care Information Act (HCIA), health care providers are allowed to charge certain fees to produce copies of a patient’s medical records.  The Act states copy charges may be adjusted every 2 years for inflation based on the consumer price index.  Recently, the Washington State Secretary of Health updated the maximum charges providers are permitted to charge for records copies.

Effective July 1, 2013, reasonable fees for duplicating health care records are as follows:

  • A maximum $24.00 flat fee for clerical searching and handling, up from $23.00 over the last two years;
  • A maximum $1.09 per page for the first 30 pages of records, up from $1.04; and
  • A maximum .82¢ per page after the 30th page, up from $.79.

Rates are based on the Seattle-Tacoma consumer price index and are reviewed every two years. These rates will remain in effect until July 2015.

Mobile Hand-Held Devices Can Increase Musculoskeletal Symptoms

Categories: Personal Injury Resources, Practical Tips You Can Use, Spine Injury

By Steven J. Angles. Posted on .

Did you know that the average human head weighs 10 pounds in a “neutral position” – where the ears are aligned over the shoulders?  Did you know that for every inch you tilt your head forward, the pressure on your spine doubles? In other words, if you are reading this blog with your head leaning down, or slouched over in a chair, you are asking your neck to support 20-30 pounds of weight.[1]   Now ask yourself – how many hours per day do you spend hunched over your smart phone, tablet, or some sort of mobile electronic device?  Your musculoskeletal system, particularly your neck and arms, may be paying the price for the convenience of having instant and portable access to all that information.

Mobile DeviceIn 2011, Canadian researchers Berolo, Wells and Amick conducted the first epidemiological study to investigate the frequency of upper body musculoskeletal pain of in mobile device users. [2] This was the first study of this fast-growing health concern to provide empirical evidence of relationships between mobile device use and symptoms of the upper extremity and neck. Participants in the study reported their daily use of mobile devices and self-reported pain symptoms through an internet based questionnaire. 104 students and 32 staff or faculty members participated in the study (80 females, 60 males). 94% were right hand dominant, and 26% use both thumbs to type (vs. one thumb typing)).  The study revealed:

  • 98% of the study participants used a hand-held mobile device for emailing, scheduling, browsing the internet, making phone calls, watching videos, taking pictures, or gaming.
  • Participants used such devices for a mean time of 4.65 hrs/day
  • 84% reported at least some pain in at least one body part
  • Pain of any severity was reported as follows:
    • 68% in the neck
    • 62% in the upper back
    • 32% in the right elbow and lower arm
    • 52% in the right shoulder
    • 46% in the left shoulder
    • 27% in the left elbow and lower arm
  • Statistically significant associations were observed between total time spent using a mobile device and pain in the left shoulder, the right shoulder, and the neck

The study also indicated that musculoskeletal symptoms can also develop in the extremities with activities such as typing, as pain in the hands was a common complaint, particularly at the base of the thumbs.[3]  This would be consistent with case reports suggesting a link between device use and both tenosynovitis and osteoarthritis [4] at the base of the thumb (carpometacarpal joint), as well laboratory studies showing that smaller keyboards (as compared to desktop or laptop computers) may increase “static strain” on the hand and arm muscles.

While mobile electronic devices have become an indispensable part of life for many people, the Berolo Study underscores the importance of taking simple steps to limit the amount of time we place our bodies in an abnormal position that can increase stress on the muscles, cause fatigue, muscle spasms and even stress headaches.  These include improving posture, raising electronic devices towards the head (not vice-versa), taking breaks to break up static body positions, and using speech-to-text functions rather than typing.

Individuals already suffering from musculoskeletal injury due to trauma may be at a higher risk for complications arising from the over-use of personal electronics.  Postural strain, overuse, or prolonged immobilization in these patients can result in additional changes in posture or body mechanics that may bring about spinal alignment problems and muscle shortening.  As such, patients recovering from traumatic injury to neck, back, arms, or hands should be particularly aware of their habits while texting or surfing the web on their electronic tablets to prevent additional injury or a prolonged recovery.

 

 



[1] http://www.cnn.com/2012/09/20/health/mobile-society-neck-pain

[2] http://www.ergoweb.com/news/detail.cfm?id=2722

[3] http://www.ergoweb.com/news/detail.cfm?id=2722 Id.

[4] http://www.jaoa.org/content/110/5/294.full

Washington’s Coalition to Reduce Underage Drinking Continues the Fight

Categories: Auto Accidents, Personal Injury Resources

By Richard H. Adler. Posted on .

I had the distinct privilege and honor to attend the monthly meeting of Washington’s Coalition to Reduce Underage Drinking (RUaD) this last Friday in Olympia.  A special guest was State Rep Roger Goodman and he presented for an hour talking about DUI legislation.  I was seated between Amy Ezzo, Washington’s Director for MADD and a representative from the Washington State Patrol.  Around the room were various representatives from the liquor control board, DSHS, the Attorney General’s office, as well as various other representatives of state agencies.  It was truly inspiring to be amongst these talented individuals, all of whom are working together to reduce underage drinking in the state.

RUaD has been working tirelessly to raise awareness and support legislation that targets underage drinking since its inception in 1998.  Here are some alarming facts pulled from the RUaD website on students and drinking:

  1. 40% of 12th graders reported having a drink in the last month.
  2. 23% of 12th graders reported riding in a car with a driver who had been drinking.
  3. 12% of 12th graders reported driving a car after they had been drinking.
  4. 19% of 12th graders reported drinking 3 or more days in the past month.
  5. 25% of 12th graders reported drinking 5 or more drinks at least once in the past two weeks.
  6. 36% of 12th graders reported getting alcohol from friends, 31% reported getting alcohol at a party and 19% reported giving money to someone to buy alcohol for them.

Now, for the good news:  parents are the #1 influence on their kids on this issue.  So, it is important to keep this dialogue with your kids current, as the percent of kids who think you would catch them if they drank alcohol dropped from 72% in 8th grade to 37% in 12th grade.

For more information about underage drinking, go to their website at http://www.starttalkingnow.org/.

Why Being “Anti-social” is Best After an Injury

Categories: Personal Injury Resources, Practical Tips You Can Use

By Steven J. Angles. Posted on .

For many people after an injury, they’re stuck at home, out of work and often isolated from friends and family.  To pass the time and stay connected they frequently take to social media like Facebook and Twitter to reach out, vent, etc. and it’s no wonder.  Facebook users alone spend almost 7 hours per month on the site and that number is growing daily.

We’ve all heard the adage to be careful what you share, but in today’s world it’s more important than ever. It is becoming increasingly difficult to keep track of what you post in social media and whether it is public or private, especially if a friend or family member has tagged you in a post or photo.iStock_000021488833XSmall (2)

Just the same, it is becoming easier and easier for insurance companies to search your name, general location or even your spouse’s name to find “evidence” to discredit you. They can use this information to track down photos, dates and more and then use the information against you to claim that you’re not hurt.

I recall being involved in a case years ago as a defense attorney when my client’s insurance company was investigating a person who suffered a spinal injury and was unable to work.  This person’s job required long hours of sitting in front of a computer.  In a matter of moments with a simple, free search on Facebook, the insurance adjuster found pictures from a recent trip the person had taken out of town. The insurance company, in turn, argued that if the person was “really hurt,” they never would have been able to travel any distance (never mind that the reason for travel was to visit a terminally ill friend). The point is, the insurance company was able to introduce doubt into the case using basic social media search techniques, making it harder for the injured person to recover their losses.

I also recall another case in which a driver who caused a motor vehicle collision started reaching out to the passenger she injured, her “best friend,” on Facebook. The injured passenger did not feel much like socializing, but wanted to try and maintain the friendship.  She would occasionally send quick responses by simply writing, “I’m okay,” or “I’ll be fine” to the driver.  The relationship between the two cooled as the months went by. The driver ultimately provided her insurance company with screen shots of all of the “conversations” with the injured friend.  The insurance company used the screen shots to document how, in its opinion, the injured passenger had regularly shown that she was recovering quickly from her injuries, despite medical records to the contrary.

Social media is a wonderful way to stay connected, but if you’ve been injured you must be extremely careful not to discuss it in social media.  Avoid posting pictures of activities or “checking in.” Restrict your privacy settings and “un-tag” yourself from photos taken by others. Taken out of context they can be damaging to your case. Ultimately, the safest solution is to “go dark” while your claim is being resolved.

Fire Prevention 101: Keep Your Family Safe

Categories: Personal Injury Resources

By Melissa D. Carter. Posted on .

October marks the month of national Fire Prevention and Awareness.  The risk of serious injury and death from home fires is real.  In 2011, 384,000 homes across the country required fire department emergency responses, which claimed the lives of 2,640 and injured 13,350 others.[1]  Most victims of fires die from smoke or toxic gases and not from burns.[2]  85% of all US fire deaths in 2009 occurred in homes.[3]  Of the home fires that cause death, 40% had no smoke alarms.  The main reason that smoke alarms fail to operate during home fires is missing or disconnected batteries.

Landlord Responsibility to Promote Fire Safety

In Washington, as in many states, a landlord of a residential unit must ensure that all units have smoke detection devices.[4]  The smoke detection device must be designed, manufactured and installed inside the dwelling unit in conformance with nationally accepted standards and per Washington state rules and regulations promulgated by the director of fire protection.  While a tenant must maintain the smoke detector and test/replace batteries periodically, the owner alone is responsible for installation.  The landlord must also ensure the smoke detector’s performance whenever a unit becomes vacant and before re-letting it.

A landlord who does not comply with this law is subject to civil penalty and may be liable to any tenant who is injured from smoke or fire due to the lack of a functioning smoke detector.

Keep Your Home Fire Safe

  • Cooking Safely: never leave cooking food unattended on the stove.  Keep all flammable objects, such as potholders, towels, and clothing, away from flame.  Also keep the handles of pots turned in.
  • Smoking: try to quit.  If you must smoke indoors, never smoke in bed or leave a burning cigarette unattended.  Never smoke while drowsy or under the influence of alcohol or medications.  Don’t empty hot ashes into a garbage can.  Keep ashtrays away from furniture and curtains.
  • Staying warm: stay safe.  Keep any space heaters three feet away from any flammable objects, including curtains, furniture and bedding.
  • Alarms.  Install smoke alarms on every floor of your home, including the basement.  Install smoke alarms in all sleeping rooms, especially those occupied by a smoker.  Test smoke alarms once a moth using the test button.  Test and change your batteries every six months.
  • Escape plan.  Determine a home fire escape plan.  Have at least two exits for every room and agree on a meeting place outside with all household members.  Practice your escape plan twice a year with everyone in your home.

For more information on fire safety, go to:

http://www.wsp.wa.gov/fire/firemars.htm

For the duties of a landlord and tenant regarding smoke detectors go to:

http://apps.leg.wa.gov/rcw/default.aspx?cite=43.44.110

Learn More About Home Fire Prevention

 

  1. Ahrens M. The U.S. fire problem overview report: leading causes and other patterns and trends. Quincy (MA): National Fire Protection Association; 2003.
  2. Ahrens M. Home structure fires. Quincy (MA): National Fire Protection Association; 2011.
  3. Ahrens M. Smoke alarms in U.S. home fires. Quincy (MA): National Fire Protection Association; 2009.
  4. Centers for Disease Control and Prevention. Deaths resulting from residential fires and the prevalence of smoke alarms – United States 1991–1995. Morbidity and Mortality Weekly Report 1998; 47(38): 803–6.
  5. Centers for Disease Control and Prevention, National Center for Health Statistics (NCHS). National vital statistics system. Hyattsville (MD): U.S. Department of Health and Human Services, CDC, National Center for Health Statistics; 1998.
  6. Centers for Disease Control and Prevention. Web-based Injury Statistics Query and Reporting System (WISQARS) [Online]. (2010). National Center for Injury Prevention and Control, Centers for Disease Control and Prevention (producer). Available from: URL:www.cdc.gov/ncipc/wisqars.  [Cited 2010 Sept 21].
  7. Finkelstein EA, Corso PS, Miller TR, Associates. Incidence and Economic Burden of Injuries in the United States. New York: Oxford University Press; 2006.
  8. Flynn JD.  Characteristics of home fire victims. Quincy (MA): National Fire Protection Association; 2010.
  9. Hall JR. Burns, toxic gases, and other hazards associated with fires: Deaths and injuries in fire and non-fire situations. Quincy (MA): National Fire Protection Association, Fire Analysis and Research Division; 2001.
  10. International Association for the Study of Insurance Economics. World fire statistics: information bulletin of the world fire statistics. Geneva (Switzerland): The Geneva Association; 2009.
  11. Istre GR, McCoy MA, Osborn L, Barnard JJ, Bolton A. Deaths and injuries from house fires. New England Journal of Medicine 2001;344:1911–16.
  12. Karter MJ. Fire loss in the United States during 2010,. Quincy (MA): National Fire Protection Association, Fire Analysis and Research Division; 2011.
  13. Parker DJ, Sklar DP, Tandberg D, Hauswald M, Zumwalt RE. Fire fatalities among New Mexico children. Annals of Emergency Medicine 1993;22(3):517–22.
  14. Runyan CW, Bangdiwala SI, Linzer MA, Sacks JJ, Butts J. Risk factors for fatal residential fires. New England Journal of Medicine 1992;327(12):859–63.
  15. Runyan SW, Casteel C (Eds.). The state of home safety in America: Facts about unintentional injuries in the home, 2nd edition. Washington, D.C.: Home Safety Council, 2004.
  16. Smith GS, Branas C, Miller TR. Fatal nontraffic injuries involving alcohol: a meta-analysis. Annals of Emergency Medicine 1999;33(6):659–68.


[2] Hall 2001.

[3] Karter 2011.

[4] RCW 43.44.110; See also Moratti ex rel. Tarutis v. Famers Ins. Co. of Washington, 162 Wn. App. 495, 254 P.3d 939 (2011).

Common Treatment Modalities for Facet Joint Injuries

Categories: Other Physical Injuries, Personal Injury Resources

By Melissa D. Carter. Posted on .

Almost everyone is familiar with the injury term “whiplash” as a result of spinal trauma.  What, however, is a facet joint injury, and what are the common treatment methods to reduce or alleviate the pain?

The facet (zygapophyseal) joints are the articulations or connections between the vertebraes in the spine and occur in pairs at each vertebral level. The facet joints work with the corresponding disc to link the vertebrae directly above and below to form a working unit that lends stability and weight-bearing capacity while permitting flexibility and movement of the spine.  The facet joints have a synovial lining, covered with hyaline cartilage.  These joints contain nerves, the medial branches, that transmit pain back to the spinal cord.  Injuries to the spine can inflame the facet joints, or cause the cartilaginous surfaces to wear away, causing back pain in the vicinity of the inflamed joint as the friction increases within the joint space.  On occasion, the pain is located several inches away from the inflamed joint, or even into the limbs.

Treatment of facet injuries includes physical therapy, acupuncture, spinal manipulation, massage, heat and medications to reduce pain.  Anesthetic and steroidal injections under fluoroscopic (x-ray) guidance are another common diagnostic tool that can provide very good therapeutic results in combating a facet joint injury.  Immediate alleviation of pain following a facet injection confirms the pain source.  If conservative treatment modalities provide only temporary relief, radiofrequency neurotomy can provide a longer lasting result.  Under this procedure, a radiofrequency probe deadens the small nerves that supply the facet joint to reduce pain.

A less traditional modality which can have very good results, but not always covered by insurance plans, is prolotherapy.  Prolotherapy involves repeated injections of a solution of concentrated dextrose (pharmaceutical-grade sugar water) and local anesthetic into the injured facet joint.  Prolotherapy is thought to encourage the body to naturally produce connective tissues, collagen and cartilage, in the injured area to reduce pain by stimulating the immune system to bring fibroblasts and chondroblasts to the pain area and to rejuvenate it.[1]



[1] http://www.mayoclinic.com/health/prolotherapy/AN01330

Settling Your Motor Vehicle Property Damage Claim After An Auto Collision

Categories: Auto Accidents, Personal Injury Resources

By Melissa D. Carter. Posted on .

Under the Insurance Fair Conduct Act (IFCA), your automobile insurance company must settle your vehicle damage claim in good faith.  Your insurer must:

  • make a good faith effort to communicate with the repair facility of your choice;
  • not arbitrarily deny your repair estimate;
  • not require you to travel unreasonably to obtain an estimate, repair your car or obtain a loaner car;
  • provide you with a copy of the estimate it prepares, or disclose reasons for denying your estimate;
  • provide a list of repair facilities within a reasonable distance of your principally garaged area;
  • consider any additional (related) damage the repair facility discovers during repairs;
  • limit deductions for betterment/depreciation to parts normally subject to repair and replacement during the life of your vehicle;
  • not recommend that you make a claim under your own collision coverage, if liability and damages are reasonably clear, solely to avoid paying claims under the liability insurance policy.[i]

If your vehicle is rendered a “total loss” after a collision, then your insurer must follow this established protocol:

  1. Replacing the loss vehicle: replace your vehicle with a comparable one that is available for inspection within a reasonable distance from where your vehicle is principally garaged.
  2. Cash settlement: based on the actual cash value of a comparable vehicle.
  3. Appraisal: resolve appraisal disputes per the policy terms.
  4. Settlement requirements: When settling a total loss vehicle per subsections (1) through (3) above, the insurer must:

a.  communicate its settlement offer to you by phone or in writing;

b.  base all offers on itemized and verifiable dollar amounts for vehicles that are currently available, or were available within ninety days of the collision, using appropriate deductions/additions for options, mileage or condition;

c.  consider relevant information supplied by you;

d.  provide you with a true and accurate copy of any “valuation report;”

e.  include all applicable taxes and fees.[ii]

Finally, your insurer shall not refuse to settle any property damage claim under your automobile policy based upon your refusal (or delay) in responding to your insurer’s demand that you submit to an independent medical examination in connection with your Personal Injury Protection (PIP) claim.

 



[i] WAC 284-30-390

[ii] WAC 284-30-391

Vehicle Recall Notices vs. Technical Service Bulletins – What’s the Difference?

Categories: Personal Injury Resources

By Arthur D. Leritz. Posted on .

Chances are, if you own a car or have watched the news lately, you are familiar with vehicle recall notices issued by the National Highway Traffic Safety Administration (NHTSA) for vehicle defects that can potentially be dangerous.  A safety recall can either be initiated by a NHTSA investigation or by the manufacturer.  Once aware of a potential safety issue, the manufacturer is obligated to notify the owner that the vehicle has a problem that affects its safety.  The owner then can have the car fixed, free of charge.

What I was surprised to learn back when I bought my first car is that this strict notification system only applies to safety issues – not technical service bulletins or other issues not affecting driver or passenger safety.  A “technical service bulletin” is created by the manufacturer and deals with parts or service issues that have cropped up after a vehicle is manufactured, but that typically do not affect the car’s safety.

In my case, a few years ago I took my then new car to the dealer because the MIL (malfunction indicator light) kept coming on.  An annoying problem, but the car seemed to drive fine otherwise.  Once the problem was identified (a defective mass airflow sensor) it was easily fixed – but the dealer wanted to charge me several hundred dollars for the fix.  Fortunately, the nice person at the counter looked up the service bulletin for my year and model and was able to quickly determine that the part was defective and that the dealer was replacing these parts free of charge.

I was fortunate that I had an honest counter representative, but others may not be so lucky.  I can see how a person could be taken advantage of in this situation.  Fortunately, NHTSA maintains a database of all technical service bulletins for all makes and models and there are other web sites that provide a similar service.

So, if your MIL comes on or your car is performing poorly, go online and see if there are any technical service bulletins for your car.  It could mean the difference between and expensive fix and a free one.