Its been almost three years since Washington State Governor Christine Georgoire signed the first-in-the-nation law protecting youth athletes and concussion by removing the child from a game or practice after a concussion and requiring medical clearance by a licensed healthcare provider.  The law was named after Zackery Lystedt.  Since that day, the three key components of the Zackery Lystedt Law are now law in 36 states (most recently Hawaii and Florida) and the District of Columbia.  Since 2009, the Lystedt Family continue to spread their message to ensure that all youth athletes are protected from experiencing the same tragedy by preventing preventable brain injuries.  Richard H. Adler, as Chairman of the Brain Injury Association of Washington has worked with many other coalition partners, including Stan Herring, MD (UW Medicine/Seattle Seahawks Team Physician), over the last three years have with countless Monday lunch phone conferences, presentations, and traveling to deliver the message, “when in doubt, sit them out.”

USA Football reported on the Zackery Lystedt Law, three years later.  Click here to read the full article.

Traumatic Brain Injury (TBI) is a contributing factor to a substantial number of deaths and permanent disabilities each year.  A TBI is caused by a bump, blow, jolt or penetrating injury to the head.  The severity of a TBI may range from “mild” to “severe.”

There are an estimated 1.7 million TBI-related deaths, hospitalizations, and emergency department visits occur in the U.S. each year. Nearly 80% of these individuals are treated and released from an emergency department.  TBI is a contributing factor in one-third of all injury-related deaths in the United States, or about 52,000 deaths annually.[1]

TBI injuries result form a number of causes. Falls are the leading cause of TBI, resulting in over  520,00 TBI-related emergency department visits and 62,000 hospitalizations each year. TBI rates are highest for children aged 0 to 4 years and for adults aged 75 years and older.

Motor vehicle-related injuries are the leading cause of TBI-related deaths.  Motor vehicle–traffic injury rates are highest for adults aged 20 to 24 years.

According to data collected by the Center for Disease Control and Prevention, there was a 14.4% increase in TBI-related emergency department visits and a 19.5% increase in TBI-related hospitalizations  between 2002 to 2006.  Emergency department visits for fall-related TBI saw a dramatic increase between 2002 and 2006. There was a 62% increase in fall-related TBI injuries for children 14 years and younger, and a 46% increase for adults aged 65 and older; 46%.  Hospitalization for fall-related TBI rose 34% while fall-related TBI deaths increased 27% from 2002 to 2006.

Direct medical costs and indirect costs of TBI, such as lost productivity, totaled an estimated $60 billion in the United States in 2000.

There are a few simple things everyone can do to reduce the risk of traumatic brain injury, including:

1. Wearing a seat belt every time you drive or ride in a motor vehicle;
2.  Never driving while under the influence of alcohol or drugs;
3. Wearing a helmet and making sure your children wear helmets when:

• Riding a bicycle, motor cycle, snowmobile, scooter, or ATV;
• Playing contact sports of any kind;
• Using in-line skates or a skateboard;
• Riding a horse;
• Skiing or snowboarding.

4. Make living areas safer for infants and seniors by:

• Removing tripping hazards such as throw rugs in walkways;
• Placing  nonslip mats in the bathtub and on shower floors;
• Installing grab bars in the tub or shower and next to the toilet;
• Installing handrails on both sides of stairways; and
• Improving lighting throughout the home.[2]

If I am in an accident and the other driver gets a ticket, can I use that as evidence if I sue?

If you have ever caused a collision or been injured in a collision through the fault of someone else, this question has probably crossed your mind.  In most traffic collisions, the investigating officer typically issues a traffic citation to the at-fault driver at the scene.  Sometimes however, the facts are in dispute so the at-fault driver may not get a ticket at the scene, but may receive a citation in the mail at a later date.

If the at-fault driver is ticketed, the Supreme Court of Washington has held that evidence of the citation cannot be used in a later civil suit for personal injuries to prove fault. [1]  The public policy behind this decision is to prevent traffic courts from being overwhelmed with drivers who fear the broader implications if the citation is deemed committed.  If evidence of the citation was admissible to prove guilt in a later civil suit, there would be incentive for motorists to vigorously contest cases when only small or nominal damages were at stake, which would needlessly clog the traffic court system.

What do I do if I get a subpoena to testify at a contested citation hearing?

If you are injured in a collision and the at-fault driver is requesting a hearing to contest the citation, then you must respond to the subpoena and attend the hearing.  If you do not appear, the at-fault driver may get the citation overturned.  While this has no bearing on any later civil lawsuit for personal injuries, you should appear and provide testimony as to what occurred as it is your duty as a citizen to do so and you are required to comply with the subpoena.

In most instances, when you appear to testify the at-fault party may decide to admit the citation occurred and you will not need to testify.  If you do need to testify, it is a good idea to note the time when the hearing starts and ends –that way, you can order a copy of the transcript of the hearing.  Most municipal courtrooms are wired to record audio, and you can order the CD of the hearing for a small fee.  This is a good idea because while you cannot use the citation as evidence in a later suit for personal injuries, you can use the testimony of the at-fault party at the contested hearing in a later suit if the at-fault party decides to change his story.

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.

There are few things in life more exciting for teenagers, and more unnerving for parents than receiving the license to drive.  This important rite of passage marks the first big step toward adulthood and independence for a teen.  Parents play a vital role in this transition and must be proactive in educating the new driver to be safe and responsible behind the wheel.

According to a Governors Highway Safety Association (GHSA) report, overall traffic fatalities dropped during the first half of 2011.  However, the number of American 16- and 17-year old teenagers killed in motor vehicle collisions rose 11 percent during the same period, from 190 to 211.[1]

More than 20% of teens in the United States never receive driver’s education prior to receiving their driver’s license.  The number of teens who have not received driver’s education is even greater in states which do not require formal training.[2]  Driver’s education usually consists of 30 hours of classroom instruction and six hours of training behind the wheel.  The original goal of formal driver’s education when it was implemented in the 1950′s was to produce safer teenage drivers, who are four times more likely to be involved in a motor vehicle collision than older drivers.

It is not clear, however, that increasing the rate of driver education would result in fewer collisions.  According to Jean Shope, a professor at the University of Michigan Transportation Institute, driver education is effective in teaching teens the rules of the road and how to maneuver a vehicle, but it does not necessarily make them safer drivers.  Supervised practice driving over a period of many months makes a bigger difference in producing safe teen drivers.[3]

The website www.distraction.gov provides from suggestions on how to keeps teens safe while driving:

• Talk about the consequences of driving distracted with your teen.
• Establish safety rules, including forbidding talking or texting on the phone while driving.
• Have everyone in the family sign a pledge form to drive without distraction.
• Become familiar with your state’s laws about distracted driving, and educate your teen about the legal consequences of distracted driving.
• Be a good role model by turning your cell phone off while you drive.

Other facts and tips for parents to know in raising safe teen drivers include:[4]

Drive Now. Talk Later: Cell phone use is the most common distractions for drivers.  Dialing a hand-held device increases the risk of a motor vehicle collision by almost 33%.[5]

Pay Attention.  Nearly 80 percent of crashes and 65 percent of near crashes involved some form of driver inattention within three seconds before the crash.  A high percentage of the crashes reported by teens involved rear-ending a car that had stopped while the teen driver was looking away from the road.

Get Ready at Home – Not in the Car.  Activities such as applying makeup, fixing your hair, and eating while driving increases the risk of a crash or near-crash by almost 3 times.

Drowsy? Pull Over.  Drowsiness is a significant problem that increases a driver’s risk of a crash or near-crash by at least a factor of four.

Limit Teen Passengers.  Teen passengers can distract a beginning driver and lead to greater risk taking.  Fatal crashes involving 16-year-old drivers are much more likely to occur when other teenagers are in the car. The risk of a fatal crash increases in proportion to the number of teenage passengers.

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.

Two cases¹ recently decided by the Washington State Supreme Court clarified an existing rule which requires insurance companies who provide Personal Injury Protection (PIP) benefits to pay a fair share of legal costs incurred by injured persons who recover those benefits paid on behalf of the insurer.

As a rule, plaintiffs must pay their own attorney fees and costs when bringing legal action against another party.  However, there are certain exceptions.  In claims involving a motor vehicle collision, an injured party whose medical bills are paid by PIP insurance is required to reimburse the PIP insurer for those benefits paid from any settlement or judgment obtained from the at-fault party.  Under the “equitable fee sharing rule” first announced in Mahler v. Szucs², a PIP insurer is required to pay a pro rata, or proportionate share of the legal expenses incurred by the injured person who recovers from the third-party and reimburses the PIP carrier for those benefits paid.³  The PIP carrier typically contributes to those legal expenses by reducing the amount it is entitled to receive from the settlement.  The Mahler court reasoned that any recovery obtained by the injured person from a third party created a “common fund” from which the PIP insurer benefited and held that a PIP insurer could not benefit from the efforts of the injured party (and their attorney) in recovering the PIP benefits paid without contributing to the expenses incurred in securing that recovery.

Later cases expanded the Mahler rule to include situations where the injured party recovered funds from both the underinsured at-fault party and their own Underinsured Motorist (UIM) coverage⁴; and where the at-fault party was uninsured and the injured person received benefits under both the PIP and Uninsured Motorist (UM) coverage.⁵

In Matsyuk, the plaintiff was a passenger in a motor vehicle who was injured by the driver’s negligence.  Matsyuk’s medical bills were paid by the driver’s PIP coverage with State Farm.  Matsyuk later settled her negligence claim against the driver under their liability coverage, also with State Farm Insurance.  State Farm sought reimbursement of its previous PIP payments through an “offset,” or reduction, against the liability payment to Matsyuk.  Matsyuk demanded State Farm pay their a pro rata share of her legal expenses in accordance with Mahler.  State Farm argued it was not required to reduce its reimbursement claim under Young v Teti,⁶ a Court of Appeals decision which held a plaintiff was not entitled to recoup a pro rata share of attorney fees where the liability insurer and PIP insurers were the same.
The Court of Appeals upheld State Farm’s argument.  The supreme court reversed the appellate court, stating the Young decision was inconsistent with the Mahler rule, subsequently expanded by Winters and Hamm.

The Matsyuk decision is an important victory in that it further establishes a clear, consistent rule regarding the obligation of an PIP insurer seeking reimbursement of benefits paid to contribute to the legal expenses incurred by the injured party who secures that reimbursement.

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