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Disney Monorail Crash and Theme Park Oversight

Ed Normand — Mon, 13 Jul 2009 12:22:36 GMT

In a recent tragic theme park injury a 21 year old Disney employee was killed while operating a Monorail that collided with another Monorail in the Magic Kingdom in Orlando. After the crash the NTSB took jurisdiction and began its own investigation into the crash. Finally we will have some independent evaluation and oversight of the safety procedures at the big Florida theme. We have discussed many times in this blog that the theme parks in Florida have minimal oversight or independent governmental inspection of their safety. Again, why should the big three theme parks that cater to millions of residents and tourists be subject to less governmental safety oversight than is provided to the local County Fair?

In addition to the lack of governmental regulation, Florida has civil laws that bend over backwards to favor the theme parks over consumers. As an example, take the law of Common Carriers. Legally a common carrier is subject to an extremely high duty of care, that of a very careful person. As they should, after all, by offering to transport passengers for a fee they are subjecting them to the very real dangers of high speed traffic. In California, the theme parks are considered common carriers and subject to the high duty of care. Not so in Florida. Here the theme park transport systems and rides are not considered to be operated as common carriers and are not subject to the very careful person standard. Instead, the theme parks get away with the same standard of care in operating the transport systems and rides as the everyday motorist. Surely one would expect these large operations to be held at least to the same standard of care as, say, a Greyhound bus. Sadly they are not.

Perhaps with the intervention now of the Federal Government we can get some oversight and safety nets in place at the big parks.

Originally posted at InjuryBoard by Ed Normand

Zicam Warning Issued by FDA

Diego Madrigal — Wed, 17 Jun 2009 10:46:49 GMT

Zicam nasal gel can destroy or severely damage your sense of smell according to a warning issued by the Food and Drug Administration. The warning only applies to the nasal products, which I actually use. The warning was based on 130 complaints received by the FDA from people and their doctors stating that following use of those products people suffered a condition called "ansomia," which is a loss of the sense of smell.

Since 1999, the maker of Zicam has payed $12 million to settle over 300 lawsuits. However, they have never recalled the drug. In fact, even after this FDA warning, the maker of Zicam refuses to recall the drug. Nevertheless, before Zicam markets their drug again they will have to gain FDA approval.

Like I have said, I used this exact product and have not noticed any problems- but then again, I have not been looking. I wonder how many people have not noticed and are suffering from loss of smell. Hopefully the makers of Zicam recall their product and find a way to issue it again in a safe form.

Originally posted at InjuryBoard by Diego Madrigal

Hidden Dangers of Theme Park Rides

Ed Normand — Sun, 29 Mar 2009 14:01:31 GMT

While standing in line at at theme park in anticipation of enjoying a ride you have seen advertised on television you read a warning. It tells you not to ride if you are pregnant or if you have a back or neck injury. No problem there and so you proceed to the ride. While on the ride something about the ride causes you to smash a vertebrae, rupture a disc, or sustain a head injury. Should the parks be held responsible for these injuries where the park "guest' did nothing wrong, obeyed all warnings and there was no foreseeable likelihood of such an injury being sustained from the advertisements about the ride? What if the theme park operator knew others were hurt before on the ride but they deliberately make no mention of it in the warning? This is the true state of facts for many theme park rides.

Sadly, in Florida the big theme parks are legally allowed to keep most ride related injuries forever secret even when the injuries are sustained in the normal operation of the ride and even when the warning mentions nothing of the known prior injury. The parks intentionally withhold from the public information about ride injuries and instead go to great lengths to keep the data secret. Look up Florida Fifth District Court opinions on the subject. You will see the theme parks keep injury data secret and they are not obligated to report injuries except in very limited circumstances (in fact, the local fair is held to a higher injury reporting standard than the big 3 parks). To prove the point out of the multitude of injuries in the lawsuits cited in an Orlando Sentinel article today : "only nine of the 101 ride-related lawsuits found in the Sentinel's review of 2004-08 court cases were reported to the state as accidents when they occurred." The parks keep secret most of the injuries sustained in amusement park ride related injuries.

The theme park industry has cadres of lawyers who are hired to keep the information on ride injuries away from the public. Why would they do that if the rides are as safe as they claim. I have represented children with horrible permanent head injuries and facial scarring, others with broken bones and ruptured discs requiring surgery. All sustained from using the ride as instructed. Tell me where the warning explains those risks. Further on some of the rides the same injuries had been caused to others already on the same ride yet the warning makes no mention of the known danger.

Even after it is proved that the injury was caused by the ride, many times the parks do not do the right thing. Most people just want their medical bills paid but they get stonewalled by the parks. Often these are tourists from out of the country who do not have health insurance for U.S injuries. Other times U.S. health insurance does not cover the injury and so when the parks refuse to pay for even the medical bills indisputably caused by the ride "guests" must then come to a lawyer out of desperation.

The big parks make billions from advertising inviting guests to ride their rides. In turn, when an invited guest heeds all warnings, uses a ride in the manner intended, and yet sustains serious injury on a ride shouldnt the park pay for the damage caused by the ride? In my mind, that is simply the right thing to do.

Ed Normand.

Originally posted at InjuryBoard by Ed Normand

Under Bad Press Walmart Drops Claim Against Disabled Former Employee

Ed Normand — Fri, 04 Apr 2008 09:55:18 GMT

Debbie Shank was an employee of Wal-Mart who was in a trucking accident and sustained horrific permanent brain injury including most of her ability to even communicate and walk. Her medical bills were paid for by her health insurance with her employer, Wal-Mart. Of course, she worked for the right to have these health benefits. After the accident she and her family sued and recovered around $417,000 (after fees and expenses). The net settlement funds were put into a trust to help pay for her future medical care.

Sadly, after Wal-Mart got wind of the settlement, instead of offering to help more because the net proceeds were far from sufficient to cover her future care needs, Wal-Mart's health benefit plan chose to sue Mrs. Shank to take the settlement proceeds from her. Walmart won the suit because the language in its health benefit plan says that it can take everything from a settlement up to the full amount of the settlement. So it did. The Shank's appealed. They lost. Apparently, Wal-Mart did not care that this family lost everything, even a son who died in the Iraq war, and that Ms. Shank would have nothing to help her in the future.

Then finally the word got out about what Wal-Mart was doing to this family. The story appeared all over the internet, in the mainstream news and elsewhere. Most people were astounded that large companies can take away all of the settlement proceeds from an auto accident or other injury. Most people do not know that these employers can do this even though the employee worked hard to earn the health benefits. It was not welfare.

According to an interview with Jim Shank, after all the bad publicity, Wal-Mart decided to do the right thing. Wal-Mart claims it will not take all the recovery from Ms. Shank and will amend its benefit plan to "allow us more discretion for individual cases". Hopefully Wal-Mart and other will recognize that it is not fair to treat employees this way. After all, the employee worked for the health benefits, it was not given for free. Further the employee is the person hurt, the employee has to hire the lawyer, do all the work to win in court, take all the risk including financial liability if they lose in court, and so it is not fair that the employer can sit back and just take all the money dollar for dollar once the employee wins the case. For years and years the fair way for health insurers to operate and a way that many State Laws require (but not employment health plans which are immune from State law) is that the health insurer can get paid back a fair percentage. By example, if the injury is worth one million dollars but the net recovery is only 10% of that then the health plan should only get paid back 10% of its medical bills. That is more fair and hopefully what Wal-Mart will make as its policy.

Originally posted at InjuryBoard by Ed Normand

Medical Malpractice Reform: The True Numbers?

Ed Normand — Mon, 05 Oct 2009 09:00:00 GMT

A recent article in TIME magazine about malpractice reform, available at: http://www.time.com/time/magazine/article/0,9171,1924501,00.html, caught my eye for several reasons. First, the article compares the varying levels of malpractice insurance costs for doctors throughout the nation. However, the article also contains incorrect facts about awards for noneconomic damages - money awarded for pain and suffering. Of note, the article, a Spotlight into Malpractice Reform, references that an obstetrician in Florida could pay five times as much as a colleague in Texas pays in malpractice insurance premiums. The reason behind this discrepancy? The author of the article blames it on the fact that "awards [for pain and suffering] are unlimited[]" in Florida, unlike Texas, where such damages are capped.

What the author of the article fails to realize is that this is wrong - awards in Florida for pain and suffering are capped. Beginning in 1988, the Florida legislature enacted NICA - the Neurological Injury Compensation Act, which was enacted as a way to compensate children who fit certain criteria. However, what the Act essentially did was limit the amount a child could recover from a doctor for a birth related neurological injury (most Ob/Gyn cases fall into this category), even if the doctor committed medical malpractice in the treatment of the child. Under NICA, a child gets $100,000 for a lifetime of pain and suffering. If the child dies, the death benefit is limited to $10,000, but if there is clear and convincing evidence of bad faith or malicious disregard of human rights, safety, or property, then a parent would not be prevented from suing the doctor. This is an almost impossible standard!

Florida has also placed a cap on medical malpractice awards in general, limiting noneconomic damages such as pain and suffering to $500,000 against medical practitioners such as doctors and nurses. For medical negligence that results in a permanent vegetative state or death, Florida has capped awards at $1,000,000. There are also separate caps related to hospitals and nonpractitioners. With respect to the medical negligence of nonpractitioners, Florida has capped noneconomic damages at $750,000 per patient, and where such negligence results in a permanent vegetative state or death, the maximum is set at $1,500,000. There are also separate caps in place for emergency services and care. For such services, recovery against medical practitioners are capped at $150,000 per patient, up to $300,000 recoverable by all patients from all such practitioners. Awards against nonpractitioner defendants providing emergency services is capped at $750,000 per claimant, up to $1,500,000 recoverable by all patients from all such practitioners. Florida statutes state these figures as the maximum amount a patient can receive, even if there are multiple negligent practitioners or nonpractitioners. For public health care providers, like the local county hospitals, there is also a more restrictive cap of $100,000 for all damages.

What needs to be the focus of health care in the United States is the reduction of costs. Part of the argument for capping malpractice awards has been the reduction of malpractice insurance premiums for doctors. Damages caps have been in place in Florida for quite some time, and malpractice insurance premiums have not been significantly reduced. Perhaps more attention should be focused on what else can be done to reduce costs, as the capping of malpractice awards is still not reducing health care costs in Florida and around the country. The real culprit is that there are bad doctors that commit multiple acts of malpractice but continue to practice. If the Department of Health and the doctors would police their own, rates would go down.

Originally posted at InjuryBoard by Ed Normand

Medical Malpractice and Money

Ed Normand — Wed, 07 Oct 2009 09:00:00 GMT

The public perception that medical malpractice cases regularly result in large awards of money is an unrealistic one. Even if a plaintiff prevails at trial, there is no guarantee that any money will be forthcoming. A study from the Department of Justice, based on data from 43,000 cases, reveals that for seven states between 2000 and 2004 (Florida, Illinois, Maine, Massachusetts, Missouri, Nevada, and Texas), most medical malpractice cases that were decided for the plaintiff ended with no money going to the plaintiff.

For cases in which a plaintiff prevails and is awarded compensation, many states are now capping recovery at a maximum of $250,000. The amount an attorney can recover from that statutory maximum is now also restricted. In Florida, attorneys’ fees in such medical malpractice cases, unless agreed to otherwise, are limited to 30% of the first $250,000 (exclusive of reasonable and customary costs), and 10% of all damages in excess of $250,000 (exclusive of reasonable and customary costs). If an attorney seeks more than the statutory limit for fees, the attorney is regulated by the Rules Regulating the Florida Bar. The rules limit attorneys’ fees to 33 1/3% to 40% for any recovery up to $1 million; 30% for any recovery between $1 million and 2 million; or 20% of any portion of the recovery exceeding $2 million.

Average costs of preparing for a medical malpractice case can now average $50,000 to well over $100,000 and require years to prevail at trial. Plaintiffs are often left permanently disabled as a result of the incompetence or negligence of doctors and/or hospitals, and deserve to be adequately compensated for their suffering. By capping recovery in medical malpractice cases, states are not only affecting the compensation that plaintiffs receive, but also the opportunity for plaintiffs to get their day in court. Because preparation costs for medical malpractice cases are getting so high, bringing a case to trial presents a serious financial risk, as attorneys might not be able to recover their costs even with a monetary judgment. Statutory caps on medical malpractice verdicts for pain and suffering hurt those most deserving - mothers, children, and the elderly. Big wigs still get 100% compensation for the loss of earnings, so the corporate executive hurt by malpractice will still be compensated for all his lost earnings but the child and the mother won’t. Are children less worthy?

Originally posted at InjuryBoard by Ed Normand

Verdict Against Florida Amputee Thrown Out

Sandy Grinnell — Mon, 01 Jun 2009 16:08:47 GMT

A Broward County Circuit Judge has done something extremely rare - he has reversed a jury verdict and ordered a new trial. The victim in this case lost of four of her limbs due to medical negligence. Judge Charles M. Greene tossed a jury's verdict against the victim because it was "contrary to the law and the manifest weight of the evidence."

Judge Greene determined there was an overwhelming amount of evidence against the defendants (significant errors in communication and diagnoses) and therefore a new trial was warranted. The defendants blamed each other and there many, many errors, both of which may have contibuted to the jury not being able to determine who was actually at fault.

The victim had gone to the hospital in extreme pain and told the attending nurse she had a history kidney stones and that it must be a kidney stone. The ER physician and the attending physician pointed fingers at each other - one saying that he was not informed of the patient's dire condition, the other indicating she expected the attending to come in to examine the patient, not just make a decision over the phone.

As a result of the lack of communication and treatment, the victim ended up in septic shock due to an extreme infection that cut off the blood flow to her limbs. Unfortunately, her legs were amputated just below her knees and then a few days later, her arms were removed just below the elbow.

According to the National Center for State Courts, in 2005 judges set aside less than .5 percent of jury verdicts. This victim is one of the very few that will have a second day in court. One can only hope that aother jury will view the evidence the way Judge Greene did and help this amputee get what she is surely due - a fair settlement in the face of all the many errors that resulted in her being a quadruple amputee.

Originally posted at InjuryBoard by Sandy Grinnell

Insurance Institute Recommends Higher Legal Driving Age

Sandy Grinnell — Thu, 11 Sep 2008 10:42:06 GMT

After reviewing years of statistics on traffic-related teen deaths, the Insurance Institute for Highway Safety (IIHS) is recommending that states raise the legal driving age to 17, or even 18. According to the IIHS, car crashes are the number one cause of deaths in teens and they feel increasing the age to 17 or 18 would save lives.

The IIHS report points to statistics from the state of New Jersey where the driving age has been 17 for several years and the rate of 16 and 17 teenage deaths were 18 per 100,000. In neighboring Connecticut, where the minimum driving age is 16, the rate is 26 deaths per 100,000.

"This is a tough sell," says Anne McCartt, Institute senior vice president for research, "but it's an important enough issue to challenge the silence and at least consider changing the age at which we allow teenagers to get their licenses to drive. After all, graduated licensing has been successful ever since states began to adopt these programs more than a decade ago, and raising the licensing age is a logical next step to reduce driving by the riskiest motorists on the road, the youngest ones."

According to the Washington Post:

More than 5,000 U.S. teens die each year in car crashes. The rate of crashes, fatal and nonfatal, per mile driven for 16-year-old drivers is almost 10 times the rate for drivers ages 30 to 59, according to the National Highway Safety Administration. Many industrialized countries in Europe and elsewhere have a driving age of 17 or 18.

Many states have initiated strict graduated driver''s licenses which they believe are saving lives. Getting the state legislatures to increase the age to 17 will be difficult and it will be an uphill battle with most parents and the teenagers. Teenagers want their freedom and a lot of parents look forward to dropping "chauffeur" from their list of parental responsibilities.

Originally posted at InjuryBoard by Sandy Grinnell

MADD Announces Campaign To Eliminate Drunk Driving

Bruce Gibson — Thu, 19 Jul 2007 16:31:14 GMT

MADD (Mothers Against Drunk Driving) recently announced that alcohol-related traffic deaths are at an all time high since 1992 and has called upon Congress to hold immediate hearings to address solutions. According to NHTSA, alcohol-related traffic fatalities exceeded 17,900 for the year 2006, the highest number in 15 years.

We all have known people who have lost a loved one in a car crash caused by a driver who was legally drunk. Our firm has handled hundreds of cases where alcohol was the cause of a motor vehicle crash that resulted in death or serious injury to innocent victims. MADD believes that the reason people continue to drive drunk, despite the devastating effect it has on families, is because they can. There are 1.4 million drunk driving arrests in this country every year and we must make sure these individuals never drive drunk again. Please support MADD in calling upon Congress to developing a plan of action and support its Campaign to Eliminate Drunk Driving. This is chance to get involved and do all we can to stop this senseless tragedy that affects not only the victims who are killed or injured in the auto accident, but also their families and friends.

For more information on this subject matter, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Bruce Gibson

Texting While Driving PSA Getting Lots of Attention

Sandy Grinnell — Tue, 25 Aug 2009 12:27:50 GMT

A British public service announcement is getting a lot of air time these days, and not just on British television but on YouTube. The very graphic PSA depicts a horrific accident that begins with three teenage girls laughing and joking while the driver texts a friend. Of course the result is a head-on collision and several people dying.

The spot is broadcast with the intent of getting teenagers to understand the dangers of texting and driving. However, there has always been debate over whether this type of psa actually changes behavior. I remember years ago in my driver's ed class we were shown accident films. To this day I can see in my mind the photos of a body totally charred from a vehicle fire. Does it change the way I drive? It was along time ago so I'm not sure. But we need to do something to stop the increasing number of people of all ages who are texting while driving. It's frightening!

I would suggest that it be required viewing for all teenagers, many of whom think they have this texting while driving thing down pat. Let them just what can happen...

Originally posted at InjuryBoard by Sandy Grinnell