Washington DC Injury Lawyer Blog

Jury Awards $9 Million to Couple in Medical Malpractice Lawsuit

November 17, 2011 | Lebowitz & Mzhen

A jury in a federal lawsuit in Cheyenne, Wyoming has awarded $9 million to Louis and Rebecca Prager. The suit against Campbell County Memorial Hospital in Gillette, Wyoming and Dr. Brian Cullison alleged medical negligence during treatment of Mr. Prager in 2008, leading to permanent disabilities. The award may be the largest medical malpractice verdict in Wyoming history.

Prager, an oil field worker, was involved in a rollover accident on December 9, 2008, when the truck he was driving for his employer went off the road in icy conditions.. An ambulance crew immobilized him on a backboard, placed a neck brace on him, and rushed him to the emergency room at Campbell County Memorial Hospital. According to the lawsuit, despite complaints of neck pain, Cullison released Prager without examining him, taking x-rays of his neck, or providing him with a cervical collar.

Prager, 51 years old at the time, returned to the hospital four days later after losing the use of his left arm and shoulder. The hospital found multiple fractures to his cervical spine and performed emergency neck fusion surgery. The surgery prevented any further injury, but could not repair the nerve damage. He has since had a second neck fusion operation and will probably require more in the future. He has also undergone several procedures aimed at reducing his pain. He has been unable to work since the accident.

Prager’s lawsuit alleged that Cullison’s failure to diagnose his broken neck led to permanent C5 nerve root injuries, and sought to hold the doctor and the hospital liable for his expenses, pain and suffering, and future costs. Defense attorneys argued that Prager’s pain and loss of use of his arm resulted from a progressive shoulder injury, not the failure to diagnose the cervical injury. After a nine-day trial in October 2011, the jury determined that the negligence of the hospital and doctor caused Prager $7 million in damages. They awarded an additional $2 million in damages for loss of consortium to Prager’s wife, Rebecca. “Loss of consortium” damages relate to the loss of companionship and support suffered by the spouse or partner of an injured plaintiff. According to the Casper Star-Tribune, this is the largest medical malpractice award in the state’s history, beating the previous record of $1.5 million by a wide margin.

Family of Shooting Victim Sues Gunman for Wrongful Death

November 11, 2011 | Lebowitz & Mzhen

The parents of Michelle Fournier, a woman killed in a hair salon shooting that left eight people dead and one wounded, have filed a wrongful death lawsuit against the alleged shooter. The alleged gunman, Scott Dekraai, is Fournier’s ex-husband. The lawsuit asks the court to freeze Dekraai’s assets. According to the family’s attorney, their goal is to obtain compensation for Fournier and Dekraai’s eight year-old son, who is left effectively orphaned by the incident.

The family of another woman killed in the salon, Christy Wilson, has also filed a lawsuit for wrongful death against Dekraai. Her husband alleges in the suit that she “lingered for a ‘significant’ period of time before she died,” and seeks compensation for hospital and funeral costs and loss of “love, care, companionship.” The two lawsuits will likely proceed alongside, but independent of, the criminal prosecution.

Dekraai had taken Fournier to court to modify their child custody arrangement, hoping to get more time with their son. A court-appointed psychologist recommended that the court keep the existing custody plan in place. On October 12, 2011, Dekraai allegedly drove to the salon in Seal Beach, California where Fournier worked, armed with three handguns and wearing a bulletproof vest. According to police and Dekraai’s own statements to police, he shot eight people in the salon, killing seven, including Fournier and Wilson. He then shot and killed a man sitting in a car in the parking lot, telling police later that he thought the man might be a police officer reaching for a weapon.

Police arrested Dekraai shortly after he left the salon. He reportedly offered a full confession to investigators, admitting to all of the shootings and offering explanations for his actions. Prosecutors have charged Dekraai with eight counts of murder and one count of attempted murder, one for each shooting victim. They have announced that they will seek the death penalty. His arraignment is scheduled for November 29.

There are several key differences between the criminal and civil ases. The claims brought by the families for Fournier and Wilson seek civil damages for wrongful death. The criminal case, brought by prosecutors who work for the state of California, seek to punish Dekraai in the criminal justice system. The desired outcome of a wrongful death lawsuit is always monetary damages, while a criminal prosecution seeks fines, imprisonment, or sometimes the death penalty.

Players Sue NFL and Helmet Manufacturer over Head Injuries

November 3, 2011 | Lebowitz & Mzhen

Football, as the saying goes, is a contact sport. It may therefore come as a surprise to learn that a number of professional football players have sued the National Football League and helmet manufacturer Riddell over concussions suffered during games. In all, 125 former players have filed suit in at least five separate complaints, alleging that the NFL failed to properly warn players of the risks of head injuries and to provide support for retired players. Concussions in sports, particularly professional football, have received heightened scrutiny recently in both the media and in Congress, with many statistics suggesting that the number of concussions has increased significantly.

A concussion is a common type of brain injury caused by an impact with the head making the brain collide with the inside of the skull. This can lead to both physical and cognitive symptoms, ranging from headache and dizziness to disorientation and attention deficits. A person who suffers from a concussion may not lose consciousness, and many concussions go undiagnosed because the injured person does not realize the injury’s severity. Multiple concussions over time can cause significant brain damage, including memory loss and dementia. The NFL began to pay serious attention to concussions in 2009, and in February 2011 it announced new guidelines to gauge whether an injured player should continue to play.

The lawsuits consist of a class action suit and three personal injury suits in California state court and a case in a federal court in Pennsylvania. The suits essentially allege that the NFL has a duty to inform players of all risks reasonably associated with their job duties and to support players injured in the course of their job duties. In this situation, the players’ “job duties” involve practicing for and playing football. Lawyers for the players say that they hope to use the lawsuits to improve safety standards for all players, to prevent future injuries, and to get compensation for the players’ injuries.

To prevail on their claim, the players would have to prove that the NFL had knowledge of risks inherent in the game not available to an ordinary prudent person, and that the players did not assume the risk of injury by agreeing to play the game. An argument in the players’ favor, perhaps, is that they did not have the ability to refuse to perform certain job functions, since these would occur in the middle of games and players are contractually obligated to play.

Fight Over a Parking Space Allegedly Leads to a Fractured Spine

October 26, 2011 | Lebowitz & Mzhen

A Colorado man faces assault charges after a fight over a parking space outside a bagel shop on the morning of Saturday, October 1. According to an arrest warrant issued October 4, the victim suffered a fractured spine, head injuries, and multiple abrasions and contusions. The victim presented in court that day with a U-shaped wound on his forehead. The incident made news in part because the alleged assailant had returned from Pakistan a few months earlier, where he had worked as a contractor for the CIA and was involved in a shooting incident.

Police originally arrested the man on charges of third-degree assault. When it became clear that the victim suffered a broken vertebra, authorities raised the charge to second-degree assault. As of October 5, no charges were pending against the victim for any actions in the fight. The alleged assailant admitted to hitting the victim first, but claims that the victim also hit him five times. Colorado law defines third-degree assault in part as “with criminal negligence…caus[ing] bodily injury to another person by means of a deadly weapon” and classifies it as a class 1 misdemeanor. Second-degree assault is defined in part as “[w]ith intent to cause bodily injury to another person…caus[ing] such injury to any person by means of a deadly weapon” and classified as a class 4 felony. Reports on the incident do not indicate if police allege use of a weapon by the alleged assailant. The key difference between the two criminal charges is the required mental state of the accused, although the distinction for authorities appeared to be the extent of the victim’s injuries.

Spinal cord injuries, defined as any injury resulting from trauma, can have serious consequences for the victim. Effects range from incontinence or impaired mobility to full paralysis. Treatments for spinal cord injuries generally involved extensive rehabilitative therapy, as well as surgeries and pharmaceutical and psychological treatment. Obviously a long course of treatment becomes exceedingly expensive for the victim. While the diagnosis and treatment of spinal cord injuries has advanced over the years, severe injuries still carry little hope for full recovery. In addition to treatment and rehabilitation, victims must make substantial adjustments in their lifestyle and occupation.

Returning Veterans are at High Risk for Auto Accidents

October 19, 2011 | Lebowitz & Mzhen

Automobile crashes are the leading cause of death for veterans returning from deployment during their first year back home, according to the Department of Veterans’ Affairs (VA). Veterans returning from Iraq and Afghanistan face a 75% greater probability of a fatal car accident than the general population. This continues a historical trend, but at a greater rate than prior to the deployments of the past decade. The VA’s investigation suggests that military training, psychological effects of deployment, and possible injuries all play a role in unsafe driving among veterans.

Studies by the VA and the National Highway Transportation Safety Administration have shown that risky behavior accounts for many of the deaths. This includes not using seat belts or helmets, speeding, and driving under the influence of alcohol. Training in “aggressive driving” is one possible cause. People on deployment receive training for driving in combat situations, and must constantly contend with the possibility of ambush or improvised explosive devices. VA officials have described a sense of “invincibility” among many returning veterans, having survived combat, which can unwittingly lead to dangerous driving.

Psychological factors also play a significant role because of the highly stressful situations in deployment, particularly to Iraq and Afghanistan. Post-traumatic stress disorder, an all-too-common condition of returning veterans, can lead to dangerous driving back home. An Army study revealed that 50% of returning soldiers reported feeling anxiety on the road when other vehicles quickly approached them, and 20% reported feeling general anxiety whenever driving. The VA has further noted that auto accidents can lead to further PTSD, particularly in individuals already affected by PTSD or other mental health issues, which can create an ongoing problem for veterans involved in accidents.

Traumatic brain injuries can affect driving, causing a person to think they are driving normally and not noticing mistakes. Such injuries may go undetected in returning veterans, leading to unforeseen driving problems. Individuals suffering from brain injuries may not be able to recognize changes in their driving patterns, making safe driving difficult.

Food and Drug Administration to Take Action on Food Safety in Restaurants and Stores

October 13, 2011 | Lebowitz & Mzhen

The U.S. Food and Drug Administration (FDA) announced a series of initiatives in late September that it hopes will further ensure the safety of the food supply. The proposed measures, known as the Retail Food Safety Action Plan, would apply to food service establishments such as stores, restaurants, and schools. The Plan will focus on food safety rules at the state and local levels. It establishes a set of “model rules” to help managers in food service establishments handle food safety procedures, and standards for training personnel on food safety issues. The Plan follows a series of recent stories in the news about food contamination such as the recent cantaloupe recall.

The FDA is cooperating with the National Association of County and City Health Officials (NACCHO) to promote best safety practices at the local level. It hopes to get local governments to implement its Voluntary National Retail Food Regulatory Program, a series of standards developed by the FDA to encourage uniform food safety protocols nationwide.

The Plan also includes amendments to the 2009 Food Code, the most recent set of standards put out by the FDA. The Food Code is typically revised every few years. The proposed amendments include:
– Food establishments should have a plan for responding and cleaning up if an employee is phyiscally ill near where food is served, prepared, or stored.
– Food establishments should have clear standards about bare-handed contact with prepared food by employees.

– They should have consistent standards for how to display meat and poultry.

The FDA is an agency of the U.S. Department of Health and Human Services. It is responsible for promoting public health by supervising and regulating food products, pharmaceuticals, medical devices, cosmetics, and other products commonly used by the public. It also enforces various laws related to public health. It regulates safety for most food products, although many meat products fall under the Department of Agriculture’s jurisdiction. FDA review and approval is a critical step towards getting a product to market in the pharmaceutical and food industries.

Food safety and quality control are vital tasks in promoting public health and preventing certain diseases. Food-borne illnesses such as salmonella and E. coli can result from poor food quality or lack of standards. Injuries can be severe, ranging from sickness and lost time at work to serious hospitalization or death.

Children’s Jewelry Manufacturers Agree to Limit Cadmium Levels

October 7, 2011 | Lebowitz & Mzhen

The Consumer Product Safety Commission has approved new voluntary limits on cadmium levels in children’s jewelry. A move to regulate cadmium began in 2010 after a recall of bracelets and pendants at Wal-Mart stores. The new standards represent a national consensus among manufacturers and importers of children’s jewelry as to the need to address the toxic metal. A series of mandatory limits has already developed through state regulation and litigation, but this new standard represents the first national standard.

Cadmium is a metal element that occurs as a byproduct of various industrial processes. For years cadmium was used in steel and plastic production and as a pigment, but use has declined considerably. It is still used in some batteries and solar panels. Cadmium exposure has been linked to a number of health problems, including flu-like symptoms, acute kidney problems, pulmonary emphysema, bone disease, and possibly cancer. Dangerous exposure can occur even with trace amounts of cadmium.

Wal-Mart stores recalled children’s bracelets and pendants from their stores in January 2010 due to concerns that they might contain cadmium. Children could receive dangerous doses of cadmium if the jewelry were placed in a child’s mouth, even without actually swallowing the product. Some Chinese companies use cadmium in jewelry production because of prohibitions on using lead. An American company, Tween Brands, reached a settlement in California in March 2011 in which it has agreed to eliminate cadmium from all of its products by January 2012. The settlement agreement only applies to the state of California. Different standards among U.S. states may have led to repeated and inconsistent testing of products, which has led to the current push for national standards.

Possible New FMCSA Hours-of-Service Regulations on Commercial Truck Drivers Create Controversy

September 29, 2011 | Lebowitz & Mzhen

The Federal Motor Carrier Safety Administration has spent two years considering modifications to hours-of-service regulations for commercial truck drivers, but any proposed increase in regulation could inspire opposition in Congress. The agency has delayed the release of new rules until October, requesting further comment during the summer of 2011. While the agency cites its own research to argue that revisions to the existing regulations are needed to improve safety, members of Congress have vowed to fight any changes.

Four Republican Representatives led by House Transportation and Infrastructure Committee Chairman John Mica (R-Fla.) wrote to President Obama regarding the proposed changes, stating that “we are very concerned the proposed changes will result in additional trucks and drivers on the road to deliver the same amount of freight, adding to the final product costs and increasing congestion on our already overburdened roads.” Industry groups have expressed similar concerns about new regulations. Since the FMCSA has not released new rules, the situation is still simmering. It pits concerns over driver safety against concerns over the impact of new rules on the trucking industry.

Under current rules, commercial truck drivers who do not carry passengers can drive for a maximum of 11 consecutive hours after at least 10 consecutive hours off duty, and they can be on duty for a maximum of 14 consecutive hours. Drivers are also limited to 60 to 70 hours total driving in a 7- to 8-day time period. Proposed new regulations would limit the total number of 14-hour shifts to two per week, with driving time limited to 10 or 11 hours. The FMCSA issued the current rules in 2003, in the first major revision of hours-of-service rules since 1939.

As an agency of the United States Department of Transportation, the Federal Motor Carrier Safety Administration regulates the U.S. trucking industry, enacting and enforcing safety regulations covering commercial motor vehicles and drivers. It is tasked with monitoring highway safety data, researching existing safety concerns, promulgating rules and regulations enforcing safety policies, and developing technological solutions supporting safety. The agency was established January 1, 2000.

The FMCSA issued a report in May 2011 analyzing driving performance of commercial truck drivers and considering all activities expected of drivers in addition to driving. Aside from driving, drivers may spend time during shifts performing “heavy work” like loading and unloading their trailers and “light work” like paperwork and other administrative tasks. Drivers also take breaks during shifts to eat, sleep, and relax. The report identified driver drowsiness as a major concern, but also the variety and range of tasks performed by drivers during a shift. All of these factors can negatively affect driver safety.

NTSB Urges Ban on Cell Phones for Truck Drivers

September 23, 2011 | Lebowitz & Mzhen

The National Transportation Safety Board has formally recommended a ban on the use of cell phones and other mobile electronic devices by commercial truck drivers while driving. While this does not have the force of law, the recommendation follows on a prior recommendation to ban text messaging by truck drivers. The Washington DC Injury Lawyer Blog previously reported on how this led to a formal ban by the federal government on texting by commercial truckers. Nineteen U.S. states and the District of Columbia already ban all drivers from texting while driving. The federal texting rule for truckers, set by the Federal Motor Carrier Safety Administration, carries fines of up to $2,750 per incident. The NTSB recommendation on cell phone use is likely to lead to similar rules regarding cell phone use.

The NTSB recommendation resulted from its investigation into a tragic crash on Interstate 65 in Kentucky last year in which a commercial truck driver veered across the median of the highway into oncoming traffic and struck a van carrying a total of 12 people. The crash killed the truck driver, the van driver, and nine of the van’s occupants. Two children in the van were reported to have been saved by their child-restraint systems. The investigation concluded that the truck driver’s distraction from use of a cell phone, combined with fatigue, caused the crash. Investigators found that the truck driver had used his phone for calls and text messages while driving 69 times during the previous 24-hour period. Road conditions, weather, and driver health issues did not play any role in the accident, according to investigators.

The National Transportation Safety Board is an independent agency of the United States government, formed in 1967 and tasked with investigating accidents in the civil transportation system. It investigates certain types of car and truck accidents. Since the accident in Kentucky occurred on an interstate highway, which is partly administered by the federal government, it came under the NTSB’s jurisdiction. The NTSB also investigates aviation, marine, shipping, pipeline, and railroad accidents. The agency lacks the legal authority by itself to create laws or rules, but its system of recommendations frequently leads to the adoption of new safety regulations. In it 44-year history, it has issued over 13,000 recommendations.

Social Media Technology Can Help Establish Liability in Accident Cases

September 15, 2011 | Lebowitz & Mzhen

A bike ride on the San Francisco peninsula during the 4th of July weekend turned disastrous for New York Times writer John Markoff when he crashed on a downhill at over 30 miles per hour. Paramedics took him to the hospital, where he found that he had a 20-minute gap in his memory surrounding the crash. He could not remember the circumstances of the crash at all, despite physical evidence such as road rash on his hands and a deep skid mark on his helmet.

Markoff relates the story of Ryan Sabga, a bike racer, who was hit by a car in Denver in 2010. The driver of the car claimed she did not think she had hit him, and police concluded that there was not enough evidence to issue a citation to the driver. Sabga was able to use data from the GPS device to establish where he was at the time of the accident, and to demonstrate exactly how the car hit him (including a spike in his heart rate at the moment of impact). Although police still did not want to pursue the case, this evidence was enough to get the driver’s insurance company to accept responsibility.

Markoff similarly used his GPS device to reconstruct his bike ride and figure out what had happened to him. Both Sabga and Markoff used a Garmin GPS device that recorded location, speed, and other information, and allowed the option of uploading data to a web service where it could be shared with other users.

Forbes columnist Kashmir Hill notes that an increasing number of people use devices like a Garmin GPS to record data about their daily lives and often share that information through social media. Widespread use of such technology is often known as “the Quantified Self” or “self-tracking.” While such recording and sharing can serve any number of useful purposes such as allowing support for fitness plans or tracking health conditions, it can also be useful for accident victims. This applies to accident victims who may use their own data, much like Markoff and Sabga, to determine what happened, or to those who may obtain data from another party to establish liability or challenge a conflicting description of an accident.

Social media information is the subject of a growing number of discovery requests in litigation. Courts, while often slow to adapt to new and quickly-changing technologies, are beginning to understand the importance and ubiquity of social media, and are allowing discovery of personal social media information that is relevant to the case at hand. Data collected by “self-tracking” technologies, particularly those shared on popular social media sites like Facebook and Twitter, are undoubtedly relevant in establishing the circumstances of an accident. This information can cut both ways. Information that could prove liability in a personal injury matter could also disprove a claimant’s account and clear a defendant of liability. Either way, this segment of social media technology, when used by people involved in accidents, is an invaluable fact-finding tool.