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Distracted Driving - Pets, Phones and Pretzels

Nigel Whitehead — Mon, 28 Apr 2008 11:49:43 GMT

Driving while "distracted" is a major source of automobile accidents. The National Highway Traffic Administration has released several articles dealing with the effect of driving while distracted. After all the statistics are analyzed, the bottom line is clear - driving while talking on the phone, eating, or petting your pet, is dangerous. One would hope that it wouldn't be necessary to point out that driving with your cat sitting in your lap is dangerous, but, once again, an accident was reportedly caused when a woman drove into a pole after the cat sitting in her lap scratched her while driving. This raises a related question on the wisdom of having a cat at all, but that's another topic! Why you would own a cat in the first place is bewildering. But why you would drive with a cat sitting in your lap is beyond comprehension.

(Skip Morrow, The Art of Humor. The I hate Cats Collection)

In fact, in California, a new law will go into effect as of July 1, 2008 mandating that if you use a phone while driving you must use a hands-free device. Whenever we litigate an automobile accident case we always examine whether or not the other driver was using his or her cell phone at the time of the accident. Simply put, when you are holding a phone to your ear you are driving with one hand. When your attention is even partly devoted to your conversation, you are not paying full attention to the road. We all shake our heads in disbelief when we see a teenager on the phone, or a driver with fluffy the pooch in their lap, but its no laughing matter. People are being seriously hurt, or even killed by inattentive drivers.

Please, don't drive while holding a phone, or even eating. And PLEASE, don't drive with your pet riding in your lap. It's dangerous and it makes you look like one of those too rich to care pretend celebrities who takes their mini-dogs everywhere. And who wants that?

Originally posted at InjuryBoard by Nigel Whitehead

High Death Rate for Young Drivers Who Don't Wear Seatbelts

Susan Devine — Tue, 20 May 2008 15:25:30 GMT

The National Highway Traffic Safety Administration reports that sixty-eight percent of drivers and passengers between the ages of 16 and 20 who were killed in car crashes at night in 2006 were not wearing their seatbelts. The statistics for daytime drivers are not much better: 57 percent of the young motorists who were killed were reported as not wearing seat belts.

Of course, the threat of serious injury or death by not wearing a seatbelt is not limited to teenagers. For adults up through the age of 44, 60 percent of drivers and passengers were reported as not wearing seatbelts, for adults 55-64, that number declines to 52 percent, and adults older than 64 the number declines to 41 percent.

Police agencies around the country have embarked on the popular "click it or ticket" campaign to raise awareness. Anyone caught not wearing a seatbelt will be ticketed and fined.

The news is not all bad, however, as the NHSTA reports that seatbelt use is rising slowly. Nationwide, 82% of drivers and passengers were wearing their seatbelts in 2007 compared with 81% in 2006.

If you are the driver of a car, insist that your passengers wear their seatbelts. If there is a passenger under the age of 16 who is not wearing a seatbelt, the driver can be fined up to $340 for the first offense and $870 for the second offense.

Originally posted at InjuryBoard by Susan Devine

Another Fatal ATV Accident at Oceano Dunes

Nigel Whitehead — Mon, 11 Aug 2008 13:51:20 GMT

On Sunday a 26-year old Santa Maria man was killed in a single ATV accident. Details of the crash are not yet known. The alarming number of fatalities and serious injuries at the Oceano Dunes no doubt arms the anti off-road riding crowd with additional ammunition to close the beach to vehicular traffic. I'm not sure closing the beach will solve the problem. Those who love to ride will simply ride elsewhere if the beach is closed.

This message will not go into the environmental arguments over the off-road riding issues. But, from a safety standpoint, something must be done. Whether it be additional required training, safety equipment or limiting access to some of the more dangerous areas, such as "Competition Hill" where this accident happened, something must be done. Too many children and young adults are being hurt or killed. It is estimated that there are up to 300 serious accident per year at the 1500 acre off road area.

It is too easy to glibly enter this debate from afar. When your family has been personally affected by such an accident the debate takes on a completely different tone. I would love to hear suggestions from those who ride more than I do.

Originally posted at InjuryBoard by Nigel Whitehead

Car Accident on Cuesta Grade

Nigel Whitehead — Thu, 03 Apr 2008 17:47:35 GMT

Another accident was reported this morning on Cuesta Grade. According to the San Luis Obispo Telegram Tribune, a man driving recklessly crashed his car causing traffic delays for south bound traffic.

Cuesta Grade has been the scene of many accidents over the years, including several resulting in fatalities. Often, excessive speed plays a role because of the steep incline over the grade.

Originally posted at InjuryBoard by Nigel Whitehead

Actavis Totowa Recalls Digitek (digoxin) tablets

Susan Devine — Wed, 14 May 2008 18:05:30 GMT

On April 25, 2008 Actavis Totowa LLC, a manufacturer of generic medication, issued a Class I nationwide recall of Digitek, a generic form of digoxin tablets. The company's press release can be found here. The products are distributed by Mylan Pharmaceuticals, Inc. under a "Bertek" label and by UDL Laboratories under a "UDL" label. The FDA is aware of the recall.

Digitek is used to treat heart failure and abnormal heart rhythms and the voluntary recall was issued because at least some of the tablets that were released were oversized and could contain at least twice the level of active ingredients than is appropriate.

It has been reported that some individuals have been seriously injured as a result of taking the wrong sized tablets. Consumer attorneys are working on lawsuits in the hopes that those who have been injured will be compensated and to help ensure these kinds of mistakes do not happen again. If you have been injured as a result of taking this medication, or even if you are not sure, contact your doctor immediately. And if you have questions about your legal rights, contact a local attorney.

Originally posted at InjuryBoard by Susan Devine

Ban on Phthalates Takes Effect in California January 2009

Susan Devine — Wed, 07 May 2008 13:28:08 GMT

Last October 2007, California Assemblywoman Fiona Ma introduced legislation to ban the use of phthalates in California. The law was passed by the California Legislature and will take effect in January 2009. Essentially, the new law prohibits any product made for young children that contains more than one-tenth of one percent of phthalates from being made or sold in California.

So what are phthalates? Phthalates (pronounced "thay-lates")are chemicals that are used in plastics to make them soft. They are found in a wide variety of products including children's toys, shower curtains, dashboards . . . you name it. It is almost impossible to figure out what products contain phthalates however, as most manufactures do not divulge this information. Four types of phthalates are known reproductive toxins.

Various scientists and consumer organizations are opposed to the use of this chemical because they believe it can have serious adverse health effects on humans. The European Union agreed and banned the use of the chemical. Industry representatives disagree and argue the amount in most products is so low that there is no health risk. According to Mark Shapiro, who has written about the issue, the EU is sending its rejected toys to the United States, where they are sold to our children.

An excellent overview of the issue is available by clicking on this link to an interview of Mark Shapiro by Terry Gross. I would urge you to listen to the interview and draw your own conclusions.

Originally posted at InjuryBoard by Susan Devine

California Doctors and Hospitals Join Blue Cross Rescission - Cancellation Class Actions

Ray Mattison — Sat, 03 May 2008 19:31:19 GMT

The 35,000 member California Medical Association and the 450 hospitals of the California Hospital Association have joined the pending consumer class actions against Blue Cross complaining about the rescission (cancellation) of over 6000 customers by Blue Cross of California and it's subsidiary, Blue Cross Life and Health. "We believe that Blue Cross has failed to pay claims worth hundreds of millions of dollars based on its illegal practices," said Daron Tooch, one of the lead attorneys in this case.

Earlier this year Governor Schwarzenegger joined in the criticism of the rescission - cancellation practices of Blue Cross and other Health Plans, the subject of pending class actions in Los Angeles.

Blue Cross and other California health insurers are accused of doing little investigation (known as "underwriting" in insurane parlance) when the consumer applies for health coverage. Because they have a two year period in which they can rescind coverage if there is fraud in the application, the companies are accused of waiting until someone runs up large bills or becomes very ill and then doing an in depth scrutiny of the patient's medical history looking for reasons to deny coverage. According to the Los Angeles Times an investigation by the Department of Managed care found that "Blue Cross of California 'routinely' violated state law when it canceled individual health insurance coverage after policyholders got pregnant or sick, making no attempt to determine whether they did anything to merit such 'harsh' treatment".

A recent legal victory by Raudel and Maria Rodriguez could spell more trouble for Blue Cross. According to their attorney, Robert S. Gianelli of the Los Angeles firm of Gianelli & Morris, Rodriguez and the other victims of Blue Cross' rescission - cancellation will now be able to present their case to a jury rather than being forced to binding arbitration. According to Gianelli and even the pro business Wall Street Journal, binding arbitration is not only shielded from the public eye, but is generally considered to be an expensive yet unfavorable forum for consumers. Along with the CMA's suit, the Rodriguez class action and others against the Blue Cross companies have been joined together in Los Angeles.

In association with San Luis Obispo attorneys Raymond E. Mattison and Don A. Ernst, current President of the Consumer Attorneys of California, Gianelli has brought a similar class action against Blue Cross Life on behalf of a San Luis Obispo County single mother whose health insurance was cancelled leaving her with unpaid medical expenses. A San Luis Obispo Judge recently certified a class action against Blue Shield brought by a young mother whose health coverage was cancelled after her son was born with a heart defect requiring expensive surgery. Blue Shield is also under investigation by the Deparment of Managed Care.

Originally posted at InjuryBoard by Ray Mattison

New California Laws for Drivers - No Smoking

Nigel Whitehead — Thu, 14 Aug 2008 12:49:35 GMT

Every year there are new state laws passed. A few new laws this year affect drivers. I have previously blogged about the new "hands-free" law for use of a cellular phone while driving. But, did you know that it is also now illegal to smoke in your car if you have a minor passenger? As of January 2008 Health & Safety Code Article 2.5 was added to Part 15 of Division 104 of the code making it a citable offense to smoke in your car while you have a passenger under the age of 18. This infraction carries a $100 fine and applies to cigars, cigarettes and pipes.

It appears from the legislative history of the bill that this law was motivated not by driving safety concerns but by second-hand smoke dangers to children. California is the most aggressive state in the county in passing laws restricting smoking.

I was pleased when smoking in most public building was prohibited. I was pleased to see airlines adopt a no smoking policy. I think it a bad idea to smoke at all, and especially around kids. But I must confess I get a little uneasy when the government starts restricting the use of a legal product in a private place. Why not ban smoking around children anywhere? Why not ban smoking all together? As a person with a family recently diagnosed with lung cancer I'm all for it. But as a lawyer I think the government may have stepped a little too far into some people's personal liberties.

Your thoughts?

Originally posted at InjuryBoard by Nigel Whitehead

Sudden Onset Illness Causes Auto Accident

Nigel Whitehead — Tue, 20 May 2008 11:03:35 GMT

What happens when a driver of a car suffers a sudden and unexpected medical condition, such as a heart attack, which causes him to lose control of his car resulting in an accident? In California if the accident was caused by a sudden onset illness which the driver had no reason to suspect he may be able to escape liability when he injures another in the ensuing accident. KSBY is reporting that a driver with very low blood sugar crashed near Highway 1 in Lompoc. The driver apparently tried to slow, but crossed the road into the wrong lane before crashing.

If this accident caused injury to another would the driver be civilly liable? It depends. If the driver had no reason to expect that he could suffer from low blood sugar, then he may very well not have been negligent. However, this driver was reported to be diabetic. If the driver was aware of his medical condition he would have been obligated to take reasonable steps to ensure that he wasn't driving with low blood sugar.

Similarly, if you have a history of seizures, whether or not you should be driving will be a question of fact. It is a more difficult question when a driver suffers a heart attack when driving thus causing an accident. What if the driver knew he had coronary heart disease, high cholesterol, high blood pressure and a family history of cardiac arrests? Should that driver stay off of the road? It will depend on what the medical experts say. If the cardiologist testifies that while the driver was at risk, there was no way to reasonably suspect a heart attack, then the driver may escape liability. On the other hand, if the testimony is that the driver was a "heart attack waiting to happen", then it may very well have been unreasonable for that driver to be behind the wheel of a car.

In these case understanding the medical evidence will be critical in determining civil liability.

Originally posted at InjuryBoard by Nigel Whitehead

Hospital Balance Billing in California

Nigel Whitehead — Thu, 16 Oct 2008 18:14:29 GMT

In California if you end up in the emergency room at least you don't have to worry about the bill since you have health insurance, right? Not so fast. This week a new rule was put in to place prohibiting hospitals from the so called practice of "balance billing". This means that if you end up in the hospital, particularly one outside of your provider network, you could be billed by the hospital for anything your insurance company didn't pay. This could be thousands and thousands of dollars. This week the California Department of Managed Health Care implemented a new rule banning this practice. You can read the Department's press release on this issue here.

But, before you head to the emergecny room without concern for the bill, be aware that a group of doctors and hospitals have filed a lawsuit challenging the new rule. They argue that many times the reimbursment rates from the insurance company is far below the amount needed to make a profit. And, since by law an emergency room is obligated to treat every patient regardless of insurance issues, they will lose billions of dollars.

The DMHC argues that the reimbursement issue will be addressed by regulations desgined to address unfair contracts giant health insurance companies are forcing on local medical providers that provide for very low payment rates for medical services.

As if the issue was not confusing enough, the California Supreme Court is set to hear oral aurguments in another case addressing this very issue - Prospect Medical Group v Northridge Emergency Medical Group -on November 5, 2008. You can see the California Supreme Court calendar here.

In a personal injury case this issue can have a huge impact on the settlemement of a case. If the lawyer can't tell with certainty how much - if anything - the client will owe to the hospital over and above the paid amount, it is impossible to tell the client how much the net settlement will be. This is an area that cries out for judicial and legislative clarity. Hopefully, the result will be fairness to the consumer, and not protection of the profits of giant corporations.

Originally posted at InjuryBoard by Nigel Whitehead