One possible explanation for the failures: the manufacturers are only required to test infant seats in head-on collisions, despite that about 30 infants in the United States die each year in broadside collisions.
Parents are cautioned, however, that holding an infant in your arms during car travel is not a safe alternative.
While it appears that some work is being done to improve these infant seats, we need quick action -- including legislation or regulation requiring that these infant seats withstand side-impact collisions -- if we want to save our precious children from death, brain injury and other unspeakable tragedies .
]]>On January 2, 2007, the Washington Post reported that the FDA has proposed stronger warning labels on over-the-counter "painkiller" medications, especially because of the risk of liver and stomach damage. These warnings would apply to all OTC medicines containing acetaminophen and nonsteroidal anti-inflammatory drugs (NSAIDs), including aspirin, naproxen and ibuprofen (in popular products such as Tylenol, Aleve, Motrin, Advil and Tylenol Arthritis Pain).
These medications -- often used to treat headaches and muscle pain/discomfort -- should be taken at the lowest dose possible for the shortest time possible, especially if one is taking any other medicine(s). There are additional known hazards when mixing alcohol with any of these medicines.
One "take-away" from these proposed warnings, then, is to rid yourself of the common misconception that "over-the-counter" medications are "harmless" and without risk.
Virginia's not being on this list of "judicial hellholes" is no surprise to Virginia judges or the trial lawyers for the plaintiff and defense. Each of them knows that an injured plaintiff in Virginia has one hand tied behind his back and two strikes against him when he first comes to bat in court. Candidly, this does not apply to victims of medical malpractice in Virginia, who have two hands and two feet tied-up, and who can be seen limping-up to the plate and then simply heading back to the dugout without taking a swing.
In the January 2, 2007 issue of The New York Times , Jane Brody recounts the extent of the problem of medication errors in America:
Medication errors are among the most common medical mistakes, injuring or killing at least 1.5 million people a year and incurring at least $3.5 billion a year in extra hospital costs alone, according to a report issued in July by the Institute of Medicine of the National Academy of Sciences. This was the institute’s second report on the subject, and the committee that compiled it stated that insufficient progress had been made since its first report, “To Err Is Human,” was issued in 1999.
If there are 1.5 million Americans every year being injured or killed by medication errors, logic tells us that this fate befalls many thousands of Virginians every year. Despite the plaintive cries of the insurers of doctors and hospitals that medical-malpractice verdicts are won and "won big" too often by injured plaintiffs, there are few medical-malpractice verdicts for patients in Virginia, and fewer still based upon medication errors.
This begs the facetious question in the title above, "Why are there no medication errors in Virginia?" The answer lies in the simple but stark difference between the frequent reality of medication errors and the infrequent reality of a jury's holding a medical professional accountable.
The author of this New York Times article cited her own personal experience:
A similar error befell my father at a leading New York hospital. After weeks of intensive care following a massive heart attack, he was sent home with medication from the hospital pharmacy to prevent his body from rejecting his damaged heart. He was about to take the first pill when my mother noticed that the name on the vial was Mrs. Rosenberg, not Sidney Brody, and that it contained estrogen, not the prednisone my father needed.
If we want to make headway in making careless medication errors like this unacceptable, our jurors must be prepared to let go of the iconic worship of those who save us or make us feel better. Our jurors must simply be willing to hold these doctors and hospitals, like everyone else, to a standard of reasonable care. We expect our doctors and hospitals to treat us and our loved ones with reasonable care, and to be accountable for doing so. Should we accept anything less for our "brothers and sisters" in the community?
This increase was attributed in part to increased deaths from motorcycle and pedestrian accidents. One possible explanation for the spike in this particular segment of the population is that -- as our urban/suburban populations rise, and our roads and highways become more crowded -- we as drivers focus most on what endangers us -- the bigger, looming objects on the roads like trucks and SUV's -- and we don't look for or just don't see the smaller figures on the roads like motorcyclists and pedestrians.
The lessons to all of us? Driving is not just about protecting ourselves; it's also about looking for and protecting others, especially those who most need our protection -- like the elderly pedestrian who is not alert or the child running mindlessly across a neighborhood street.
]]>The Bush administration recently has added to its growing stockpile another claim based on false data. Treasury Secretary Henry M. Paulsen Jr. stated that "the broken tort system is an Achilles heel for our economy." Paulsen based his opinion on a "study" by an insurance industry consulting firm.
It seems that the study includes the cost of the insurance industry itself - multimillion dollar salaries for insurance CEOs, rent on office buildings, and administration overhead - in the "cost" of the legal system. Business Week called the study "a wild exaggeration," and The Wall Street Journal stated that the study "includes payments that don't involve the legal system at all." The Journal concluded that payments from a careless driver to somebody who has been legitimately wronged is not evidence of a "system run amok,"
Even the organization conducting the study admitted that "the costs tabulated in this study are not a reflection of litigated claims or of the legal system," and the primary author of the study has said that tort-reform advocates' use of the data has been "misleading."
In May of 2005 the Economic Policy Institute (EPI), a nonprofit, nonpartisan think tank in Washington D.C. found that this report:
was one-sided, exaggerating the impact of the tort system and ignoring its benefits, and that evidence supporting them is shaky or nonexistent. Claims that the tort system harms the U.S. economy do not square with the data. In fact, there is a good deal of evidence to the contrary.
To be sure, there are frivolous claims, and frivolous defenses, in lawsuits of all varieties. But the Bush Administration has suggested that our tort system is fraught with frivolous claims. Perhaps the Administration should hold-up a mirror before accusing others of making repeated claims based upon false information.
The American Tort Reform Association -- "ATRA" -- has published its list of "Judicial Hellholes" of 2006 ... and, Virginia, you are not on its list. You are not even an "Honorable Mention," and you are not even on the "Watch List." One sure way to get on the list? Allow runaway jury verdicts.
No doubt Virginia's absence from this list will come as a great surprise to Virginia jurors who long have been besieged with the cries of ATRA and the insurance companies and corporations to the effect that jury awards for the injured are "everywhere" out-of-control.
The insurance companies have dropped tons of propaganda over the landscape of America: propaganda that tells prospective jurors that every plaintiff is a malingering fraud and that every plaintiff's lawyer is an "ambulance-chaser" ... propaganda that does not tell prospective jurors that the insurance companies' media blitz over the past twenty (20) or so years has saved them untold millions of dollars that under the law should have gone to compensate millions of victims of serious injury and wrongful death.
Virginia jurors still believe -- against all the evidence -- that runaway verdicts for the injured are rampant in Virginia and that they must take corrective action to even the scales of justice. Yet jurors understandably have no knowledge of actual jury verdicts in Virginia because the insurance companies that tell them of the horror stories of isolated runaway verdicts do not tell them the rest of the truth -- of the flood of inadequate verdicts.
How do we know that jurors still believe that runaway verdicts are rampant? First, jurors tell us so after their verdicts. Second, ask a juror how many times he has heard of an inadequate verdict. His response: "never."
Virginia jurors still believe that plaintiff's lawyers are the promulgators of all of the lawsuit abuse. Yet Virginia judges and trial lawyers know that frivolous defenses in Virginia are at least as common as frivolous lawsuits. Ask a juror how many times he has heard of a frivolous defense. His response: "never."
Virginia's not being on this list of "judicial hellholes" is no surprise to Virginia judges or the trial lawyers for the plaintiff and defense. Each of them knows that an injured plaintiff in Virginia has one hand tied behind his back and two strikes against him when he first comes to bat in court. Candidly, this does not apply to victims of medical malpractice in Virginia, who have two hands and two feet tied-up, and who can be seen limping-up to the plate and then simply heading back to the dugout without taking a swing.
What can the Virginia juror do about this? Simple: rid yourself -- honestly rid yourself -- of the insurance companies' propaganda ... and simply listen to the facts of each case and follow the law in that case. This guarantees favor to no one ... except "Lady Justice." The law does not provide for your allegiance to the insurance companies' self-interested propaganda. The law provides -- no, demands -- your allegiance to Lady Justice.
]]>On September 15, 2006, the Supreme Court of Virginia announced its decision in Herr v. Wheeler , 272 Va. 310, 634 S.E.2d 317. In that case Wheeler loses control of her vehicle in heavy rain when it hydroplanes on the wet roadway and suddenly crosses into Herr's lane of travel. Wheeler had known of the slipperiness of the roadway, and was being "cautious." The Herr Court (at 288) found that the trial court erred in granting Wheeler's request for a "sudden emergency" instruction, holding that:
[W]hen abnormal conditions are known and the heightened hazards they create are reasonably foreseeable, the standard of ordinary care the law imposes is higher. Where nature has created hazardous conditions on a highway, and such hazardous conditions are open and obvious, the operator of a motor vehicle is required to take care in the operation of his vehicle proportionate to the known dangerous condition of the highway.
Wheeler had admitted knowing the general dangerous conditions and argued that the sudden emergency was not the known generally dangerous conditions but instead was "one isolated spot" of standing water that she had not known about. The Supreme Court rejected Wheeler's argument:
The occurrence of standing water on a roadway during a heavy rainstorm is simply another matter of common experience. The hazard this occurrence presents, including the possibility of hydroplaning, is one the driver of a vehicle along the roadway must anticipate and exercise reasonable care to avoid. Although Wheeler had not encountered standing water on the roadway as she traveled along Route 250 and may not have seen the accumulation of water at the point on the roadway her vehicle began to hydroplane, just as in Harrah, such an occurrence was not an "unexpected happening."
So, is sudden emergency dead in Virginia? The answer is no. But in the many cases in which a defendant claims that weather conditions created a sudden emergency, that defendant better be able to say that "my day was sunny and bright when the sky suddenly opened-up right before my eyes and my car took on a life of its own." If that defendant knew of the dangerous conditions generally and was merely suprised by an isolated spot of the same condition, he has a sudden emergency not of God's making but of his own making. The Supreme Court did not drop the guillotine on the doctrine of sudden emergency, but the Court did drop the guillotine on any driver who knew of the dangerous conditions and comes to court claiming a "sudden" emergency.
Virginia defendants, take it from Virginia plaintiffs -- don't make excuses and don't make frivolous claims.
1. Don't just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling.
2. Study and read about how to be a better trial lawyer. If you don't enjoy much of what you are reading, try something else (not just another book; try another line of work).
3. Select good cases -- this does not mean: select only those cases that are "sure winners;" he who does not take risk is not a real trial lawyer.
4. Investigate the facts, and keep investigating: a) it's fun; b) the insurance companies are great at doing a lousy job at this; c) facts (if wound into a good story) win cases.
5. File suit in every case (with extremely rare exceptions; I told you this would be provocative). You have little leverage over insurance companies without litigation. They don't really ever pay you "voluntarily." They only pay justly you when trial is closing in on them and you are an imminent threat to their money. When they pay you "voluntarily," you have been had.
6. Cerebrate about your case and your client. In the beginning. In the middle. In the end. About the good believeable facts, and the bad. If you don't cerebrate about your case, one among many serious casualties will be your ability to sincerely, powerfully and spontaneously talk with the jury in closing argument. Juries know when you have not lived the case, and when you don't know your client and what her injuries mean to her and her life.
7. Don't attempt settlement until the insurance company smells trial in the next room, in its back pocket, at its bottom-line.
8. Give the insurance company a firm deadline for settlement, and stick to it (unless the client changes his mind). Pre-trial settlement deadlines -- if enforced by your firm over much time and many cases -- pressure all sides to hear an early version of "the-jury's-knocking-on-the-door," and thus pressure the parties into staring headlong into the possibility of a much worse result at trial.
9. Never, ever "beg," "keep after"or try to cajole an insurance company to settle. The appearance of weakness is weakness. Relax. It's their money they're about to lose.
10. Try cases to verdict and get good results -- insurance companies do not respect an attorney with a track record of not going to verdict.
11. Try cases to verdict and get good results -- your track record precedes you, and each good "We the jury find our verdict in favor of plaintiff and award damages in the amount of ..." is wind at your back in your next effort to settle.
12. Try cases to verdict and get good results -- the insurance companies' reasonable fear of a "runaway" verdict or a too-sympathetic jury is a very, very good friend of yours.
13. You cannot worry -- at all -- about your own financial state or about turning down substantial sums of money. You and your client never had it to lose. It's not your money. Money-hungry lawyers are scared lawyers, not great trial lawyers willing to risk.
14. Be honest with your client, not proud or self-indulgent. Your client needs to know your unvarnished professional opinion on settlement and the chances of reasonable-high and reasonable-low verdicts at trial, not your self-indulgent invective about how unfair are the insurance company, insurance defense counsel and Virginia juries.
15. Be completely ready for trial. Completely ready. And ready early. Many a bad verdict results from the assumption of settlement; many a bad settlement results from not being ready to try your case.
16. If the case does not settle within your deadline, try the case, and try it with focus and determination until you hear the knock on the door and the foreman speaking. Then put your arm around your client and feel good about what you have done.
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