Redding Personal Injury Lawyer

Medi-Vac Helicopter Crashes in Northern California Killing Three

Todd Slaughter — Mon, 16 Nov 2009 13:05:33 GMT

LASSEN COUNTY, Calif. - A medical helicopter stationed in Susanville crashed 15 miles north of Reno at approximately 2:01 am Saturday morning. A "mayday" report was heard just prior to loss of contact. A witness purportedily saw the copter go into a sudden decline. The medi-vac team had just dropped off a patient at Renown Hospital in Reno. All three members of the medical crew were killed. They were the pilot from Hawaii, and the flight nurse and paramedic, both from Susanville.

According to the Lassen County Times, the crash involved an Aerospatiale AS350 that was completely destroyed by the crash and fire that followed. The helicopter was apparently built in 1982. The helicopter was operated by Mountain LifeFlight. The National Transportation Safety Board is on-site investigating the incident.

The Redding Record Searchlight reports that Mountain Lifeflight had another helicopter crash in March of 2002. At that time a Eurocopter As-350B crashed into Honey Lake about 11 miles south of Susanville. The pilot was killed but two medical personnel survived. The NTSB determined that the crash was caused by pilot error. The pilot purportedily became disoriented by the placid sheen off Honey Lake as they flew over it.

Because of the vast distance between populated areas, and the mountaineous terrain of Northern California, medical helicopters play a vital role in the delivery of emergency medical care in our region. When medical responders are tragically killed in the line of duty delivering these services to our citizens, we must each take pause and thank them for the dedicated service they perform everyday, usually without thanks. Our sincerest condolences go to the families, friends and co-workers of these dedicated and heroic medical responders.

Originally posted at InjuryBoard by Todd Slaughter

New Law Protects California Good Samaritans

Todd Slaughter — Fri, 07 Aug 2009 13:26:10 GMT

In December 2008, the California Supreme Court, in a 4-3 decision, narrowly interpreted existing statutory protections for Good Samaritans coming to the aid of accident victims, limiting the application of the statute to those rendering "medical assistance." In the case of Van Horn v. Watson (2008) 45 Cal.4th 322, the California Supreme Court refused to extend the Good Samaritan immunity to a crash victim's friend and co-worker who pulled the victim from a wrecked vehicle in fear of fire or explosion. The new law, Senate Bill 39 and Assembly Bill 83, signed into law by Governor Schwartznegger, immediately provides a qualified immunity to the rescuers, so long as they do not act in a reckless or grossly negligent manner.

The AB 83 was authored by Assemblyman Mike Feuer who offered these supporting comments:

Although the Supreme Court's recent Good Samaritan
ruling may be accurate regarding the Court's narrow
reading of 1980s legislative intent, it is also an
important invitation to the Legislature to quickly
clarify the Legislature's goal of encouraging Good
Samaritan acts -- whether of a medical or non-medical
nature - so long as such acts are done in good faith
and responsibly. My bill responds directly to the
Supreme Court's invitation for legislative
clarification in a measured manner that encourages
Good Samaritan acts that can save lives.

A similar bill, SB 39, authored by Senator John Benoit, extended immunity to disaster relief volunteers and workers. Both bills were supported by the Consumer Attorneys of California which noted that "society should encourage citizens to voluntarily aid others at the scene of an emergency."

Under common law principles, no citizen is required to render assistance to another in need of emergency service at an accident scene. When a citizen stepped forward and did so, however, even if it involved their own personal peril, the law was murky as to whether or not they could be legally liable if they did not perform the rescue carefully. The new law clarifies that such rescuers will not be liable unless they act in a grossly negligent or reckless manner. "Gross negligence" has been defined as conduct that involves "so slight a degree of care as to justify the belief there was indifference to the interest and welfare of others." (46 Cal.Jur.3d, Negligence 100). "Reckless misconduct" is conduct that is "so unreasonable and dangerous that [the person knows] it is highly probable that harm will result." (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747).

We wholeheartedly agree with adoption of this new law. We should never discourage our fellow citizens from stepping up and helping those in need of emergency attention and help. That is what the old law did.

Originally posted at InjuryBoard by Todd Slaughter

Manufacturer Responsibility for Defective Medical Devices is Getting Closer

Todd Slaughter — Wed, 05 Aug 2009 12:21:21 GMT

Tuesday, 8/4/09, patients and doctors testified before the Senate Health, Education, Labor and Pensions Committee in support of the Medical Device Safety Act of 2009 which will restore manufacturer responsibility for defective medical devices. This law will overturn the holding in the U.S. Supreme Court case of Reigel v. Medtronic decided two years ago. Background on that case can be found at the author's website.

Though the opposition claims that this law will give unsophisticated juries more authority than the FDA experts, the FDA has conceded for years that it does not have the wherewithall to monitor and control the medical product performances in the field. The FDA has relied on state court actions brought by injured consumers as a "complimentary review" of the medical devices it authorizes into the marketplace.

Following the Reigel decision, the FDA has had to rely on manufacturers to correct defects in their products, something that manufacturers are naturally reluctant to do. Contrary to the opposition's view, profit most often motivates the actions of the manufacturers. The "initiative" and "inventiveness" that the opposition claims will be stifled by the law seldom overrules the profit motive in favor of safety innovations. This is particularly true when the manufacturer is made completely immune from responsibility to those hurt by its defective products.

We commend Congress for its work to correct the "black hole" that the Supreme Court created, and to return responsibility to those that place defective medical products into the medical marketplace and our bodies.

Originally posted at InjuryBoard by Todd Slaughter

Mt. Lassen Park Officials Warned of Trail Dangers - Rock Slide Kills 9-year-old

Todd Slaughter — Mon, 03 Aug 2009 15:22:49 GMT

LASSEN VOLCANIC NATIONAL PARK - Calif. As reported by the Red Bluff Daily News, last week a 9-year-old boy was killed and his 13-year-old sister was seriously injured when rocks began falling upon them while they hiked with their family up the Lassen Peak Trail. This is an easy to moderate 2.5 mile foot trail which switchbacks up to the peak of Mt. Lassen. It is utilized by as many as 25,000 to 30,000 visitors a year. The trail has been closed following this tragic incident.

This weekend, in a letter to the Editor of the Redding Record Searchlight, Karen Couwenhoven of Antelope, California, wrote that she had hiked the peak trail on July 23, 2009 and found that it to be "in the worst shape [she had] ever seen it in and was extremely dangerous." After her descent from the top with her 5-year-old daughter, she made a specific effort to contact the rangers at the national park and advise them that people had been cutting the switchbacks creating "a lot of very unsteady rocks." She was advised by the officials that they would look into it, but questioned if they ever did. He words were a harbinger of the disaster to come.

This author is a long time hiker in the mountains of northern and central California. I have always had a great deal of respect for the rangers and forest service personnel that work in the national parks as they consistently have impressed me as persons who genuinely care about the dangers of the wilderness, and are conscientious about safety. If Ms. Couwenhoven's warnings were not heeded or investigated, this would be out of step with the agency's usual approach. For the sake of the safety of future visitors, I am hopeful that the agency will be forthcoming in what steps were taken to assure the safety of visitors once the warning light was lit, and that they will make whatever changes are necessary to avoid future tragedies of this kind.

Our sincerest condolences go out to the family of the young lad. Our best wishes for the swift and full recovery of his sister.

Originally posted at InjuryBoard by Todd Slaughter

Cell Phone Causes Major I-5 Crash - Federal Government Employee not Following California Law

Todd Slaughter — Mon, 13 Jul 2009 14:30:44 GMT

We all know it is a bad idea to fool around with our cell phones while we are driving. One group of researchers at the University of Utah found that drivers on cell phones are more likely to cause an accident than drivers who are drunk. Many of us do it anyway, and often we cause accidents or even deaths.

California, since July of 2008, has been one of five states that ban the use of hand held cell phones while driving. Moreover, in California the ban is one of primary enforcement, meaning that law enforcement officers can pull a driver over simply for the use of the phone.

One might expect that if anyone should be obeying the law in California, it would be law enforcement personnel. And yet, this week we see undercover officers of the federal government involved in a serious accident. These officers somehow managed to not see an enormous highway maintenance truck, at least until they were slamming into it from behind. The driver, an undercover agent of the Bureau of Land Management told investigators that he was talking on his cell phone and simply did not see the truck. His passenger is currently hospitalized with major internal injuries.

So, for the sake of a momentary convenience, the agent's cell phone use seriously injured his passenger, caused two others to be taken to the hospital, closed down the I-5 southbound for more than an hour, and destroyed a Caltrans maintenance vehicle. Was this phone call important enough to justify all this?

With very few exceptions, no one should be making calls while driving. It’s not just a bad idea, in California it’s against the law. Law enforcement personnel, whether state or federal, should know the law and act as examples to others. More and more drivers seem to be ignoring the law passed just one year ago. For federal employees to refuse to obey California law is unacceptable. Moreover, the officer’s cell-phone caused inattention proved to be reprehensibly dangerous, pure and simple.

Originally posted at InjuryBoard by Todd Slaughter

GM Agrees to Accept Future Product Claims on Existing Cars, But Not Existing Claims

Todd Slaughter — Wed, 01 Jul 2009 20:12:31 GMT

It was reported today in Bloomberg.com that GM has made concession in its bankruptcy proceeding to accept future injury claims arising from existing vehicles, but those already injured by the products will have their claims wiped out. This purportedly was done to lessen the objections to the bankruptcy plan, and to smooth the way for a potential purchase of the company. This concession contrasts with Chrysler's bankruptcy where immunity for all current and future claims arising out of pre-"New Chrysler" vehicles was extended.

This huge loophole still allows GM to avoid corporate responsibility for the injuries and deaths that their vehicles caused before the flight to bankruptcy. Those innocent injured and killed will lose all justice for the wrongs committed upon them for the perceived benefit of corporate survival. The cost of their injuries and deaths will be placed upon the American taxpayer in one form or another. How many times do these companies need to be bailed out?

Originally posted at InjuryBoard by Todd Slaughter

First Year Lawyer Discuss Medical Arbitration Agreements with First Year Doctor

Todd Slaughter — Wed, 01 Jul 2009 15:46:03 GMT

When Worlds Collide: First Year Lawyer talks with First Year Resident-Doctor about Arbitration Agreements

When it comes to personal injury and Arbitration Agreements, lawyers and doctors can share dramatically different views. These differences are evident in the conversation between a first year lawyer and a first year resident in general surgery.

Legal Training Is Scant: Looking at the curriculum of medical school it’s easy to see that legal training is at the bottom of the totem pole. Even a mere 3-hour course is a combination of legal requirements and medical ethics. Furthermore, even medical students and doctrs will tell you it's a generalized course as far as legal rights, documentation, and morality are concerned.

Do doctors even understand what Arbitration Agreements really entail?

L: “So Doc, do you understand what an Arbitration Agreement is?”

D: “I think it is a sentence in a binding agreement in which it is mutually agreed upon by two parties.”

L: “Okay, but do you understand what a person/patient sacrifices when they sign an Arbitration Agreement?”

D: “Yes, I believe that I do…it means they have to abide by the agreement they signed and can’t pursue other remedies.”

L: “Kinda...but it basically keeps the patient from being able to bring a medical malpractice suit against the doctor because they are waiving their right to a jury trial.”

D: “But I would think that the patient could still sue for negligence”

L: “How so?, because medical malpractice is negligence, so the Arbitration Agreement applies.”

D: ----Silence---

Do doctors have the ability to meet full disclosure requirements when it comes to Arbitration Agreements?

L: “Moving along, what’s your view on these clauses so far then?”

D: “So far, all I know is that anything the patient signs off on I have to inform them of. Nothing gets signed off on unless there is a witness, like a nurse, resident, or attending."

L: “Well if you have to inform them, where do you get your information for explaining what it means? Does it come for the insurance company, the overseeing doctor or nurse?”

D: “That’s a good question. I am not 100% sure but I assume it’s based on hierarchy, but they are usually standard forms.”

L: “Did you know that most Arbitration Agreements are signed without the doctor present and without explanation?”

D: “As far as that is concerned, I don’t see how because I can’t do a procedure without the patient knowing everything. I don’t think that an Arbitration Agreement would hold any water b/c in the hospital it is mandatory for us to make sure the patient understands everything, even if that requires bringing in an interpreter.”

L: “Then would you say a physician’s failure to explain something is a more common occurrence in office of a primary care physician than that of a surgeon?”

D: “Ethically the patient should know, regardless of whether it’s surgery or everyday treatment by a primary care physician. But, it’s risk vs. nature of the interaction. I have more of a risk as a surgeon for medical malpractice suits.”

Are doctors willing to take a stand against mandated Arbitration Agreements?

L: “If your insurance carrier required you to have your patients sign an Arbitration Agreement before operating then would you do it?”

D: “That’s a sticky situation because if they will only ensure me if I have patients sign it then I am in a hard spot; but for surgery, if it’s the only way I can get insurance, then absolutely. I just don’t think anything good comes out of medical malpractice lawsuits.”

L: “You don’t think that the system helps ensure the right people are practicing medicine, operating, and holding their services out to the public?”

D: “No, because 90% of the time these suits are frivolous and accomplish nothing.”

L: “But if they are frivolous then wouldn’t a jury be able to determine that? Why should a person be relegated to arbitration?”

D: “Sure, 1 in every 100 suits has merit, but the jury always looks to penalize the doctor no matter what. Don’t get me wrong; I don’t think that insurance companies should require doctors to have their patients sign off on Arbitration Agreements because I think it should be between the patient and the doctor. However, there has to be a way for me to do my job without paying absurd premiums and without having to be a doctor and an attorney at the same time.”

Note from the Editor: Interesting perspectives! However, in 30 years of practice I have never seen a jury "penalize" a doctor. Rather, juries are generally protective of the doctor, the field of medicine that is practiced, and the doctor's reputation. Also, arbitration clauses do not afford any greater protection against so-called frivilous suits than judicial proceedings. Finally, the standard of care for medical doctors is not set by attorneys, as Newt Gingrich repeatedily espouses. Rather, it is set by the doctors themselves. A doctor does not have to be a doctor and an attorney at the same time. The doctor only needs to follow the standard of care set by other similar doctors in the community.

Originally posted at InjuryBoard by Todd Slaughter

Before Rendering Critical Care Is It Ethical for a Physician to Insist that Patient Sign an Arbitration Clause?

Todd Slaughter — Tue, 30 Jun 2009 19:41:18 GMT

So you’ve been injured. You have some scrapes and bruises, a dislocated shoulder, perhaps a broken bone or two. We are all familiar with the process of getting those things fixed. After arriving at the hospital, we must first deal with the ceremonial paperwork. Do you have any insurance? Do you have any allergies? What medications are you currently using? Most of these questions are fairly self-explanatory and can be answered yes or no. And then, as you work your way down through the stack of paperwork, you come to what is often called a medical malpractice arbitration agreement. As this is probably less familiar, let’s take a look at what it means. Further, we will ask, and try to answer the question; can a doctor ethically deny emergency heath care to a patient who declines to sign a medical malpractice arbitration agreement?

In essence, this document asks, that in the event that the doctor harms you, that you give up your right to a jury trial. Instead, if you agree, any malpractice claim you might have will be heard by a panel of arbitrators. Arbitration is a form of non-judicial dispute resolution. Arbitrators are not judges in the legal sense and the verdict of a panel of arbitrators is binding only because you sign a contract promising to abide by it. Exactly what this panel looks like will vary from doctor to doctor and state to state. Generally however, your doctor would like any complaints against him to be heard by a panel of other doctors, not a jury of your peers.

So there you are, with your broken arm. You would probably like to get that fixed. But do you have to sacrifice your legal rights in order to get patched up? Does your physician have the right, either under the law or the code of ethics governing physicians to deny you treatment should you opt not to sign an arbitration agreement? The short answer to that question is…it depends.

Medical malpractice arbitration agreements are generally governed by the law of contracts. This means several things. First, if a court determines that the patient signing the contract was incapable of consenting to it the contract may be held to be invalid. Second, if the healthcare provider used fraud or coercion to compel the patient to sign, the contract will probably be held invalid.

However, many states have enacted statutes governing arbitration agreements in general, and medical malpractice agreements specifically. One example of such a statute comes from Utah. Utah State code, section 78B-3-421(3) states that a patient may not be denied health care on the sole basis that the patient refused to sign an arbitration agreement. Moreover, many other state courts have found these kinds of agreements to be innately coercive. In 1992, the Arizona Supreme Court held a contract invalid because it was presented to a patient as a condition of treatment and did not explicitly advise the patient that she was waiving her right to a jury trial. Broemer v. Abortion Services of Phoenix, Ltd., 840 P. 2d 1013 (Ariz., 1992).

It is almost impossible to argue that a patient seeking emergency care, in pain and afraid, is fully competent to assess the long-term legal consequences of signing documents the hospital requires. And yet, in many courts, in many different jurisdictions, these sorts of contracts have been upheld. So too, some medical ethics organizations feel it is ethical to deny a patient care if he or she declines to sign away legal rights. (see page 2, at lower right).

So, what should you, the hypothetical injured party, do as you sit, awaiting your health care? In large measure that depends on the nature of your injuries. Obviously if you need emergency care right now, you should get it. If your need is less urgent, you may wish to seek competent legal counsel to advise you prior to signing any contract.

One thing is clear however. Your legal rights regarding arbitration agreements will vary from state to state. Should you be injured by a doctor’s malpractice you should immediately seek legal advice from a medical malpractice attorney familiar with the legal climate in your jurisdiction. If you have signed an arbitration agreement, you may or may not be bound by that contract, depending on the circumstances of your particular case.

Originally posted at InjuryBoard by Todd Slaughter

Are There Ethical Standards for Medical Arbitration Agreements?

Todd Slaughter — Mon, 29 Jun 2009 19:24:04 GMT

Doctors can refuse to see patients who object to signing an Arbitration Clause. However, if the situation is a medical emergency the doctor cannot ethically refuse treatment where the patient will not agree to the clause. The American Medical Association (AMA) Principles of Medical Ethics states: “A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate....”. American Medical Association, Principles of Medical Ethics, 2001, available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.shtml. Yet, other principles within the same canon are directly adverse to the argument that a doctor can refuse to treat patients not presenting an emergency and who refuse to sign an Arbitration Agreement. The following principles from the AMA canon are relevant to this analysis:

“A physician shall support access to medical care for all people”. Id.

“A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient”. Id.

With regards to the first section, requiring patients to sign an Arbitration Agreement certainly conflicts with the concept of open access to medical care. These agreements close access; they limit medical care to only those that agree to relinquish certain constitutionally guaranteed rights. As more and more providers demand arbitration clauses in their service agreements, patients unwilling to sacrifice their legal rights have fewer and fewer providers available to them.

Concerning the second principle, requiring patients to give up legal rights before offering treatment reflects an aversion to, rather than a respect for, the law. This canon also imposes a responsibility upon the doctor to seek changes in the law if necessary to preserve the "best interests of the patient." This is intuitively contrary to a doctor's efforts to change his legal relationship with his patient by requiring mandatory arbitration agreement that lessens the patient's rights. Of course, doctors have argued that lower malpractice premiums serve the interest of the patient by keeping medical costs down. However, these minor cost savings are of small solace to the patient that suffers serious injury or death from the physician's malpractice. For that patient or the loved ones, the loss of the full remedies recognized by law is monumental in comparison.

It is important to note that the AMA principles are not laws themselves and only serve as standards of conduct. They guide physician behavior rather than govern it. In light of the increasing number of physicians and medical providers that are incorporating arbitration clauses into their service agreements, greater ethical guidance is needed from the AMA. Otherwise we may be vexed with a loss of physician accountability combined with a continually decreasing level of care.

Originally posted at InjuryBoard by Todd Slaughter

Do You Sign Your Doctor's Arbitration Agreement

Todd Slaughter — Thu, 25 Jun 2009 20:30:33 GMT

There is an increasing trend in the medical community to have patients sign off on a Doctor's Agreement that includes an Arbitration Clause. When a patient signs such an agreement he/she is waiving their right to sue the doctor, which means giving up the right to a jury trial and the guarantees of due process of law. By signing, the patient agrees to have any dispute with the doctor submitted to a binding arbitration, usually with no right of appeal. The Agreement also pre-selects the arbitrator or arbitration procedures, and the patient has no ability to change these clauses.

So far it appears that most courts are willing to enforce these Arbitration Agreements. Clearly, the doctor and the patient do not share the same bargaining position, and the doctor undoubtedly has a superior position of knowledge as to whether he/she has the skill and experience to deal with the medical issues presented by the patient. Presumably, circumstances will arise where a court will be compelled to find that these disparities have left the patient in an unacceptably vulnerable and dependent position, and the court will deem the agreement unconscionable and void. However, the courts to do not seem to be exercising a great deal of scrutiny regarding these agreements at this time, as more and more physicians and health care facilities incorporate them into their practices.

This is a silent type of so-called "tort reform" where the party in the greater financial and power position is preventing the injured party from having their "day in court." I doubt that any physicians would be willing to sign an arbitration clause with pharmaceutical companies to protect the companies if they provide bad advice or warnings about the their drugs/devices, and the doctors get sued. Arbitration clauses are usually a one-way street and they invariably compromise the position of the party in the weaker position.

Originally posted at InjuryBoard by Todd Slaughter