Birmingham Injury Blog

We have handled a number of trucking cases and many involve truckers who seem to suffer from a dangerous condition called sleep apnea. When you combine falling asleep with a huge semi truck this can and has proved deadly in many truck wrecks which have devastated the lives of people in Alabama and across the country.

We were pleased to see a blog post from Ken Shigley about a proposal to test at risk truckers for sleep apnea. Hopefully this will help detect problems and allow truckers and their employers to safeguard not only the truckers but the innocent drivers of cars who share the roads with truckers.

If you have any questions about a truck wreck or automobile accident, please feel free to contact us.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Truck Wreck

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Mandatory arbitration is a growing problem in Alabama and this recent Wall Street Journal article discusses how it is becoming more common in Nursing Home contracts to require the family to sign an arbitration agreement. Please read this entire article but here is the heart of the argument:

Nursing homes have been among the biggest converts to the practice since a wave of big jury awards in the late 1990s. Attorneys litigating nursing-home cases on both sides say arbitration has quickly become the rule rather than the exception. Critics say the binding agreements are determining the outcome of high-stakes cases of vulnerable patients that should instead be handled by the courts. Too often, they say, people don't understand whether the clauses are mandatory, or that they are signing away their rights to sue. "It is an unfair practice given the unequal bargaining position between someone desperate to find a place for their loved ones and a large corporate entity like a nursing home," said Sen. Mel Martinez, a Florida Republican who introduced legislation along with Democratic Sen. Herb Kohl of Wisconsin.

'IT SOUNDS SO GOOD FOR THE CUSTOMER'

The biggest arbitration provider, the American Arbitration Association, frowns on agreements requiring arbitration in disputes over nursing-home care and generally refuses such cases. Some patients "really are not in an appropriate state of mind to evaluate an agreement like an arbitration clause," says Eric Tuchmann, the association's general counsel. A second group, the American Health Lawyers Association, also avoids them. Other arbitration groups say they generally accept the cases if the agreements comply with the law.

We have a number of blog posts on our Alabama Consumer Law Blog regarding arbitration and typically how unfair it is to consumers. Its hard to imagine a more unfair use of mandatory arbitration agreements than an elderly person going into a nursing home or the family trying to get their elderly parent into a nursing home. When someone has been injured or killed, forcing the family to go through arbitration seems particularly disgusting.

If you have a question about a nursing home case or an arbitration agreement regarding a nursing home case, please feel free to contact us for a free consultation.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Arbitration , Nursing Home

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One of the funniest blogs around is Legal Juice and this recent post is a classic on the drug Xyzal. You have to read this for yourself. I don't know what to say.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Drug Cases

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One thing that is often surprising to our clients when they have been injured in a car wreck or truck wreck is that the health insurance company (BlueCross BlueShield, United, etc.) which has paid for medical treatment often has the right to recover the amount of money that it spent on medical treatment. This right is called a "subrogation" right, which means that the health insurance company can “stand in the shoes” of the injured person and recover its money from the wrongdoer.

When a health insurance company pays medical bills, it normally does not pay dollar-for-dollar but instead pays a percentage. It is that lesser percentage (for example $200.00 on a $1000.00 bill) that must be reimbursed. Normally, the health insurance company will negotiate with the injured person and will reduce the amount that it claims as subrogation by the amount of the attorney’s fee being paid by the injured person to his or her attorney. This makes sense as the injured person has hired an attorney to create a “pool” of money from which the health insurance company is reaching into and drawing from. So the health insurance company should have to pay its share of the attorney’s fee to create that. This has the effect of lowering the amount that the injured person must pay back to the health insurance company.

The law changed a number of years ago so that the Jury can now hear that the injured person has health insurance and how much the health insurance company actually paid. We will address this in a separate blog post, but we did want to alert you to this fact and to be watching for this blog post from us.

If you have been injured in a car wreck or truck wreck and would like to talk to us, we are always happy to schedule a free consultation with you.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Car Wreck , Product Liability , Slip and Fall , Train Wreck , Truck Wreck

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“Adding insult to injury” – that is what it is like to be crashed into in a car or truck wreck and have medical bills that are turned over to a debt collector or a collection law-firm. If you are dealing with collectors because of your injuries in an automobile crash, we hope this blog post will be of some assistance.

Why am I getting collection notices? It could be your health insurance company is not paying the bills as quickly as they should. It could be that you have no health insurance or it excludes bills for car wrecks. Remember you may have “medical payments” insurance on your car insurance that would pay for some of the bills. But ultimately the insurance company for the driver who is at fault should pay – but this rarely happens until the whole case is settled. This is because the insurance company wants to use leverage and pressure from collection agencies and collection law-firms to force you into a settlement for less than you should – just to get these collectors off your back.

Every situation is different but remember that collectors, whether lawyers or non lawyers, cannot harass you. On our consumer blog – Alabama Consumer Law Blog – we have several articles about dealing with collectors that might be of interest to you:

When Can An Alabama Consumer Sue A Debt Collector - Part II?
Should An Alabama Consumer Contact A Consumer Lawyer When First Contacted By A Debt Collector?
Collection Letters Are Often Illegal In Alabama

We wish you the best of luck and please contact us if you have questions about harassing debt collectors or about your car wreck if you are not already represented by a lawyer.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Car Wreck , Truck Wreck

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Forbes magazine has a interesting discussion on Montgomery plaintiff's attorney Jere Beasley. We recommend that you read this - it is a fascinating discussion of how Beasley started with nothing 30 years ago and now is considered the best trial lawyer in the South and one of the best, if not the best, in the country. While some of the other prominent plaintiff's attorneys have fallen due to misconduct, we have never heard of anything like that with Beasley. People may criticize him but no one has questioned his integrity. This article also mentions the great work Andy Birchfield has done with drug litigation. Congratulations to Beasley and his firm for their good work.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Interesting News

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We recently ran across these statistics showing the number of car wrecks and automobile accidents in Alabama for the years 1971 to 2003. The report was release by the Alabama Department of Public Safety and is titled, "Alabama Traffic Wreck Statistics (1971-2003)."

The report is a reminder of just how dangerous Alabama highways and roadways can be and a reminder of how all of us can be or will likely be in a car wreck sometime in our lives. The report does not break down the statistics by county, city or type of roadway, other than to note rural versus urban. As one might expect, there were significantly more wrecks on "urban" roadways versus rural. For instance, in 2003 there were approximately 100,000 car accidents on urban roads and a little over 40,000 wrecks on urban roads. We are not sure under which category state highways fall.

One interesting statistic, and a bit of good news, is that even though the overall number of wrecks has steadily increased over the years (in 1985 the total number of wrecks was 113,000 and in 2003 it was 141,000) the total number of fatalities and injuries in wrecks has remained about the same. For instance, the total fatalities in 2003 was 1001 compared to 1096 fatalities in 1986. This is a testament to the safety and design features found in modern cars.

If you would like to look at the study in more detail you can view it by clicking here.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Car Wreck

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Alabama residents and consumers should be aware of the recent studies linking Avandia to heart attacks. Republican Senator Charles Grassley stated last year on the senate floor that Avandia may be linked to more than 100,000 heart attacks. There are several articles out discussing this issue including, "Diabetes Drug Avandia: Heart Risk?" on the MediceNet.com website and a Foxnews.com story, "Study: Avandia Raises Risk of Heart Attack."

Avandia is a drug developed by GlaxoSmithKline and used to treat Type 2 diabetes. The drug was approved in 1999 by the FDA to help reduce blood-sugar levels in people with type 2 diabetes. However, shortly after its release, one researcher, Bruce M. Psaty, MD, PhD criticized the drug noting that there was little evidence to support use of the drug.

While GlaxoSmithKline strongly denies the report and says that further study needs to be done, the short term study performed by Dr. Steven Nissen and Kathy Wolski, MPH, indicated "that Avandia increases heart attack risk by 43%-- and increases risk of death from heart disease by 64%."

If you have taken this drug and suffered a heart attack or any other cardiovascular problems, there may be a link. You should contact an attorney to evaluate your claim.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Drug Cases

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We often receive calls from potential clients who have fallen and been injured while on someone else's property wanting to know if they have a legal claim against the owner of the property. Like many other issues in the law, the answer isn't always clear cut.

Under Alabama law, it is not always clear whether you can hold the property owner liable. First, the standard to which the property owner will be held depends on why you were on the property. Were you there as a guest or invitee of the owner? Were you trespassing? Or, were you there for your own benefit? The property owner is held to a higher standard for someone he or she invites to the property versus someone who does not have permission to be on the property.

Owners do not owe an absolute duty to prevent someone from being injured on their property. The law simply requires that they act reasonably, prevent or cure a know danger, such as a spill in a grocery store or to warn customers or other individuals on the owner's property if there is a dangerous situation of which the owner is aware.

Where the owner fails to act reasonably under the circumstances, he, she or it, if it is a corporation, can be held liable for the injuries suffered by someone on their property. We have previously discussed what you should do in regards to treatment and documenting your injuries in a previous article. You can review it by clicking here.

If you are injured, you should immediately contact the property owner to make them aware of the incident and the dangerous condition. You should also ask to fill out an injury report and request a copy. Additionally, look at what you slipped or tripped on so that you can later describe it. It will be important for you to be able to prove that the owner had knowledge of the dangerous condition. Unless the owner admits to it, you will have to prove that the dangerous condition existed for such a length of time that the owner should have been aware of it and either fixed or warned of the danger. And, finally, if there are any witnesses, have someone get their contact information. At some point down the road, it will be your word against the owner's and it will help you to have someone back up your story.

One last note, many of the larger stores have 24/7 video survelliance both inside and outside the store. If you are injured, you should either in writing (remember to keep a signed copy if you send a letter) or when you are filling out the injury report put the store manager on notice not to destroy or alter the video as this may be your only documentation later to back up what happened.

In short, if you have been injured while on someone else's property, you may be legally entitled to compensation. However, you should consult an attorney to find out if you have a case or claim against the property owner.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Slip and Fall

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You've been in a car wreck in Alabama, you still hurt and are recovering, and now you start getting calls from the insurance adjuster for the person that hit you. What should you do?

There is nothing necessarily wrong with talking with the insurance adjuster. They are usually very nice to you, which is obviously in their best interest. Their goal is to settle the claim for what they call a "reasonable amount" or to "reasonably compensate you for your injuries." The problem is that our experience here in Birmingham and through out the state of Alabama is that insurance companies often have a far different idea of what is fair or reasonable compensation for your personal injuries than you do or than your lawyer will.

Inevitably, the adjuster will want to take a statement from you "just to document their file." We are usually reluctant to let them take a recorded statement of our clients. If it is truly just to document the file, then they shouldn't have a problem letting you take a recorded statement of their insured for their file. We have never had one take us up on this request.

In truth, they are trying to pin you down to a recorded statement in hopes that you might say something that doesn't check out or is inconsistent with something that you previously said at the scene or might later say in deposition or at trial.

If you do give a recorded statement, the adjuster will likely ask you some background questions about your medical history, employment, etc. They will then ask you questions about the car wreck, i.e., where you were going, how fast you were driving, what you saw, what happened, etc. They will usually finish by asking about your injuries. During the statement they will try to pin you down to the exact story. And be sure, they will hold you to this in the future.

If you give a statement, the adjuster is going to look very critically at your claim including your statement, the accident report and the medical bills and records to see if there is anything they can find to discount your claim. They will compare your statement to their insured's version of what happened and whatever other records they can obtain.

If you have had any preexisting back or other injuries, they will significantly discount the value of your case regardless of whether you were having no problems before the car wreck or automobile accident. If you say anything that doesn't check out with their insured's version, they will also discount your claim.

In truth, there is no advantage to them in evaluating your claim for settlement purposes in taking a recorded statement rather than just speaking with you or taking written notes. If they are pushing you to do so, we recommend you contact an attorney prior to giving a recorded statement.

We've never seen a claim settle for more money where an injured party has given a statement. In fact, we see quite the opposite. You should always remember that the insurance adjuster represents the insurance company. He or she is not your friend and does not keep their job or get raises by paying out lots of money on claims. They get these things by saving the insurance company money. If you do feel like you need to give a statement, consult an attorney before doing so.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post

Posted In: Car Wreck , Insurance

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On the heels of the story about the drug Traysol, here is another story about a drug - this time the very well known and used blood thinner Heparin. According to this story by cbsnews.com, the FDA is investigating the drug and its connections to potentially contaminated ingredients from China.

The introduction to this short, but excellent news article is as follows:

Every day thousands of Americans rely on the blood thinner Heparin to survive.

Now that drug is under suspicion for 21 deaths and hundreds of allergic reactions. Baxter International, a major manufacturer of the drug, has stopped selling almost all forms of Heparin.

CBS News medical correspondent Dr. Emily Senay reports that officials say they have not yet identified the cause, but are looking to China where nearly half of Heparin's raw ingredients come from

Read the rest of this story here and stay tuned for more developments on this troubling issue.

Posted by John Watts & M. Stan Herring | Permalink | Email This Post | Comments (0)

Posted In: Drug Cases

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Brian Beckcom from the excellent Houston Injury & Accident Law blog recently posted an article about how the drug Traysylol has been linked to a staggering number of deaths. As many as 1000 per month. You can read the story from 60 Minutes here at cbsnews.com but here is the chilling introduction:

This is the story of a drug that was on the market for 14 years and may have contributed to the deaths of thousands of patients. Trasylol, made by Bayer, is given in the operating room to control bleeding. It was a big money maker.

As correspondent Scott Pelley reports, Bayer marketed Trasylol aggressively until it was used in about one third of all cardiac bypass operations in America.

But then, in 2006, a study showed widespread death associated with Trasylol, and as it turns out there was concern long before that.

How much did Bayer know? And why did it take Bayer and the U.S. Food and Drug Administration nearly two years to take the drug off the market after major studies revealed the danger? Two years - during which it's estimated Trasylol was contributing to the loss of one thousand lives a month.

Please read the rest of this story and if you have been injured or had a loved one die as a result of using Trasylol please contact an attorney who is experienced in dealing with dangerous drugs - our firm and all others that we know about do not charge to discuss your options with you.

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Posted In: Drug Cases

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