Birmingham Injury Blog

Time Magazine has posted an article that discusses a recent study that explored how secondhand smoking affects children. Dr. Giacomo Simonetti, an assistant professor at the Children's Hospital of University of Bern, conducted a study on the effects of parental smoking children. Going into the study he and his team already knew that about half of adults who had hypertension also had high blood pressure as children, and he and his team decided to research how high blood pressure as children turned into hypertension in adulthood.

The research showed that secondhand smoke in preschool age children significantly raised the probability of high blood pressure, even after factors like height and weight were adjusted. Preschoolers exposed to cigarette smoke had a 21% greater risk of high blood pressure compared to children not exposed to the smoke.

That's particularly concerning among five- and six-year olds, since their elevated blood pressure at such a young age primes them for maintaining this hazardous state into adulthood, and for chronic disease as well. “We know that blood pressure during childhood determines blood pressure in adulthood, so if a child has high blood pressure, it is likely to remain high in adulthood,” says Simonetti.

Bloomberg.com has posted an article about Taco Bell's interesting response to a particular lawsuit. The fast food chain has been sued for allegedly not having enough beef in their seasoned beef filling for it to be listed as beef.

Taco Bell is insisted that their taco filling is 88% beef and not 35% like the lawsuit claims. They also took out full page advertisements that said "Thank you for suing us" and waged a social media support campaign.

Taco Bell has been giving away coupons for 1 free taco on their Facebook fan page for consumers showing their support by 'liking' the page.

This is certainly a unique way to deal with being sued!

STLToday.com has posted an interesting article about a Maryland hospital's ban on photographing or videotaping of births. Meritus Medical Center, in Hagerstown, MD, even requires cell phones and cameras be turned off and only allows photographing to begin after the medical staff have given the okay.

The hospital is trying to protect both its patients and staff. The medical staff won't be distracted by electronics and can better focus their attention on the safety and health of the mother and baby. Also, hospital staff really don't want to be popping up on Facebook and YouTube videos, so their privacy is being protected as well.

This hospital's reasoning is backed by a variety of lawsuits, of which video can be used as evidence. For example, in 2007 a baby was born in the University of Illinois Hospital with permanent shoulder injuries. The video the baby's father took in the delivery room showed the midwife using "excessive force" and the family was paid $2.3 million in damages.

Many hospitals allow and even encourage recording because modern cameras, particularly those taking video, are so unobtrusive. But that same technology has introduced a wild card into a fraught scene that could shock a jury — with the mother screaming and staff responding (or not) to what may look like an emergency — all of which can be edited to misrepresent what actually took place.

The restrictions at Meritus went into effect in November, after the hospital began reviewing all of its policies because it was moving to a new facility and learned that six other hospitals in the region had barred photography and videography during births. Georgetown University Hospital in Washington has a similar policy.

Obstetricians are actually sued more frequently than other specialty doctors, and are also more wary than other doctors because their actions are usually caught on film. Videos are a particular worry for obstetricians, as the noises can make the situation seem worse, or can show something that a still camera photograph would have missed.

"The first consideration for a trial attorney is how this plays to a jury," said Paul Myre, a lawyer in St. Louis who has defended doctors and hospitals in malpractice cases for 25 years.

In one case in which he was involved, a man on the jury fainted when a simple instructional video of a birth was shown. "Just a normal childbirth can look fairly traumatic to a layperson," Myre said. He said he defended a doctor in another case in which the video showed that his client "had done everything right," but the jury still felt "the child needed to be taken care of."

USA Today has posted an article about a recent Supreme Court ruling that says car company Mazda can be sued for not having certain safety equipment in some of their vehicles, even though the vehicles met the government's safety standards. The decision allows a lawsuit over a woman's death in 2002 to progress forward.

Ms. Than Williamson was sitting in the middle seat of the second row of a 1993 Mazda MPV and was wearing her seatbelt, but it was only a lap belt. Upon collision, Williamson's body "jackknifed" around the lap belt, killing her. Her family is suing Mazda because the middle seat was not equipped with the standard 3 point seatbelt that is required for the outboard seats, even though the lap belt met federal safety requirements.

Mazda argued it was immune from lawsuits because the government in 1989 gave it a choice of a lap or three-point belts in the middle rear seat. A suit forcing them to use lap-and-shoulder belts, it argued, would invalidate the choice offered by regulators.

The ruling means the lawsuit by Than Williamson's family now can proceed in California. The lawsuit says Williamson, who was from Utah, died in the 2002 accident when her body jackknifed around the lap belt causing fatal internal injuries.

Mazda insists that it is immune from this lawsuit because the government allowed the company to use lap belts in middle seats in 1989. California state courts agreed with Mazda and threw out the case, citing a 2000 Supreme Court ruling that required automakers to install more airbags instead of passenger restraints.

Justice Stephen Breyer, writing the High Court opinion majority judgment, said the only way that Mazda would be immune is if the "significant objective" of the federal regulation was to give auto manufacturers a choice of which seat belts to install.

The Transportation Department "gave no indication that its safety goals required the mixture of seat-belt types that resulted from manufacturers' ability to choose different options," said Justice Sonia Sotomayor in a concurring opinion.

Added Breyer: "The more important reason why DOT did not require lap-and-shoulder belts for rear inner seats was that it thought that this requirement would not be cost-effective. The agency explained that it would be significantly more expensive for manufacturers to install lap-and shoulder belts in rear middle and aisle seats than in seats next to the car doors. But that fact -- the fact that DOT made a negative judgment about cost effectiveness -- cannot by itself show that DOT sought to forbid common law tort lawsuits in which a judge or jury might reach a different conclusion."

Justice Clarence Thomas agreed with the judgment, but said the National Traffic and Motor Vehicle Safety Act of 1966 made coming to that conclusion even easier: "Congress has instructed that 'compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law," Thomas said.

The Alabama Injury Lawyer Blog has posted an article that discusses a recent traffic study.

In this study, Alabama ranked as the #1 state in traffic fatalities involving speeding and is #9 for alcohol related traffic fatalities. This means that Alabama has roughly 0.75 speeding related fatalities per every million vehicles miles traveled. The national average is 0.39 crashes per million vehicle miles.

There were 0.53 DUI-related fatal crashes in Alabama per million vehicle miles traveled. This is lower than the number speeding-related fatalities yet still above the national average of 0.40 alcohol-related traffic fatalities per million vehicle miles.

Recovering from a car accident can be very costly- both financially and physically. This study should serve as a reminder that it never hurts to be extra careful on the road.

The LaBovick Injury Law Blog has posted an article on how social networking websites has impacted how personal injury litigation works.

If someone has sustained personal injury in an accident, their social networking profile should reflect it, if their case is to be taken seriously. The article mentions a specific lawsuit, Romano vs. Steelcase, which was an important case in how it changed the way information someone puts on their social networking profile can be used by the law.

According to motions that were filed in the Suffolk County, New York case, Kathleen Romano's MySpace and Facebook profiles included pictures that showed the plaintiff - who had supposedly sustained neck and back injuries due to a fall from her office chair at Steelcase - smiling happily outside and doing other things that should have been impossible due to her injuries. The defendant, her employer, subpoenaed Facebook and MySpace for full access to her profiles, included deleted content. Facebook refused, citing the Stored Communications Act. Romano refused to consent, and the matter went before the court.

Ultimately, the courts ruled in favor of Steelcase and granted it access to Romano's online profiles. Part of the reason for that decision lied in the fact that several of the public portions of Romano's profiles showed evidence that contradicted with her supposedly bed-bound state.

This is just one example of several times that social networking profiles have hurt someone's personal injury case. It's important to remember that no matter what your privacy settings are, nothing is truly private once you put it on the internet. Social networking is still a new type of evidence to use in court cases; however, as the websites continue to explode in popularity, profiles being used as evidence will surely increase as well.

The New York Personal Injury Law Blog has posted an article that discusses how the US Chamber of Commerce is planning to spend $10 million for advertising in the upcoming election to ensure tort "reformers" get elected. The only expenditure larger than this one is from the Democratic and Republican parties.

The article cites an ABC news story that says:

As the chamber increased its efforts in this year’s midterm elections, chamber CEO and President Thomas Donohue on Thursday issued a tough denunciation of government regulations, threatening to use the courts to block new rules that affect business and setting the chamber up as a major adversary of the Obama administration.

“Litigation is one of our most powerful tools for making sure that federal agencies follow the law and are held accountable,” he said in prepared remarks to the Des Moines Rotary Club. “Today, we are issuing a clarion call for Americans and lawmakers to stop the encroachment of a government by the regulators before it’s too late.”

Interestingly, the first line of the second paragraph actually admits that litigation is the most powerful "tool" that corporations use to hold people accountable. However, the same isn't true when it's a consumer trying to hold the corporation accountable.

The Georgia Injury Law Blog has posted an interesting article that discusses how the number of auto accidents, including fatalities involving pedestrians, can rise with the end of daylight savings time.

According to a report released by National Highway Traffic Safety Administration, 25% of the 4,092 pedestrian fatalities happened between 4pm and 8pm and 13% happened between 4am and 8am. These hours seem to be some of the most dangerous for pedestrians because drivers are still getting used to losing an hour of daylight and the low-light driving conditions and not see pedestrians.

The article provides several tips for drivers and pedestrians.

Drivers should be extra careful to look for pedestrians at cross walks and intersections and slow down. Also, pedestrians should wear brightly colored or reflective clothing to ensure visibility to approaching drivers. If walking in the early morning or evening, carry a flashlight. You should try to avoid distractions, such as an iPod, cell phone, or anything that would make it difficult to hear an approaching car.

Boston.com has posted an article about how many doctors that drug companies hire to be the spokesman for a drug actually have "questionable' records. Drug companies say that they hire the "most respected doctors in their fields for the critical task of teaching about the benefits and risks of their drugs."

But an investigation by ProPublica has brought to light that many doctors who are on drug companies' payrolls have been accused of "professional misconduct", lacked credentials as researchers or specialists in area of the specific drug, or had been disciplined by state boards.

A review of physician licensing records in the 15 most populous states and three others found sanctions against more than 250 speakers, including some of the highest paid. Their misconduct included inappropriately prescribing drugs, providing poor care, or having sex with patients. Some of the doctors had even lost their licenses.

More than 40 have received FDA warnings for research misconduct, lost hospital privileges, or been convicted of crimes. And at least 20 more have had two or more malpractice judgments or settlements. This accounting is by no means complete; many state regulators do not post these actions on their websites.

Five disciplined Massachusetts doctors appeared on the list. Their sanctions included engaging in “disruptive behavior with patients and other medical staff,’’ a lack of sensitivity during physician exams, and improperly peeking into employees’ medical records. They earned between $3,250 and $18,000 since 2009 from the seven companies that have disclosed payments.

There is quite a debate about whether or not doctors should be paid to endorse drugs because it might influence what they prescribe. Even small gifts or a small amount of money can influence some physicians, a study found.

ProPublica has also created a database system that keeps track of payments that seven drug companies make to various doctors. So far the database has tracked $257.8 million in payments, made just since 2009, for "speaking, consulting, and other duties."

All told, 384 of the approximately 17,700 individuals in the database earned more than $100,000 from one or more of the seven companies in 2009 and 2010. Nearly all were physicians, but a handful of pharmacists, nurse practitioners, and dietitians also made the list. Forty-three physicians made more than $200,000, including two who topped $300,000. In addition to Lilly and Cephalon, the companies include AstraZeneca, GlaxoSmithKline, Johnson & Johnson, Merck & Co., and Pfizer.

Yahoo! News has posted an article about the drastic rise in cell phone and texting related driving fatalities. Just texting caused 16,000 deaths from 2001-2007. Fatal car accidents involving cell phone use and texting while behind the wheel rose from 4,572 in 2005 to 5,780 in 2008. That's a 28% increase in just three years.

"The increases in distracted driving seem to be largely driven by increased use of cell phones to text," said lead researcher Fernando Wilson, an assistant professor in the School of Public Health at the University of North Texas Health Science Center at Fort Worth.

"Overall use of cell phones have been pretty steady, but texting volumes have increased dramatically in the last few years," he added.

The government has been taking action to try to lower distracted driving fatalities. For example, in January truck and bus drivers were banned from using handheld devices to send text messages while driving on interstates.

The latest report, published online Sept. 23 in the American Journal of Public Health, uses data from the National Center for Statistics and Analysis's Fatality Analysis Reporting System, which recorded all fatalities that occurred on public roads in the United States from 1999 to 2008.

Solving this problem permanently is a very complex task that cannot be done easily or simply. Wilson suggests that law enforcement more readily enforcing the ban on cell phones while driving would help, as would a device that would "inhibit cell phone use while driving."

5,000 deaths from cell phone use while driving is the same as a major airliner crashing every week in the US. Even hands-free devices are dangerous as they still distract you from making sound decisions and delay reaction time. No phone call is so important that it can't wait until you stop.

The National Highway Safety Administration has posted an article about the updated traffic fatality and injury data for 2009. The data shows there were 33,808 highway fatalities last year, the lowest number since 1950 (which had 33,186 deaths), even though the vehicle miles travelled had increased by 0.2% since 2008.

2009 also saw the lowest recorded fatality and injury rates with 1.13 deaths for every 100 million vehicle miles, compared to 1.26 deaths in 2008. Motorcycle fatalities also declined by 850, the first decrease in eleven years.

Injuries from vehicle crashes continued to decline for the tenth consecutive year, falling from 2.346 million in 2008 to 2.217 million in 2009, or a 5.5% decrease. Drunk driving fatalities also fell 7.4% from 2008- 10,839 fatalities in 2009 as opposed to 11, 711 in 2008.

All crashes, including injury, fatal, and property damage only, fell by 5.3%.

“Today’s numbers reflect the tangible benefits of record seat belt use and strong anti-drunk driving enforcement campaigns,” said NHTSA Administrator David Strickland. “But we are still losing more than 30,000 lives a year on our highways, and about a third of these involve drunk driving. We will continue to work with our state partners to strictly enforce both seat belt use and anti-drunk driving laws across this nation, every day and every night.”

The Baltimore Injury Lawyer Blog has posted an article about how trucking companies adding a "black box" to their trucks to record things like speed, location, and movement -basically to make sure the driver is where they're supposed to be- can come back to haunt the trucking company if one of their vehicles is involved in an accident.

John Bratt, writer of the article, discusses the impact of the black box in a recent case he was involved in over a Maryland trucking accident. He says that, like all experienced lawyers who deal with trucking accidents, he requested the vehicle data recorder information. It seems pretty reasonable to assume that factors like the risk factors like the truck's speed, vehicle load and how the load affected the truck's ability to stop is relevant information to the case.

Amazingly, the request for the truck's black box was denied because the defense's lawyer felt that it was "overly broad, unduly burdensome and seeks to discover information not reasonably calculated to lead to the discovery of admissible evidence."

This is as absurd as arguing that a video of the accident isn't relevant...there can't be anything more relevant in a truck accident trial than the "vehicle movement data."