Kansas City Personal Injury Lawyer

Poll: Teen Drivers Know Texting Is Dangerous; Do It Anyway

Brett Emison — Wed, 16 May 2012 11:02:00 GMT

A new poll released this week shows that nearly all teenage drivers know that texting and driving is dangerous, but nearly half admit to texting while driving.

This survey (conducted for AT&T) is the second poll in the last week showing that teen drivers continue to text while driving, even though they know it is dangerous. Consumer Reports released a survey last week showing 80% of teen drivers knew the risk of texting while driving, but nearly 1/3 engaged in the conduct anyway.

In AT&T's survey, 97% of teen drivers said texting while driving was dangerous.

It is dangerous. In fact, it's even more dangerous than drinking and driving.

Drivers are 2 times more likely to cause a crash if texting than if drinking
Texting drivers need 6 times as much distance to stop as a drunk driver
Texting drivers gaze at their mobile devices for an average of 5 seconds - more than 440 feet at highway speed

Perhaps young drivers' sense of invincibility cause them to ignore what they know about the dangers. They think, "it can't happen to me."

But distracted driving accidents can happen to you or a loved one. CNN reported that in 2009, more than half-a-million people were involved in distracted driving crashes and nearly 5,500 people were killed.

To combat the distracted driving problem a group of more than 750 trial attorneys from the country have volunteered to speak at schools in all 50 states to spread the word about distracted driving dangers to young drivers. The group has set a goal of speaking to more than 100,000 students in one week during National Distracted Driving Awareness Month (April 2012).

Please don't put yourself and others at risk.

Despite dangers, U.S. teens still text and drive: poll [Chris Michaud at Reuters]
Teens Know Texting and Driving Is Dangerous, Yet Do It Anyway, AT&T Survey Reveals [Rene Wisely at Edmunds Inside Line]
Eight In 10 Young Drivers Admit Texting, Driving: Survey [Suzanne Kane at The Car Connection]
Texting-while-driving: Teens do because we do [Janice D'Arc at Washington Post On Parenting]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

YouTube Sensation "How To Wake Up A Kid" Shows Seat Belt Dangers

Brett Emison — Tue, 15 May 2012 07:11:00 GMT

One of the newest YouTube sensations is a young 3-year-old boy who apparently likes to wake up to music by Nirvana. As of posting, the video had more than 1 million hits.

http://www.youtube.com/watch?v=oRm8RmNGFq4&feature=youtu.be

This video has gotten lots of coverage - including The Daily Mail and a number of US network television outlets. However, none of the stories mention the child's seat belt. The video clearly shows the toddler in need of a booster seat with the seat belt improperly cutting across the child's neck (rather than across the child's chest and shoulder).

Child Sleeping With Seat Belt Across Neck

The belt position doesn't get any better when the child wakes up:

Belt Position Does Not Improve When Child Wakes

Based on the comments to the video and to their credit, the child's brother and sister who took the video appear to now understand the danger their little brother was in because of the placement of the seat belt. Many siblings (and even parents) don't understand the dangers of improper seat belt positioning until it's too late.

The Safety Record blog in November 2011 noted a study that showed significant seat belt misuse among children ages 4 to 9 years old. The study showed that, among drivers securing children ages 4 to 9 in seat belts, 78% reported improper belt fit. Of that, improper shoulder belt fit accounted for 44% and improper lap belt position for 62% (amount totals great than 100% because in some instances both shoulder and lap belt fit improperly).

This seat belt geometry defect affects what has become known as the "forgotten child" - the group of children who have outgrown the five-point child safety seat, but are too small for seat belts. This group of children need a proper booster seat to achieve proper seat belt fit.

According to The Safety Record, the study's findings were consistent with laboratory evidence that showed incorrect belt positioning is commonly the result of a mismatch between child body proportions and rear seat belt geometry.

Even at age 9, most children's thighs are too short to sit in most vehicle rear seats without slumping. The slumped postures invariably lead to poor lap belt fit. In regard to shoulder belt positioning, the discomfort associated with having the belt against the face or neck can trigger the child to put the belt under their arm or behind their back. Putting the belt under the arm or behind the back is a much more serious belt fit problem than a belt that rides too close to the face or neck because these positions result in greater travel of the torso, compression of the abdomen, and stress on the spine as the body comes to a stop in a crash.

The study concluded that caregivers "may not be aware of proper seat belt positioning for the lap and shoulder belts or may not understand the serious and potentially permanent injuries that result from improper seat belt fit."

Seat belts will save lives, but only if they are worn -- and only then if they are worn properly. Most drivers and passengers never think about proper seat belt fit (or seat belt geometry). Most simply assume if the seat belt is buckled, it will automatically protect you. Seat belts must fit properly in order to be effective.

The lap belt portion must fit snugly across the body structures of your hips. For three-point (or lap/shoulder) belts, the shoulder portion must be snug against your chest and cross at your shoulder. A few vehicles on the road today are equipped with seat belts mounted inside the seat back itself -- known as "integrated seat belts" or "all belts to seat". These belts provide the safest fit and geometry. Most other vehicles at least provide adjustable shoulder belts (although the range of adjustability may vary). Make sure to adjust your shoulder belt so that it fits properly. Never let the seat belt cross over your neck and never tuck the shoulder belt behind you.

Consider these general guidelines that apply to virtually all cars.

1. A seatbelt that isn’t worn is completely ineffective. This is stating the obvious, but far too many people choose not to use the seatbelts installed in their vehicles. Wearing a seatbelt greatly reduces the risk of severe injury and death in the majority of accidents.

2. The lap belt must be worn low and snug across the hips with the shoulder portion snug against the chest. Any device, action or seat position that creates slack in the seatbelt (such as a reclined seat, putting the shoulder portion behind your back or under your arm, or holding the shoulder portion away from your body) reduces its effectiveness and creates an increased risk of injuries. Additionally, if the lap belt is allowed to creep up into the stomach area, severe internal injuries could result if you are involved in a crash.

3. If your vehicle has an adjustable seatbelt restraint system, make sure it is adjusted to keep belts away from your face and neck. Many modern cars have adjustments that allow you to change the geometry of the belts – particularly the shoulder belt. Consult your owner’s manual to determine if your vehicle has this feature and make sure you have made proper adjustments for maximum safety and comfort.

4. Use booster seats for children. Most restraint systems are designed for adults and may not fit children well. Instead of allowing children to ride with shoulder harnesses behind their back or under their arm, have them use a booster seat which allows them to “fit” the restraint system better. This provides not only increased comfort, but also increased safety.

5. Do not place the shoulder strap behind your back. Some passengers place the shoulder strap behind their back for comfort reasons. However, you should never do this. Placing the shoulder belt behind your back leaves your upper torso -- including your neck, face and head -- completely unrestrained during a collision. In addition, placing the should strap behind your back can alter the lap belt geometry and make the lap belt less effective.

6. Consider seat belt design when riding in a vehicle. Not all seatbelt systems are created equally. Proper seatbelt design is critical to occupant safety and bad belts can actually make injuries worse. Most drivers simply assume putting a seat belt on automatically makes you safer. However, car companies have known for decades that poorly designed seat belts -- like lap belt only designs or seat belts that do not fit correctly -- will make injuries worse. Lap belt only designs cause the upper portion of your body to jack-knife forward in a frontal collision. Jack-knifing in this way will cause severe internal damage (likely to your liver, stomach or bowel) and may even break your back and sever your spinal cord, causing paralysis. Poor belt geometry will permit your torso to slam into the shoulder belt, causing severe damage to your heart and lungs. Geometry that permits the shoulder belt to cross at your neck may also lead to paralysis or death in even a minor frontal collision.

Bad Belts Make Things Worse

Defective seat belts -- those with bad geometry, poor fit or other bad designs -- will make injuries worse in an accident. Most drivers simply assume putting a seat belt on automatically makes you safer. However, car companies have known for decades that poorly designed seat belts -- like lap belt only designs or seat belts that do not fit correctly -- will make injuries worse. Lap belt only designs cause the upper portion of your body to jack-knife forward in a frontal collision. Jack-knifing in this way will cause severe internal damage (likely to your liver, stomach or bowel) and may even break your back and sever your spinal cord, causing paralysis. Poor belt geometry will permit your torso to slam into the shoulder belt, causing severe damage to your heart and lungs. Geometry that permits the shoulder belt to cross at your neck may also lead to paralysis or death in even a minor frontal collision.

Many safety experts consider the seatbelt the most effective safety feature in your car. In order to make sure it is effective, it must be worn the correct way – and at all times.

Hilarious video of sleeping toddler air drumming to Nirvana before he wakes up and fully rocks out [Daily Mail Reporter]
Study Shows Seat Belt Misuse Among 4 to 9 Year Olds [The Safety Record]
Why Use Booster Seats? [Washington State Booster Seat Coalition]
Ratings from the Insurance Institute for Highway Safety take the guesswork out of selecting boosters most likely to provide good lap and shoulder belt fit in a range of vehicles [IIHS]
Did You Know... How You Wear You Seat Belt Can Be As Crucial As If You Wear Your Seat Belt?
Buckle Up For Winter Driving Safety

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Friday Legal & Safety News Round Up (May 11, 2012)

Brett Emison — Fri, 11 May 2012 11:22:00 GMT

Legal, safety, and other news that caught my attention this week:

The Fight Against Forced Arbitration Continues [Katie Gommel at Fighting for Justice]
Sorry Doesn't Cut It [Scott Greenfield at Simple Justice]
Oliver Ganser; BMW's Product Strategy Manager on the 2013 BMW 3-Series [Driving the Nation]
My Talk At Avvocating [Greenfield at Simple Justice]
Post-tort-reform Texas doctor supply [Ted Frank at Point of Law]
Ten reasons I'd rather try a case against a good lawyer [Karen Koehler at The Velvet Hammer]
Tea Party Leader Slams "Myth of Frivolous Lawsuits" [Andrew Cochran at The 7th Amendment Advocate]
Disconnected from by Self Phone [Eric Turkewitz at New York Personal Injury Law Blog]
'Oh Sh*t: Attorney Faces Discipline for Allegedly Cursing in Court [Staci Zaretsky at Above the Law]
Tort Deformers Exploit Over Blown Egos [Michael Stratton at Injury Board]
Ducking Responsibility with a Cowardly Legal Move [The Pop Tort]
House approves measure, Nonpartisan Court Plan to go before voters [Scott Lauck at MO Lawyers Weekly (subscription)]
Southwest Passenger's Lawsuit Demands Clear Definition of Who Is a 'Customer of Size' [Bruce Carton at Law.com Legal Blog Watch]
Study Says Texas Medical Malpractice Tort "Reform" Is A Bust (Is Congress Listening?) [Turkewitz at New York Personal Injury Law Blog]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Insurance Institute Pushes For Stronger Semi Truck Underride Guards; NHTSA Waits

Brett Emison — Thu, 10 May 2012 11:16:00 GMT

The Insurance Institute for Highway Safety says more than 400 drivers and passengers are killed each year due to inadequate trailer underride guards that permit vehicle to submarine beneath a semi truck's trailer. About 5,000 additional people are injured in underride crashes.

Underride guards have been required since the 1950s, but standards for tractor-trailer underride guards have not changed since the 1990s. Many underride guards are simply not strong enough to protect motorists.

"A guard can still fail in a crash test with a speed as low as 30 or 35 miles an hour," said Matthew Brumbelow, senior research engineer for the Insurance Institute for Highway Safety [IIHS].

Source: Brendan McLaughlin at ABC Action News

The Insurance Institute for Highway Safety (IIHS) contends that underride bar technology has not kept pace with vehicle crashworthiness and is pushing for improved underride bars and is petitioning the federal government to require stronger bars on more trucks. Some of the problems the IIHS has noted are that the bars are not required on all trucks and when they are present on exempt trucks and trailers, they don’t meet the 1996 rules for strength or energy absorption. Another problem is that “Under current certification standards, the trailer, underride guard, bolts, and welding don't have to be tested as a whole system.”

Even though the Insurance Institute has recognized and documented this risk, the National Highway Traffic Safety Administration (NHTSA) is sitting on its hands until it can complete its own study. We've been waiting three years already.

The National Highway Traffic Safety Administration (NHTSA) is well aware of the scope and severity of the truck underride issue, and first identified the need to strengthen underride performance in rear corner impact crashes in 2009. Since then, we have been conducting an in-depth field analysis to determine how we can improve that standard to save lives.

So, NHTSA has known about this critical safety issue since 2009, but hasn't changed the standards yet. Instead, NHTSA has conducted an "in-depth field analysis". What does that mean? NHTSA waits until someone is injured or killed by an underride guard failure "to determine how [it] can improve the standard...." How many people have to be injured or die before NHTSA's "field analysis" convinces it to require stronger underride guards?

Perhaps the problem is the severe pushback from the trucking industry and their lobbyists. Though giving lip service support to NHTSA's "study", the Truck Trailer Manufacturers Association is opposed to new standards because "adding structural components to trailers to support full-width rigid guards will add weight to the trailers and necessarily require the displacement of some cargo onto other trucks and trailers."

If trucking companies won't do the right thing and improve these critical safety components on their own, hopefully NHTSA will take this study into consideration and make the U.S. regulations on underride bars more stringent.

I-Team: Feds take their time addressing safety concerns about the rear of tractor trailers [Brendan McLaughlin at ABC Action News]
IIHS Underride Crash Test Video

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Cardiologist Robert Hauser Pushes For Better Medical Device Safety

Brett Emison — Wed, 09 May 2012 11:11:00 GMT

According to a report in the Minneapolis Star Tribune, Dr. Robert Hauser has made a career out of monitoring and sometimes challenging the medical industry over the safety of its products - including medical devices implanted in people. Even companies that are Dr. Hauser's targets describe him as ethical, passionate, and persistent.

Dr. Hauser's passion started more than 40 years ago during a research project involving nuclear battery pacemakers.

"We were told, 'Go ahead and test them and write a favorable report,'" Dr. Hauser said. "All of them failed."

Dr. Hauser says the FDA must be more vigilant - "You have to go out and look for problems. If you wait for problems to come to you, it's too late."

Substantial lack of testing has led to problems with various medical devices including vaginal mesh devices, artificial knees, and DePuy metal-on-metal hips such as the ASR and Pinnacle hip replacement system.

In December 2011, the New York Times confirmed that the high failure rate for DePuy's metal-on-metal hips - including the recalled Acetabular Hip Replacement Systems - resulted in a high cost to patients, hospitals, insurers, employers, and tax payers totaling in the billions of dollars in the coming years. NBC called metal-on-metal hips one of the largest failures ever.

While DePuy did receive FDA approval for its recalled metal-on-metal hips systems, the abbreviated FDA approval process that DePuy used has been questioned. The 510(k) approval process rests on the notion that if one device has been cleared by the FDA, then similar devices need little or no testing on actual patients. If a new medical device is "substantially equivalent" to an already-marketed device, then clinical testing is not required. This allowed for DePuy's metal-on-metal hips to be approved without any patent testing at all.

The FDA's 510(k) program has been under attack from many fronts, including by the New England Journal of Medicine. The NEJM agreed with the Institute of Medicine that the 510(k) approval process was "unfixable". An editorial in the NEJM recommended that the FDA immediately stop using the 510(k) program for Class III devices -- which are considered to pose the highest threat to patients. The NEJM editorial specifically discussed the ongoing problems with metal-on-metal hip implants, including Johnson & Johnson's DePuy ASR Acetabular System and DePuy ASR Hip Resurfacing System.

As a report by Bloomberg noted, this safety debate has presented a conundrum for medical device makers. These manufactures have avoided testing and clinical scrutiny by claiming the devices are similar to previous versions, yet are marketing the devices to doctors and patients as having advanced far beyond original versions.

Medical device manufacturers need to patient safety first - not profits. Congress, the FDA, and medical device manufacturers need to fix this process. All medical devices should be properly tested before implanted into unknowing patients.

[More on the DePuy Hip Recall]

Cardiologist's stand for better device safety spans 40 years [James Walsh at Star Tribune]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

FMCSA Will Investigate Semi Truck Driver Safety

Brett Emison — Tue, 08 May 2012 11:11:00 GMT

The Federal Motor Carrier Safety Administration (FMCSA) will launch two separate research studies in summer 2012 to examine factors affecting commercial truck driver safety.

On April 20, 2012, FMCSA Administrator Anne. S. Ferro, said the agency will examine to what extent driver compensation practices and detention time at shippers' loading and receiving docks affect drivers' ability to drive safely.

One federal study will explore whether long waiting times in a parked vehicle a the shipper's loading dock - which is now counted as "off-duty time" under the new driver hours of service rules - might contributed to driver fatigue and performance.

A second study would examine whether a link exists between how drivers are compensated - either by the load or by the mile - and driver behavior behind the wheel.

Many tractor trailer drivers are under constant pressure to push themselves to the limit in order to maximize daily income. In many cases, the system is stacked against truck drivers because the big trucking companies that make millions off of the driver's hard work make sure to shift the risks and burdens onto the driver - not the company. Drivers are most frequently paid by the mile or load - not by the hour. When there is highway congestion, road construction, bad weather, or other delay, it is the driver who is penalized. The driver must work longer hours for the same pay and are sometimes pressured to "make up time."

New rules that count waiting time during loading as "off-duty" time do not help with driver fatigue. Driver fatigue - particularly that resulting from sleep apnea is a significant (but under-recognized) problem. Truckinginfo.com - the web site of Heavy Duty Trucking magazine - has reported on a study that found 41% of Australian commercial truck drivers. Truckinginfo suggests that 30% of American truck drivers may suffer from obstructive sleep apnea that can contribute to fatigued driving, accidents, crashes, and collisions. An NPR report noted that truck drivers are more likely to be overweight, which is a significant factor in the onset of sleep apnea.

According to the US Department of Transportation, untreated sleep apnea can cause excessive daytime sleepiness, which impairs judgment, causes attention deficits, slows reaction times, and decreases alertness. Any one of these sleep apnea side effects can have devastating consequences for a pilot of an 80,000 tractor-trailer and those around him on the highway. Untreated sleep apnea greatly increases a truck driver's risk for being involved in a fatigue-related motor vehicle crash.

[More on Semi Truck and Tractor Trailer Crashes]

FMCSA to investigate driver safety [Toby Gooley and Mark B. Solomon at DC Velocity]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Enterprise Holding Up Rental Car Safety Bill

Brett Emison — Mon, 07 May 2012 12:55:00 GMT

Rental car giant, Enterprise, says, "we'll pick you up", but if Enterprise gets its way, it might pick you up in a vehicle recalled because of safety defects.

Under current law, rental car companies like Enterprise, Hertz, Avis, Budget, National, Alamo, etc. can rent you a vehicle that has been recalled for a safety defect - what safety experts have called Rental Car Roulette.

"The rental car companies have been hiding a dirty little secret - they wait until it's convenient to do safety recall repairs."

- Clarence Ditlow, Executive Director, Center for Auto Safety

A couple months ago, safety group Consumers for Auto Reliability and Hertz reached an agreement calling on Congress to give NHTSA authority to prohibit rental car companies from renting, leasing, or selling recalled vehicles until the vehicles are repaired. Enterprise refused to join the coalition calling on greater safety for rental car customers.

The public outcry was deafening. Just days later, after receiving more than 130,000 signatures protesting Enterprise's policy of continuing to rent defective and recalled vehicles, Enterprise changed its stance.

Or did it?

The St. Louis Post-Dispatch has reported that Enterprise Holdings Inc. - which controls Enterprise Rent-A-Car, National Rental Car, Alamo Rent A Car, and WeCar is holding up the process by seeking special loopholes that would allow it to continue to rent and sell cars under recall for safety reasons without first getting the cars fixed.

The advocacy group Consumers for Auto Reliability and Safety contended in a letter to Enterprise ... that provisions the companies want "would radically weaken consumer protections."

Enterprise and other car rental companies are at odds with a separate agreement by Hertz and safety experts. The Hertz agreement is stricter than what Enterprise and other car rental companies will accept.

For Enterprise, it appears to be about money and profits. From the Post-Dispatch report:

Enterprise defends those provisions [allowing for renting recalled vehicles]. The company says that it would rent a recalled vehicle "to avoid turning away customers who show up at their locations when their desired vehicle is subject to a recall which the manufacturer deems appropriate for disclosure rather than grounding."

Much of the outcry against renting defective, recalled vehicles stems from the tragic deaths of Raechel and Jacqueline Houck. Raechel and Jackie are two faces of lawsuit abuse and were killed when Enterprise rented the girls a recalled PT Cruiser that caught fire as the girls drove Highway 101 in California. Enterprise knew the PT Cruiser had been recalled; knew the PT Cruiser was unsafe, but rented the defective car anyway, telling the girls they were getting an "upgrade."

Instead of accepting responsibility, Enterprise spent 5 years trying to avoid responsibility. Enterprise went so far to blame the Houck sisters, telling the girls' parents they were suicidal or on drugs.

However, just days before the trial, Enterprise finally admitted responsibility. A jury ordered Enterprise to pay $15 million to the girls' parents. But even that amount has not been enough to convince Enterprise to stop its deadly practice of providing recalled vehicles to unsuspecting renters.

The girls' mother, Carol Houck, said she hoped to see this legislation - named after her daughters - but thinks it unlikely given Enterprise's continued opposition. "All we want is for them to fix recalled cars and not rent them. It's so simple," she said.

Simple, indeed.

[More Faces of Lawsuit Abuse]

Enterprise criticized for stance on rental car safety bill [Bill Lambrecht at St. Louis Post-Dispatch]
Faces of Lawsuit Abuse: The Houck Family
Rental Car Roulette: Will Car Rental Companies Stop Renting Recalled Vehicles?

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Did You Know... Medical Malpractice Lawsuits Are Declining?

Brett Emison — Mon, 07 May 2012 11:11:00 GMT

"The number of medical malpractice suits filed in the U.S. each year is actually declining...." So reports Kate Madden Yee at AuntMinnie.com, quoting a report from Dr. Richard Daffner and Dr. Leonard Berlin. Even when plaintiffs do file suit and win, "most cases settle for the insurance money, despite frightening news headlines that report settlements of millions of dollars."

Even when plaintiffs file suit and win, these doctors suggest the plaintiff's are not in it for the "big award."

"Let's say the plaintiff wins the case with a $20 million verdict. The defense might respond by saying, 'Well sure, you've got this verdict, but we only have $1 million of insurance.' A very high percentage of plaintiffs will take that insurance money rather than going through a lengthy appeals process to get the big award."

Ted references a new study on the Draconian Texas tort reform laws passed in 2003 (that reduced damage awards to victims by more than 70%). Tort reform advocates cite the "success" of the Texas tort reform saying that doctors were fleeing Texas in droves before tort reform and returned following tort reform. But according to this new study: Not so fast.

Does state tort reform affect physician supply? Tort reformers certainly believe so. Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and did not measurably improve after reform. This is true whether one looks at all patient care physicians in Texas or at high-malpractice-risk specialties.

Source: Does Tort Reform Affect Physician Supply? Evidence from Texas

Not only did doctors not flock to Texas after tort reform, physician supply actually grew more slowly than before the "reforms" were enacted. The authors concluded:

Any effect of tort reform is too small for us to measure, against the background of other, larger forces affecting physician supply, both in Texas and nationally. This 'non-result' is broadly consistent with other studies....

Ted remains skeptical and is searching for explanation. Specifically, Ted said: "even the authors acknowledge that the reforms dramatically decreased malpractice expenses for doctors. Are we to conclude that doctors do not respond to economic incentives?" Ted also remained "skeptical that a wealth transfer from lawyers to doctors and patients didn't have positive externalities...."

While the reforms cut malpractice awards in Texas by more than 70%, medical malpractice insurance companies reduced malpractice premiums by much less. Though the reductions were significant - up to 50% reduction by one insurer, as sizable windfall (potentially more than 20%) was had by insurance companies.

And remember, the caps did not mean fewer people were injured or killed by negligent doctors. The caps just meant very younger people, older people, single people, and stay-at-home moms were largely unable to bring claims because they lacked economic losses -- lost income, inability to support minor children, etc. -- sufficient to justify the expense and risk of bring suit. Those that did bring suit had damages substantially limited under the new laws. Giving bad doctors de facto immunity burdens tax payers and state government that now must care for the victims through Medicaid, Medicare, and other assistance programs.

ARRS: To avoid malpractice suits, watch what you don't say [Kate Madden Yee at AuntMinnie.com]
Does Tort Reform Affect Physician Supply? Evidence from Texas [David A. Hyman (University of Illinois College of Law); Charles Silver (University of Texas at Austin - School of Law); Bernard S. Black (Northwestern University - School of Law)]

[More from the Did You Know... Series]

[More on Tort Reform]

[More on your 7th Amendment Rights]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Friday Legal & Safety News Round Up: May 4, 2012

Brett Emison — Fri, 04 May 2012 11:08:00 GMT

Legal, safety and other news that caught my interest this week:

So You Want To Be A Lawyer? [Scott Greenfield at Simple Justice]
Facebook "Likes" Aren't Speech Protected By the First Amendment - Bland v. Roberts [Eric Goldman at Technology & Marketing Law Blog]
iPad Use on the Bench [Geri L. Dreiling at Lawyer Tech Review]
32 Reasons to Change Dentists After Breaking Up with Your Dentist Girlfriend [CJR at Torts Prof Blog]
Will We Finally Have a la Carte T.V. Content? [Deven Desai at Concurring Opinions]
KFC Food Poisoning Leads to $8 Million Verdict [Miranda Miller at Injury Board]
iPad transforming business development and business intelligence for lawyers [Kevin O'Keefe at Real Lawyers Have Blogs]
The Chinese Dissident, George Zimmerman, Bernhard Goetz, and Jury Selection [Eric Turkewitz at New York Personal Injury Law Blog]

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison

Sen. Will Kraus Understands Why Voters Are "Very Frustrated" With His Vote Against Mo Court Plan

Brett Emison — Tue, 01 May 2012 14:42:09 GMT

Will Kraus is my state senator. I voted for Sen. Kraus in his contested primary where he defeated an incumbent who staunchly opposed justice issues.

Writing as a constituent, I am deeply disappointed. I thought Sen. Kraus would stand up for justice and independent courts. I thought Sen. Kraus would be different.

Ken Garten is another of Sen. Kraus' constituents. Ken wrote a piece in The Examiner voicing his disappointment as well. Ken mentioned that he had written Sen. Kraus to express his disappointment in Sen. Kraus' support of SJR 51 - a bill that effectively destroys the Missouri Non-Partisan Court Plan. Ken also published Sen. Kraus' response:

I can understand whey you all are very frustrated with my vote in committee. I can tell you I am frustrated when I hear judges award unemployment benefits to a person that falls asleep at work or a person that violently clears files off the top of a filing cabinet. I also question how the appellant [sic] judges draw two unconstitutional maps. Someone must question the current system when we have situations like I mentioned above. No system is perfect and we need to make improvements over time.

My door is always open,

Will Kraus

Before the floor vote on SJR 51, I also sent Sen. Kraus an email through his Senate web page. I never got a response.

But let's look at Sen. Kraus' response to Ken.

"I am frustrated when I hear judges award unemployment benefits to a person that falls asleep at work or a person that violently clears files off the top of a filing cabinet."

As Sen. Kraus surely knows, workers compensation is a "no fault" system of insurance compensation for workplace injuries. "No fault" means workers compensation benefits can be paid even if there is not negligence on the part of the employer. "No fault" compensation is a bargained-for benefit given in exchange for immunizing employers from tort liability and drastically reducing employers' potential liability for workplace injuries. Employers cannot be sued by employees. Employees receive much lower compensation awards under workers' compensation than they would under normal civil liability. In exchange, employers cover a broader array of injuries including those for which the employer was not necessarily negligent. This is not a frustration. This how the system was designed to work.

"I also question how the appellant [sic] judges draw two unconstitutional maps."

District maps are supposed to be drawn by legislators - not judges. You can find the House members on the redistricting committee here. Senate redistricting committee members can be found here. It's only when the legislators can't or won't do their job that appellate judges are forced to step and finish the job. As reported by St. Louis NPR last August, legislators gave up on redistricting and turned to a panel of judges to finish the job for them.

A commission tasked with redrawing State Senate districts in Missouri has thrown in the towel and will allow a panel of judges to do the job.

***

A six-judge panel will now redraw Missouri's State Senate map. Last week a similar commission failed to agree on redrawing Missouri's State House districts, which now will also be redrawn by a panel of judges.

So, it looks like Sen. Kraus doesn't really have anything to be frustrated about. But what if he did? How does destroying the Missouri Non-Partisan Court Plan with SJR 51 and replacing it with a politicized plan get better workers' compensation decisions or better legislative district maps? The simple - and obvious - answer is: It doesn't.

Numerous commentators have voiced their support for the Missouri Court Plan:

Ken Garten: Keep politics out of selecting judges [at The Examiner]

Judicial selection (Trying to undo the Missouri Plan) [Henry J. Waters III at the Columbia Tribune]

Keep politics out of Missouri judiciary [Kansas City Star]

It's not perfect, but Missouri Plan makes sense [Bruce Secrist at The Joplin Globe]

Campaign would politicize picking judges in Missouri [Cheryl Capages at the Springfield News-Leader]

Sen. Kraus has many constituents in his district. I know several of them contacted Sen. Kraus - as I did - specifically asking him to vote against SJR 51 and support the merit selection of judges through Missouri's Non-Partisan Court Plan. I don't know of any constituents asking Sen. Kraus to support SJR 51. I wonder: What was the tally? How many constituents asked Sen. Kraus to support SJR 51 and how many asked him to oppose it?

An independent judiciary - a judiciary free of undue political influence, cronyism, and special interests - is the cornerstone and linchpin for our constitutional freedoms. Our freedom and liberty are threatened If cases are influenced by special interests and political influence instead of simply the facts and the law.

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected.

What happens when the person violating your rights has a lobbying team? What happens when the person violating your rights has political influence? What happens when your rights might be affected not just by the constitution, but some political influence?

Sen. Kraus understands why many of his constituents "are very frustrated" with his vote. Other senators were tepid or outright contradictory in their support. One senator voted for SJR 51 only out of fear of "receiving a nuclear enema next year." Another voted for the bill even though he didn't "want a one-term governor to be able to pack the commission."

If the new plan has so many problems, why not keep the plan that works? Why not keep the plan drafted by Rush Limbaugh's grandfather? Why not keep the plan that takes politics out of the courtroom?

Follow @BrettEmison on Twitter.

Originally posted at InjuryBoard by Brett Emison