Greenville Personal Injury Lawyer

No Economic Incentive For Worker Safety?

Ric Davis — Fri, 25 Apr 2008 17:28:00 GMT

Economic incentives for worker safety are disappearing across the country. "Tort Reform" and workers compensation law reforms will continue to lead to devasting injuries as corporate america makes decisons soley based on economic reasons. Cases like the scaffolding deaths in Arkansas will fill our newspapers as the remanants of tort reform spread.

In Arkansas, two construction companies and a project supervisor were to blame for a scaffolding collapse that killed two men working above the Arkansas River. A lawsuit was filed Monday. According to the lawsuit, filed by the families of the men, Oscar Renda Contracting Inc., SAC Manufacturing Inc and foreman Charles Jackson knew that the work site was dangerous and failed to ensure that scaffolding was safe. The lawsuit seeks unspecified damages and medical, funeral and burial expenses. Schulyer Dixon, Houston Chronicle 04/21/2008.

Read more about this case: Houston Chronicle

Originally posted at InjuryBoard by Ric Davis

Safety of Construction Sites

Ric Davis — Thu, 24 Apr 2008 17:06:00 GMT

A New York building, under construction, where seven workers died after a crane collapse, violated multiple zoning regulations. According to local residents and politicians, the city buildings department ignored questions about the building's height long after it had already granted permits for the site. Complaints about the departments conduct are not limited to one building. So far this year, 13 fatalities have occurred at construction sites in the city, up from 12 in 2007. Charles V. Bagli and Diane Cardwell, The New York Times 04/22/2008.

Once again, safety was a secondary consideration.

Read the Article: The New York Times

Originally posted at InjuryBoard by Ric Davis

Employment Related Mandatory Arbitration Agreements Unfair

Ric Davis — Wed, 23 Apr 2008 15:59:00 GMT

The majority of employment related arbitration agreements put workers in the unenviable position of choosing between employment opportunities and constitutional rights to take lawbreaking employers to court. Due to such circumstances, almost everyone except big business generally opposes mandatory arbitration agreements.

Originally posted at InjuryBoard by Ric Davis

Maximum Weekly Workers Compensation Rate In South Carolina

Ric Davis — Tue, 22 Apr 2008 08:20:00 GMT

The South Carolina Employment Security Commission has certified that the average weekly wage in South Carolina for the period July 1, 2006 through June 30, 2007 was $661.29. Accordingly, for accidents that occur on or after January 1, 2008, the maximum weekly compensation rate, which according to Section 42-9-10 is to be "no more than the average weekly wage in this State for the preceding fiscal year," shall be $661.29.

This raises the maximum weekly compensation rate by $15.35, 2.4% greater than the 2007 rate of $645.94. An individual's compensation rate equals 66?% of an individual's average weekly wage, not to exceed the average weekly wage in South Carolina as determined by the South Carolina Employment Security Commission. In terms of total disability for 500 weeks, the maximum compensation award for 2008 will be $330,645. Generally, an individual must have earned $51,555 annually ($991.44 weekly) or more during the four quarters immediately preceding the quarter in which an accident occurs in order to be paid at the maximum compensation rate.

Compensations Rates Since 1978

1/1/08	$661.29
1/1/07	$645.94
1/1/06	$616.48
1/1/05	$592.56
1/1/04	$577.73
1/1/03	$563.55
1/1/02	$549.42
1/1/01	$532.77
1/1/00	$507.34
1/1/99	$483.47
1/1/98	$465.18
1/1/97	$450.62
1/1/96	$437.79
1/1/95	$422.48
1/1/94	$410.26
1/1/93	$393.06
1/1/92	$379.82
1/1/91	$364.37
1/1/90	$350.19
1/1/89	$334.87
1/1/88	$319.20
1/1/87	$308.24
1/1/86	$294.95
1/1/85	$287.02
1/1/84	$268.99
1/1/83	$254.38
1/1/82	$235.00
1/1/81	$216.00
1/1/80	$197.00
1/1/79	$185.00

Originally posted at InjuryBoard by Ric Davis

How to report an on-the-job injury?

Ric Davis — Mon, 21 Apr 2008 18:31:04 GMT

Report all injuries at work to your employer immediately and request medical treatment, if needed. If you neglect to report the injury within 90 days of the accident you may lose your benefits.

Although you must report the injury within 90 days, you have up to two years to file a claim for benefits. If a worker dies because of work-related injuries, the worker's dependents, or parents if there are no dependents, must file a claim within two years of the death to claim benefits.

Originally posted at InjuryBoard by Ric Davis

Frivolous Lawsuits?

Ric Davis — Mon, 21 Apr 2008 18:17:56 GMT

The "McDonald's coffee" case. We have all heard it: a woman spills McDonald's coffee, sues and gets $3 million. Here are the facts of this widely misreported case:

Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson's car having purchased a cup of McDonald's coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald's for $20,000. However, McDonald's refused to settle. The jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald's callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. According to Stella Liebeck's attorney, S. Reed Morgan, the jury heard the following evidence in the case:

By corporate specifications, McDonald's sells its coffee at 180 to 190 degrees Fahrenheit;
Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds;
Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years;
The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation;
McDonald's admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years -- the risk was brought to its attention through numerous other claims and suits, to no avail;
From 1982 to 1992, McDonald's coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;
Not only men and women, but also children and infants, have been burned by McDonald's scalding hot coffee, in some instances due to inadvertent spillage by McDonald's employees;
At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years;
Witnesses for McDonald's admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald's required temperature;
McDonald's admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;
McDonald's witnesses testified that it did not intend to turn down the heat -- As one witness put it: "No, there is no current plan to change the procedure that we're using in that regard right now;"
McDonald's admitted that its coffee is "not fit for consumption" when sold because it causes severe scalds if spilled or drunk;
Liebeck's treating physician testified that her injury was one of the worst scald burns he had ever seen.

Morgan, The Recorder, September 30, 1994. Moreover, the Shriner's Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.

In refusing to grant a new trial in the case, Judge Robert Scott called McDonald's behavior "callous." Moreover, "the day after the verdict, the news media documented that coffee at the McDonald's in Albuquerque [where Liebeck was burned] is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that], the margin of safety has been increased as a direct consequence of this verdict."

Originally posted at InjuryBoard by Ric Davis

Blood Thinner Heparin Intentionally Contaminated ?

Ric Davis — Thu, 17 Apr 2008 16:22:43 GMT

Another glaring example of why the drug industry and President Bush will lobby for pre-emption is found in recent developments with regard to a Baxter International drug. On April 15, 2008, the FDA announced that the blood thinner heparin, which has been associated with several deaths and allergic reactions, may have been intentionally contaminated in order to reduce the cost of the drug. The contaminated heparin was manufactured by Baxter International and is commonly used before certain types of surgery and during hemodialysis as a blood clotting preventative. If, indeed there has been intentional contamination, the drug industry will be seeking federal "drug company protection" form both the US Supreme Court and the Bush administration.

In addition, the FDA reported last week that there has been a substantial increase in the number of people who have died while taking the blood thinner. Its findings indicated that there have been 103 reports of heparin-associated deaths since January 1, 2007 and 91 of these were reported to the agency on or after January 1, 2008. Baxter and the FDA recalled several dosage types of heparin in February after receiving reports of adverse reactions including breathing difficulty, vomiting, excess sweating and a rapid decline in blood pressure. Baxter subsequently expanded the recall to include all remaining lots of its multi-dose, single dose and flush products. The Supreme Court may soon be granting immunity to the drug industry with preemption. If so, justice will be denied for many more innocent victims.

Originally posted at InjuryBoard by Ric Davis

FDA Warns About Fentanyl Again

Jenny Albano — Sat, 22 Dec 2007 17:45:00 GMT

The FDA warned, for the second time in two years, that improper use of the fentanyl patch, a painkiller, is still claiming lives. Some of the deaths were due to doctors prescribing the patch to the wrong patients.

The drug is supposed to be used for chronic pain for patients who are used to narcotics, but some doctors were prescribing the drug to patients with headaches or for post-surgery pain. Patients are also accidentally overdosing from the drug by using it incorrectly; some patients put on more than one patch, change them too often, or get them too hot.

The FDA first warned about improper use of the patches in 2005, when it announced it was investigating 120 deaths among users. The agency didn't immediately say how many more deaths it had learned of since that warning. But the FDA said Friday it had ordered makers of all fentanyl patches to create special "medication guides" for patients that spell out the dangers of overdoses and improper use in easy-to-understand language.

Some of the warning include: the patch can cause trouble breathing, the patch is only for round-the-clock moderate to severe pain, the patch should not be the first narcotic a patient takes, do not do anything that would increase your heat, etc.

For more information on this subject, please refer to our section on FDA and Prescription Drugs.

Originally posted at InjuryBoard by Jenny Albano

Health Courts?

Ric Davis — Fri, 14 Sep 2007 12:01:57 GMT

The following is an interesting article from Lawyers Weekly on Health Courts. Should medical malpractice claims be decided by an administrator in the medical profession? Should the injured patients' remedies be capped and limited in the interest of economic expediency? You decide............

Doctors and tort reformers are pushing legislation in both houses of Congress to fund pilot projects in 10 states that would create administrative panels known as "health courts." The legislation -- which is intended to mend perceived flaws in the medical malpractice system -- is based on existing systems in Scandinavia and New Zealand as well as administrative programs in Florida and Virginia for dealing with birth-related neurological injuries.

The features shared by these programs include:

* No juries.

* All decisions made by specialized judges in consultation with a panel of experts.

* "Avoidability" -- not negligence -- is the standard patients must meet in making claims against health-care providers.

* Damage schedules specify value ranges for specific kinds of injuries, much like those employed by state workers' compensation panels.

"There's a potential with this new approach to enhance patient safety, to be more predictable for health-care providers and patients alike, and to be more efficient in how resources are allocated," said Paul J. Barringer III, general counsel for Common Good, the bipartisan legal reform group that is a primary backer of the legislation.

"Also, we believe it will put more money in the pockets of patients," he said.

Common Good was founded by New York City lawyer Phillip Howard, best known as the author of "The Death of Common Sense." Its membership spans the political spectrum from Bill Bradley to Newt Gingrich.

The identical bills, known as the Fair and Reliable Medical Justice Act, were introduced in Congress in May and both have bipartisan sponsorship.

But health courts have also drawn criticism on constitutional grounds.

"The Bill of Rights includes specific, articulated rights for citizens to have their disputes resolved in court," said Cheryl Niro, executive director of the Illinois Supreme Court's Commission on Professionalism and a member of the American Bar Association's Standing Committee on Medical Professional Liability. "What this bill does is create an alternative to the court."

Barringer said that health-court legislation has been introduced in Maryland, Massachusetts, New York and Pennsylvania. There is also interest percolating in several other states, including Colorado, Wisconsin, Wyoming -- and South Carolina.

Do Modifications Go Far Enough?

Similar bills were introduced in 2006 but were modified and reintroduced this year following intense scrutiny during Congressional hearings. Niro testified at those hearings and believes that the criticisms improved the current version.

"Some of the most onerous aspects of the last proposal have been softened," she said, noting the previous version's "no-sue" requirement has been replaced by an opt-out clause stating that patients may "voluntarily withdraw from participating" in the program.

Even so, Niro argues that the opt-out clause doesn't go far enough because it makes no mention of the right to a trial by jury.

Michael S. Greco, immediate past president of the ABA, criticized the 2006 version on constitutional grounds and said his opinion remains unchanged.

"Essentially, what I said then still holds," he said. "Even if it's voluntary, there are still problems. We're talking about [patients] who, without a lawyer, aren't sophisticated enough to know they're giving up their rights. And for more sophisticated people, there's pressure to give up their rights."

Another modification in the current bill is an expansion of the review panel membership. In the old version, the review panel was made up entirely of health-care professionals. The current bill calls for the panel to include lawyers with experience representing patients and health-care providers, patient advocates, medical-malpractice insurers, state officials and patient safety experts.

The old version prohibited the use of experts by patients and, although that prohibition is absent in the new bill, it does not specify that such experts are allowed.

Building A 'Safety Culture'

The bills are intended to address two problems -- medical malpractice insurance rates for doctors and escalating health care costs due to the practice of "defensive medicine."

"Physicians are ordering tests or even procedures that are not medically necessary or appropriate because they don't want to sit in court two years from now and answer 'Why didn't you give the MRI?'" said Dr. Alan C. Woodward, who practices at Emerson Hospital in Concord, Mass.

Last year, the Harvard School of Public Health issued a report concluding that health courts are worth a try -- at least on a pilot basis. The report -- Health Courts and Accountability for Patient Safety -- was published in the Milbank Quarterly.

"Plaintiffs' attorneys wonder whether the tort system's corrective-justice function can be served equally well by an alternative that does not lay blame and shame on individual physicians," wrote Harvard professor Michelle M. Mello, chief author of the article.

Supporters say health courts would boost patient safety efforts and prevent injuries by removing the threat of litigation and opening the door for doctors to talk honestly about what went wrong. They contend that if the courts track medical errors, the medical community could evaluate new preventive measures.

"I think patient safety would be a good driver for this system," said Allen Kachalia, an internist at Brigham & Women's Hospital in Boston and one of the authors of the Harvard study. "If it makes it easier for the patient to file claims, then we can do a better job of reporting injuries, [and with that] we can build a database and then learn where errors are occurring."

Barringer, of Common Good, argues that there's already evidence that health courts work.

"We know, for example, in the Scandinavian systems, that the administrative compensation systems typically compensate patients in well under a year," he said.

Niro counters that America and Scandinavia is an apples-to-oranges comparison "because those nations have health and welfare benefits that are paid for by their governments before consideration of the injury claim takes place."

Greco, a partner in the Boston firm K&L Gates, said the quick payouts may come at the expense of a fair resolution.

"One of the carrots here is the claim that there's a quick path to getting an award," he said. "But that's at the expense of the integrity of the award. It's like saying, 'We're giving you peanuts, but you'll be getting them fast.'"

Unfounded Fears?

One of the prime arguments in favor of health courts is that juries lack the knowledge needed to resolve medical negligence claims fairly.

Philip G. Peters Jr., a professor at the University of Missouri School of Law, recently completed a study that refutes this contention. After examining three decades of studies on jury decisions in medical malpractice cases, he concluded that juries actually perform very well. Reporting his findings in a recent issue of the Michigan Law Review, Peters found that in cases with weak evidence -- the category that most worries critics of malpractice litigation -- juries agreed with the assessments of expert reviewers nearly 90 percent of the time. He also found that juries overwhelmingly favor defendant doctors, even in cases where the evidence against them is strong.

"Doctors simply don't trust lay people deciding their fate," he said. "They want peer review. In addition, they don't trust any outcome produced by the adversarial process, which they see as a search for angles, rather than a search for the truth."

Although doctors have legitimate concerns about skyrocketing malpractice insurance premiums, the focus of their dissatisfaction is misplaced, according to Robert L. Sachs Jr., a plaintiff's med-mal lawyer in Philadelphia.

"Filings [of med-mal suits] have been down for years," he said. "You'd think that would reflect itself in lower premiums, but it hasn't."

In fact, direct losses paid per doctor dropped 30 percent from 2000 to 2005, while insurance premiums per doctor rose 32 percent, according to an analysis performed by Americans for Insurance Reform released this spring.

"The question remains: Why health courts?" Greco said. "What's the point? Are we saying that courts are bungling this? I doubt it. I think it's more likely that some interest groups are trying to limit people's rights for their own gain."

Niro agrees.

"There's no question that the current system has issues that make us question whether it's working as well as it could," she said. "But there are sound constitutional alternatives that exist now: arbitration, mediation, and settlement conferences, all of which are appropriate means of alternative dispute resolution."

Editor's note: Freelance writer Amy Johnson Conner contributed to this article.

For more information on this subject matter, please refer to the section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Ric Davis

In-home nurses get workers compensation benefits for car accidents

Ric Davis — Fri, 07 Sep 2007 11:56:01 GMT

Two nurses could collect workers compensation benefits for separate auto accidents that happened while they were driving to see housebound patients -- even though they weren't paid mileage for the trips, the Workers' Compensation Commission has ruled.

Commissioners said the claims were compensable despite the going and coming rule because car travel was a necessary, essential and integral part of the claimants' jobs as home health nurses. The accident in Manley v. Maxim Healthcare Services (South Carolina Lawyers Weekly No. 020-005-07, 12 pages) occurred while the claimant was traveling from the home of one patient to the next.

The nurse in the second case, Williams v. Prestige Home Support and Home Health Care (South Carolina Lawyers Weekly No. 020-004-07, 34 pages), was injured when her car collided with stray cattle while she was driving to her first appointment of the day.

Appellate panels in both matters adopted orders from the single commissioners who heard the cases and awarded benefits. The decisions are significant because they show the commission's willingness to find accidents to be within the scope of employment, even where claimants were arguably on their way to work and weren't expressly compensated for travel time.

Greenville lawyer Richard V. "Ric" Davis, who represented the Manley claimant, said the availability of comp for home health nurses injured in transit remains an unsettled question at the appellate level. "I'm surprised that there hasn't been a decision at the Supreme Court on this issue," Davis told Lawyers Weekly.

He said the commission's rulings have acknowledged that benefits are appropriate in such cases because driving is implicit in the nurses' job description, similar to that of a traveling salesman.

"The essential element that makes the cases compensable -- which the commission has recognized even in a very conservative environment -- is that travel is an essential element of this job. You can't ignore that factor because that's part of the risk of the employment. This job can't be performed unless the employee travels to the homes," Davis said.

The claimant's attorney in Williams, Stephen J. Wukela of Florence, agreed.

"I think what the commissioner properly found was that accidents with traveling nurses -- as with traveling salesmen, truck drivers and all types of traveling employees where the work creates the necessity for the travel -- arise out of the course of employment," Wukela said.

He said the employer has appealed his client's case to Circuit Court.

The two comp awards stand in apparent opposition to appellate rulings in North Carolina, whose comp system served as the model for South Carolina's.

The N.C. Industrial Commission has denied claims from home health nurses based on the going and coming rule after a decision from that state's Appeals Court in Hunt v. Tender Loving Care Home Care Agency, 569 S.E.2d 675 (2002).

Manley Case

Deborah Manley was injured in a car wreck on June 9, 2006, while she was driving from the home of one patient to see the next patient on her schedule.

The accident happened when another driver crossed the center line and hit the claimant's car head on. She suffered injuries to her left shoulder, arms, hands and neck. The claimant has not worked since the accident.

Commissioner G. Bryan Lyndon awarded benefits.

"I find as a fact that travel between the homes of two patients, if uninterrupted by a substantial deviation, is deemed to be within the course and scope of the employment," Commissioner Lyndon wrote.

He said that travel was a necessary part of the claimant's employment, even though she was not paid for time spent in transit.

"Once the claimant reported for work at the home of her first patient, she was effectively 'on the clock,' and the fact that she had to travel to another location before she would be paid for additional work time does not remove her from the course and scope of employment," the order states.

Davis, the claimant's lawyer, said a few distinguishing factors made his client's case easier.

"She was traveling between patient A and patient B when the accident happened. Had she been going back to her home from patient A's house, I think the employer's argument would have been stronger, though I still think that the commission would have said this is a case where the transportation is such an integral part of the job that it doesn't fall within the going and coming rule," Davis said.

Williams Case

On Jan. 12, 2006, Pearl C. Williams was driving from her home in Effingham to see her first patient of the day in Mullins, nearly an hour away. On her way, the claimant hit some cows that had wandered onto the highway.

The wreck caused injuries to her neck; her right shoulder, arm, hand, hip, knee and leg; and her left knee. She also suffered psychological problems, including nightmares about cows, according to the single commissioner's order.

Commissioner Andrea Pope Roche rejected the employer's argument that the going and coming rule barred compensation.

"I find that the claimant was a home health care nurse, that the very nature of home health care is to provide mobile nursing assistance, and that her travel to [the patient's] house was a necessary and integral part of the defendant's business and claimant's employment," Commissioner Roche wrote.

She further found that the claimant had received a raise in part to compensate her for traveling longer distances -- even though the employer said she would have gotten a raise regardless.

"Even assuming she was not paid by the employer for her travel, the employer admits specifically that the claimant's work, and indeed the work of all the employer's traveling nurses, created the necessity for travel. Without travel to the home of a patient, there can be no at-home nursing care," the order states.

Since travel was a necessity of the job, her accident was within the course of the claimant's employment, the single commissioner said.

As published in Lawyers Weekly.

For more information on this subject matter, please refer to the section on Workers Compensation.

Originally posted at InjuryBoard by Ric Davis