Oregon leading in enforcement of truck safety law

Among long-haul drivers and heavy truck operators, Oregon has an interesting distinction.

Oregon ranks #1 among states for enforcement of hours-of-service laws (HOS), meant to ensure truckers get adequate rest. Nearly 25% of all trucker tickets in the state are for HOS violations—compared to 9% nationally.

Hours-of-service rules as of July 2013*

  • An average work-week for truck drivers is capped at a maximum of 70 hours.
  • After 70 hours, drivers must rest for at least 34 consecutive hours.
  • Truck drivers must take a 30-minute driving break during the first 8 hours of a shift.

In 2013, Oregon issued 3 HOS violations for every 10 truck inspections.

How Oregon is keeping tabs on trucking safety

Oregon is one of only a few states with a weight and distance tax for heavy vehicles.

512px Weighing trucks 2 %283542971437%29 Oregon leading in enforcement of truck safety law

The data collected at weigh stations is used to calculate taxes—but it can also be used to verify a driver’s activities.

For example, if a semi-truck causes a fatal accident, weigh station data can be used ascertain the truck’s whereabouts prior to the crash. When an attorney investigates the crash, that information can help determine if the driver was speeding, or violated hours-of-service rules.

“Our daily goal is to reduce the number of truck-at-fault crashes …”

- David McKane, Oregon’s Department of Transportation

The Oregon Department of Transportation reports that HOS enforcement is a priority, because about 90% of at-fault truck accidents are caused by the driver.

And driver fatigue is a major cause of semi-truck accidents.

 

* Some safety measures in the current laws for truck drivers are about to change – see more on Legal Examiner: Congress undoing safety changes to hours-of-service rules

 

Photo By Oregon Department of Transportation (Weighing trucks 2Uploaded by Smallman12q) [CC BY 2.0], via Wikimedia Commons

How Wrongful Death Claims Work

“Wrongful death” is a legal term. It means a person died because of another person (or company’s) bad actions.

This type of lawsuit seeks compensation for the family members who suffer emotionally, psychologically and financially by the untimely death of a loved one.

A wrongful death case is a civil lawsuit, which is different from criminal charges. For example, if a drunk driver strikes and kills a pedestrian, the state can charge that driver with DUII and manslaughter. The pedestrian’s family could file a civil lawsuit for wrongful death.

The actions that lead to the death do not need to be deliberate, just negligent. If a doctor administers a patient the wrong drug, leading to that patient’s death, that could be a wrongful death claim.

 

Making a Wrongful Death Claim in Oregon

There is usually a time limit, or statute of limitations, for filing a lawsuit for a death.*

In Oregon, most wrongful death claims must be filed within three years of the injury that resulted in the victim’s death, and no more than three years after the date of death. This can vary, based on the type of injury the identity of the at-fault party, the age of the victim, and when the cause of the fatal injury was discovered.*

In order to make a wrongful death claim, an estate has to be opened with the court. Typically, a family member is appointed as the personal representative of the estate, and pursues the claim on behalf of the beneficiaries.

Generally, the spouse and/or children of the victim are the ones permitted to pursue a wrongful death claim. Sometimes, parents, grandparents, step-parents, and step-children can also be compensated.

It is crucial to file the legal paperwork to preserve and gather the necessary evidence very soon after the death.

In most cases, the victim’s family should contact a wrongful death attorney as soon as possible.

What are Wrongful Death Damages?

“Damages” are a monetary award paid to a person as compensation for a loss or an injury.

Many factors influence the calculation of wrongful death damages. These factors may include economic damages, such as:

  • The victim’s medical bills
  • Funeral expenses
  • Estimated lost future income

And “non-economic damages,” which would include:

  • Pain and suffering of the victim from the time of the accident until the time of death
  • Loss of care, protection, guidance, advice, training, and nurturing
  • Loss of companionship

In Oregon, there is a $500,000 limit on non-economic damages in a wrongful death claim.**

In some cases, “punitive damages” may be available to punish the defendant for extreme negligence or intentional bad behavior.

No wrongful death lawsuit can undo what has happened, or bring back your loved one. And no amount of money can make up for that loss: it is simply the only tool we have, under the law, to try to compensate for your loss.

 

*This is general information and may not apply to your situation: you should talk to an attorney about statutes of limitation.

**This limit does not apply to all personal injury cases, only wrongful death claims.

Too Close for Comfort: Nursing Home Residents Sometimes Abusive to Each Other

When we think of elder abuse, we usually associate it with family members and nursing home staff.

But an increase in resident-to resident aggressive encounters at residential facilities, and abusive or hostile behavior among nursing home residents is a growing problem.

According to a recent study by Cornell University-Weill Cornell Medical College, specific types of mistreatment that are common between residents include:

  • Verbal incidents, such as cursing, screaming or yelling at another resident
  • Physical incidents including hitting, kicking or biting
  • Sexual incidents, such as exposing one’s genitals, touching other residents or attempting to gain sexual favors
  • Unwelcome entry into another resident’s room or going through another resident’s possessions

This is the first study to directly observe and interview residents to determine the frequency and predictors of elder mistreatment between residents in nursing homes.

Interviews, facility reports, and a questionnaire taken by more than 2,000 residents and staff suggests that the individuals who are most likely to be involved in mistreatment incidents are younger, less cognitively and physically impaired, and more prone to disruptive behavior than fellow residents.

Those who typically engage in resident-on-resident nursing home abuse are somewhat cognitively disabled but physically capable of moving around the facility, according to the study. There was no significant difference between men and women, but African-Americans were less likely to be aggressive toward others than non-Latino white and Latino residents.

The Cornell study was funded by grants from the National Institute on Aging, the New York State Department of Health and the National Institute of Justice, and Jeanne Teresi, M.D., of the Hebrew Home for the Aged at Riverdale, New York was a collaborator.

Whistleblower’s Lawsuit Against Guardrail Company Nets $525 Million

A version of this post originally appeared on the Legal Examiner

You probably have never given much thought to the guardrails that line U.S. roads and highways.

They’re not just metal strips.

Guardrails are designed keep cars on the road during a collision, and to protect you if your car hits it head-on. The car’s energy should force the guardrail to flatten, and stop your vehicle.

DAmore Law Group Whistleblower Guardrail Trial Blog 1024x575 Whistleblower’s Lawsuit Against Guardrail Company Nets $525 Million

“I’ve got widows who have lost husbands. I’ve got mothers who have had their children butchered. I’ve got a Marine that cut both his legs off. Its unacceptable…”- Joshua Harmon

Joshua Harmon, a guardrail engineer, noticed a lot of highway guardrails were being crushed in collisions—many more than he would usually see in the course of his work.

He investigated, and found that many of those guardrails were new.

The guardrail heads were smaller than they used to be. Vehicles hitting those rails were sliced apart. People suffered catastrophic injuries.

Lawsuit claims that guardrail company defrauded the government

A few years ago, Trinity Industries, Inc.—a company that makes those guardrails, and sells them to the government—changed the guardrail design.

Trinity changed its design for the sole purpose of increasing profits.

Shaving off 1 inch of the guardrail head saved the company money in production; plus, the 4-inch guardrails heads are totally crushed in collisions (5-inch heads were repairable), forcing the purchase of new guardrails every time there is a collision.

Trinity was making money every time one of its guardrails injured or killed someone.

Trinity executives reported that the company had run tests using the new 4-inch design, and found it to be safe.

Yet, the company could not produce any record of its safety tests. It is uncertain if they ever tested the 4-inch design.

However, an email entered into trial evidence made it clear that Trinity executives knew the 1-inch guardrail change was purposefully concealed from the government.

In short: the Federal Highway Administration was paying millions to buy and replace a dangerous guardrail system that had never been approved.

Lawsuits say the guardrails were to blame for five deaths, and many more injuries, in at least 14 accidents nationwide.

Trinity found liable in False Claims lawsuit

In October,  a federal jury found in favor of Plaintiff Harmon.

Under the False Claims Act, anyone can be a “whistleblower,” reporting on companies defrauding the government of taxpayer dollars. The incentive is that the whistleblower plaintiff is entitled to a portion of the damages, which can be three times the amount of the original fraud. In this case, the final verdict of $175 million is tripled to $525 million, most of which would be paid to the federal government.

Trinity Industries, Inc. will undoubtedly appeal the verdict. But in the meantime, Trinity guardrails are on the roads in almost every state. 

The Oregon Department of Transportation has stopped the installation of any new Trinity guardrails, and is in the process of trying to locate those already in use on Oregon highways.

ODOT is now going over crash statistics to find whether the end terminals in question have been involved in crashes on Oregon highways and will determine whether they performed correctly.

Salem Statesman Journal: ODOT pulls guardrail brand from qualified products list

What to do if you see a hit-and-run accident

Many people feel as though they shouldn’t get involved after witnessing an accident. Causing an accident and leaving the scene is a crime: too often, the perpetrators go unpunished.

  1. Pull over immediately if you’re driving. Do not attempt to follow the fleeing vehicle.
  2. Call 9-1-1. Witnesses often assume that someone else is calling.
  3. Render aid, if you are able. Off-duty nurses, doctors, EMT and firemen have saved thousands of lives and limbs. Especially for pedestrian accidents, an injured person should be treated as soon as possible, but remember—do not move an injured victim carelessly.
  4. Check the scene for safety.
  • If a car appears to be leaking fluid, or there is smoke coming from the hood, leave the vehicles and get everyone back as far as possible.
  • Set up flares or help protect the victim from oncoming traffic.
  • If no one appears to be injured, the vehicles can be moved off the road to allow traffic through.
  1. Take notes: grab a pen or your phone, and record:
  • License plate number and state
  • Color
  • Vehicle make and model
  • Exact location, including cross streets
  • Time of the collision
  • Gather information from any other witnesses: names, addresses, and phone numbers. Not everyone will wait for police assistance to arrive, and the injured person may need this information to file a claim for injuries.
Hit and run accident Damore Law Group What to do if you see a hit and run accident

Set up flares around the crash site, and be careful of oncoming traffic.

  1. Stay at the scene of the crash until you have given a statement to a responding officer, and provided your notes and information for follow-up.

In Oregon, drivers, pedestrians or cyclists involved in a hit-and-run accident should file a report with Oregon Department of Transportation

In Washington, responding police officers file a report. If officers do not come to the scene, file a hit-and-run crash report.

California hit-and-run reports can be filed here.

 

 

 

 

Image courtesy of FeelArt, FreeDigitalPhotos.net

Stop telling sexual assault victims how they should have prevented it

This week, CNN reporter Don Lemon asked a woman who has accused comedian Bill Cosby of sexual assault if she could have avoided performing forced oral sex.

Damore Law Group Sexual Assault blog 1024x516 Stop telling sexual assault victims how they should have prevented it

Recently, the American Enterprise think tank suggested that women contribute to their own sexual assault by getting “seriously intoxicated.” A Slate writer suggested a similar “solution” to the epidemic of sexual assaults on college campuses.

And earlier this year, a company invented a nail polish that changes colors if the wearer has been exposed to a common date rape drug.

All of these strategies put the onus on victims to prevent sexual assaults.

Risk reduction does have a role in reducing the number of rapes, assaults and abuses committed. But it is not the solution. Worse, this line of conversation distracts from the real problem: the perpetrators.

To suggest that victims should have prevented their own assaults—as Don Lemon did in that interview—is to suggest that rapists only rape because the victim gave them the opportunity.

The onus of prevention is not on the victim. This is the same as blaming a homeowner for a home invasion because they didn’t have bars on the windows, or saying they deserved it for living in the wrong part of town. Instead of focusing our energy on trying to determine what the victim could have done differently, we need to focus on the perpetrators.

We need to focus on how to prevent rape and sexual assaults, and ensure these crimes are prosecuted when they do happen.

Telling survivors that they should have prevented the crime doesn’t help anyone.

 

 

Texting and Driving: Russian Roulette Behind the Wheel

Damore Law Group Texting and Driving e1415918044490 1024x701 Texting and Driving: Russian Roulette Behind the Wheel

This powerful short video, shared by our friends at EndDD.org, puts distracted driving in perspective in a mere 30 seconds.

Driving should be a singular activity. Every time you turn your attention away from the road, you are taking a chance.

Maybe we all need to think of texting while driving like holding a gun to our head.

 

Stages of a Personal Injury Lawsuit

Every person’s case is different: this is a general overview of D’Amore Law Group’s process for filing a lawsuit for damages.

A lawsuit is usually filed if once it is determined that your claim cannot be resolved through negotiation. See What to Expect: Stages of a Personal Injury Claim: you and your lawyer should discuss if filing a lawsuit is in your best interest.

1. The Complaint  

Your case will be detailed in a legal document known as a “Complaint,” The complaint is filed with the court.

You are the “plaintiff,” and the person or company responsible for your injuries is the “defendant.”

The defendant is provided with a summons, or notification, of the complaint. The defendant should must to the complaint by filing a court document known as an “answer.”

2. Discovery and Depositions  

When a defendant and his/her insurance company receive notice of the complaint, an insurance company attorney will step in to represent the defendant.

Then, the attorneys begin the process of “discovery,” which is the process of exchanging information and documentation about your claim.

You may be asked for documentation that you do not think is related, but your attorney may need it as part of the process of exchanging information.

There may also be recorded or videotaped statements taken from you, the defendant, and any important witnesses or other parties. These statements are known as “depositions,” and your attorney will help you prepare for yours. This is typically the only time the defense attorney gets to ask you questions, and can be a crucial step in the process.

3. Pretrial

Some courts require the plaintiff and defendant attempt to reach a settlement before moving forward with a trial. Often, a judge or neutral third-party reviews the case and meets with all parties to see if it can be settled by agreement.

4. Mediation, Arbitration, or Judicial Settlement Conference  

In a pretrial conference, a judge will meet with the attorneys and review schedules. The court selects a trial date, and a different judge may be assigned to hear the case.

Getting a court date can sometimes be a challenge due to court scheduling demands. As a result, it may be two to five years after your injury before you are granted a trial date.

5. Trial

Your lawyer will discuss trial preparation with you.

Only a small percentage of cases go to trial, and some will settle before or during the trial instead of going to verdict.

6. Disbursal and closing process

When your case is resolved, either by settlement or trial, your personal injury lawyer should prepare a full accounting of the funds and present it to you for review and approval.

The law firm will process payments—“disburse”—to your medical providers or other lien holders. Your attorney’s fees, and the costs the office advanced on your behalf, will be taken out of the settlement or verdict funds.

This process involves a lot of communication with insurance companies and providers. It can take several months to complete.

 

This is only an overview of the personal injury lawsuit process: your case may be different.

 

Understanding the Basics: Spinal Cord Injury

What is a Spinal Cord Injury?

The spinal cord is a soft bundle of nerve fibers and associated tissue running from the base of the brain down to the lower back. It is protected by the bones of your spine. It connects your brain to all parts of your body.

The spinal cord runs through the spinal canal: the tunnel formed by holes in the bones of the spine.

Any injury that damages these nerve fibers is a spinal cord injury (SCI).

Types of SCI

A spinal cord injury can cause permanent changes in strength, sensation, and body function below the site of the injury.

The ability to function varies among SCI survivors, depending on the location and severity of the trauma.

Cervical spine injuries affect vertebrae at the top of the spinal cord. Thoracic spine injuries affect middle vertebrae, lumbar spine injuries affect low vertebrae, and sacral injuries occur at the base of the spine.

DAmore Law Group Spinal Cord Injuries Basics video Understanding the Basics: Spinal Cord Injury

Short video from brainandspine.org explains levels of function in spinal cord injuries

Diagnosing SCI

Spinal cord injuries are caused by a trauma to the spinal cord.

Sports injuries, falls, and violence account for some, but nearly half of all spinal cord injuries are the result of car accidents.

Signs of SCI may include:

  • Severe back pain
  • Pressure in the neck, head, or back
  • Weakness or a sudden loss of coordination
  • Numbness, tingling, or loss of sensation in the hands, fingers, feet, or toes
  • Loss of bladder or bowel control
  • Difficulty breathing
  • Twisted or oddly-positioned neck or back

Anyone who has experienced significant trauma to the head or neck should seek immediate medical attention: the time between a spinal cord injury and treatment can significantly impact the potential for treatment.

If you suspect a spinal cord injury, do not move the patient unless it is an emergency. Wait for medical help to arrive to ensure the best outcome.

Hidden Cameras Lead to Arrests for Nursing Home Neglect

This post originally appeared in the Legal Examiner

17 nursing home employees were charged with neglect after hidden cameras recorded a shocking pattern of staff neglecting a 56-year-old Huntington’s disease patient.

During one month, eight nurses and nine nursing assistants failed to dispense the bedridden man’s pain medication, failed to provide liquids, failed to handle basic incontinence care, and sometimes, didn’t even bother to check on him.

The footage was at odds with the nursing home’s records; the staff routinely falsified their documents.

This is not an isolated incident.

Two employees of the nearby Erie County Medical Center’s skilled nursing facility were arrested in September.

Damore Law Group Nursing Home camera 300x288 Hidden Cameras Lead to Arrests for Nursing Home Neglect

Small, discreet cameras have made documenting nursing home neglect much easier

A hidden camera in the room of a nursing home patient suffering from Alzheimer’s disease and dementia revealed a pattern of neglect. The 79-year-old resident is non-ambulatory—totally dependent on nursing staff for basic care.

Two certified nurse aides violated the patient’s personal care plan by incorrectly performing incontinence care, and not using a mechanical lift to transfer the resident.

When they did use a mechanical lift, they violated protocol by using only one person to operate it.

The nursing staff then allegedly falsified documents to hide their neglect.

Relying on hidden cameras to catch nursing home abuse

The use of cameras to catch the perpetrators is very useful for prosecution. It’s also potentially a deterrent for future negligence: if nursing home assistants think they may be filmed, they are more likely to provide proper patient care.

But these cameras are also an intrusion into a patient’s privacy and dignity in an already intrusive situation.

Hidden cameras may be useful for catching nursing home abuse, but it’s a disgrace that they are necessary.

Image courtesy of Vichaya Kiatying-Angsulee, FreeDigitalPhotos.net