Immediate grief and long-term effects of unexpected death

In the legal field, we speak about death in technical terms that can feel very removed from personal tragedy.  The legal term for a car accident fatality is “wrongful death”. Court filings refer to your loved one as the “decedent”, and discuss “negligent actions” and “punitive damages.”

Because we are so accustomed to this legal language, it’s particularly touching to read a real, heartfelt story of a mother and daughter struggling with a Vancouver man’s unexpected death. He had stopped to help a stranded driver on I-205, and was fatally injured in a hit-and-run crash late last year.

A woman has lost her husband of 40 years. A daughter can never introduce her father to his first grandchild, due in April.  Their story of the aftermath of this car crash is moving, and their bravery in sharing their grief is inspiring. *

Violent, unexpected deaths have an effect that is impossible to calculate.

There is no right time to lose someone you love.

But if you have ever seen the aftermath of a fatal car crash, you can imagine that person’s death was very different from passing away in old age, surrounded by loved ones, free from pain.

There is a sense of unjustness: it’s not fair that someone else made a choice to drive drunk, to speed on an icy road, or to run a red light.

There’s nothing that the law can do to remedy this unfairness.

The solutions we do have— criminal and civil lawsuits — are necessary for order in society, because there must be consequences for bad or negligent acts.  But no lawsuit can undo what has happened, and no amount of money can replace someone you love: these are simply the only tools we have to try to compensate for loss.

For the family left behind, these lawsuits can be helpful—and sometimes, painful.

Criminal cases force survivors to recount the grim details of the worst day of their lives. Civil lawsuits have to be filed for survivors to get rightful insurance benefits. This added injustice could complicate the grieving process.

Death is always a shock whenever it happens…When it’s unexpected that can lead to some complicated grieving.

-Cory Bolkan, Washington State University, Vancouver

Bereavement groups can help people move forward, and manage some of the complex feelings that accompany a sudden death. It helps survivors to be with others who understand that grief and anger.

Last year alone, there were 39 traffic fatalities in Clark County, Washington. That’s twice as many as in 2013. That means hundreds more grieving spouses, children and parents, and many more friends, family members, neighbors and co-workers.

Survivor stories like the one told in The Columbian remind us that in every town, in every county in Washington, there are real people suffering from the consequences of someone else’s actions.

Remember this every time you get behind the wheel of a car: you are responsible for driving safely, and reducing the risk of harm for everyone else on the road. Your actions, deliberate or accidental, can have a terrible, life-changing affect on so many other people.

 

 

*Out of respect for the family, we will not post their names. You can read the article here: Survivors Deal with Complex Layers of Grief

You can’t focus: neuroscience explains the dangers of distracted driving

Imagine that you’re driving home from work, stopped in traffic. The light turns green, and you inch forward. The light turns red. Your phone pings with a text alert.

Do you grab your phone to check your messages?

When you’re behind the wheel, you know that your primary goal is to get from point A to point B safely. But you’re very busy, and it may feel like a waste of time to be stuck in traffic, or cruising down a familiar highway.

So you try to make the most of that time by responding to texts, or checking your email.

You’re not multitasking. You’re just not driving.

Neuroscientists, who study the brain and nervous system, have proven that you can’t focus your attention in two different directions.

Multitasking is an illusion. It is not possible for you to focus both on safely operating your vehicle, and on whatever is happening on your mobile device.

Daniel Levitin, a neuroscientist and author of The Organized Mind, says we suffer from information overload.  Our constant efforts to accomplish several things at the same time—in a word, multitask— increases the production of the stress hormones cortisol and adrenaline.

The result: your brain is regularly over-stimulated, and rarely focused. It’s much harder to pick out the useful information in a sea of noise.

Your brain behind the wheel

Think about the constant stream of information coming at you when you’re driving. Speed limit signs. Pedestrian crosswalks. Traffic signals. Cars in the opposite lane. Bikes speeding past you.

Damore Law Group Brain and Distracted Driving Accident Injuries 200x300 You cant focus: neuroscience explains the dangers of distracted driving

Identifying the useful information amidst all these moving parts is how you avoid running red lights, hitting pedestrians, or rear-ending the car in front of you.

Many car crashes occur when a driver is distracted—texting, talking, daydreaming—and misses a bit of this information.

The reality is that you can focus your attention on one very specific thing, not everything in your field of vision… Your attention is more like a laser than an overhead light.

-Matt Richtel, author of A Deadly Wandering (https://mattrichtel.wordpress.com/)

The easiest distraction

Cell phones are not the cause of distracted driving. They’re just the easiest distraction.

Our mobile devices constantly demand our attention. Dividing our attention between what’s happening in front of us and what’s happening on our phones is not only dangerously distracting, it causes more stress.

Daniel Levitin suggests setting times to disconnect yourself: just an hour or two a couple times a day wherein you set your device down and focus on something else.

So disconnect yourself while you’re driving. It’s good for your brain, and you’ll be a better and safer driver.

The attorneys at D’Amore Law Group feel very strongly about distracted driving. In order to raise awareness, they give presentations at many high school driver education courses in the Portland area throughout the year. These classes typically have about 50 students and their parents who attend.

For more on the research of distracted driving, visit EndDD.org (link  http://enddd.org/research-stats/ )

Photo courtesy of Naypong, freedigitalphotos.net

Does a car accident claim affect your insurance cost?

A new study says just one accident claim will cost you thousands

InsuranceQuotes.com hired researchers to answer this question. They created a hypothetical 45-year-old employed, married driver with no previous claims and got rates from 6 companies in all 50 states.

They found that, on average, making a claim on an insurance policy caused premiums to rise by more than 40%. The average annual cost of car insurance is $815. If you made one claim for $2000 in property damage, your annual bill would go up by about $335.

In some states—California and Massachusetts were the biggest offenders— your insurance premiums can nearly double after one accident claim. To make matters worse, most accident claims affect your car insurance for up to 5 years. Your total car insurance cost in that time: $6,000.

Insurance companies say one claim doesn’t hurt you

If you were in an accident that wasn’t your fault, your insurance rates should not be affected. It is worth noting that the insurance claims adjuster decides if you had any responsibility for the collision.

So what happens if you hit a parked car and make a $2000 claim for the property damage?

Several big insurance companies promote “accident forgiveness” in their advertising. It sounds good: an experienced driver with a clean record shouldn’t be gauged for car insurance after making one claim.

Car Insurance Accident Claims Make Premiums Rise DAmore Law 300x162 Does a car accident claim affect your insurance cost?

Liberty Mutual is running an ad campaign about accident forgiveness.

They don’t mention that you would need a premium insurance policy. Or that “accident forgiveness” adds another 10%  to your insurance cost. Or that “accident forgiveness” doesn’t mean they can’t drop you when your policy comes up for renewal.

This is incredibly frustrating for consumers. You pay your auto insurance dutifully for years, only to be gauged when you actually use the service for which you paid.

But even if your insurance company offers you “accident forgiveness”, your claim is going to cost you.

The infamous insurance company tactic:  Delay, Deny, Defend

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.