Oregon has a backlog of 5,000 untested sexual assault kits- and it’s a huge problem

Reporting a sexual assault can be nearly as traumatic as the event itself.

Victims are advised to seek immediate medical help. They spend hours after the assault at the hospital, completing an invasive medical examination and a sexual assault kit (commonly known as a rape kit). The rape kit is sent to police.

Earlier this year, Oregon State Police asked every local police department to count the number of sexual assault kits being held in police evidence rooms.

What they found is shocking: more than 5,000 sexual assault kits were never sent to a lab for testing.

The Portland Police Bureau holds almost half of those kits. Washington County, Gresham and Salem police departments all have hundreds of untested kits.

KGW_Rape_Kit_Investigation_Portland_Oregon_Damore_Law

KGW News found that 61% of the rape kits collected in Portland were never sent to a lab.

Even when rape kits do get sent to the Oregon Crime Lab, there’s a huge backlog.

More than 1,150 DNA samples, from both violent crimes and property offenses, are already at the lab, waiting to be processed by the state’s forensic scientists. Oregon State Police Superintendent Richard Evans, Jr. says the state crime lab in Clackamas is already working at capacity.

How did the rape kit backlog happen?

Quite simply, there are very few laws or rules about when or how rape kits should be tested.

In most police departments, it’s up to the sexual assault detective or police officers. They can decide to send a rape kit to the lab for processing—or they can let it sit in the evidence room indefinitely.

An officer might not send the kit to the lab if a sexual assault suspect has already been identified and confessed. The victim might decide against pressing charges. The prosecutor might not think the lab results necessary for a criminal case.

Or the officer just doesn’t believe the victim.

Sometimes we let our personal opinions get in the way, ” –Salem Deputy Police Chief Steve Bellshaw at Oregon Senate hearing

And if that discretion given to individual police officers is troubling, then the utter failure of basic investigation is truly disturbing.

Because most rapists are repeat offenders.

Studies have shown that rape is rarely an isolated incident. More than half of rapists have multiple victims: on average, 5.8 victims per rapist.

When a rape kit isn’t tested, the DNA evidence doesn’t get entered into the Combined DNA Index System (CODIS).

If Oregon had tested even half of the 5,000 rape kits, thousands of potential attackers would have been entered into CODIS.

How many sexual assaults might have been prevented?

Even in cases where the rapist was already identified, or confessed, entering the DNA evidence in the database might have solved a previous crime.

I probably in 1993 should have sent those kits in to be tested (even if a suspect confessed) because my kit could have solved an unknown kit in another jurisdiction.” – Salem Deputy Police Chief Bellshaw

Yet, Oregon has failed to make rape kit testing a priority.

How can Oregon solve this problem?

Funding is the biggest issue most jurisdictions face in breaking through the rape kit backlog. Oregon, and specifically Portland, will likely need more resources to test 5,000 sexual assault kits.

Oregon state legislature approved funding for adding two more forensic scientists at the state lab to help address the backlog. Police, prosecutors, and victim advocates are forming a work group to establish a model policy for getting the rape kits tested, and notifying victims of DNA matches.

While the Oregon State police voluntarily started a count of untested kits, there is no legislation to force them to do so, and no provisions for future rape kit testing.

Progress is being made— but the plans are vague, and no deadlines have been set.

This is cold comfort for survivors whose sexual assaults might have been prevented. But perhaps it’s the start of changes we need to break the cycle—and give rape survivors the justice they deserve.

 

New Oregon law allows speed cameras on Portland’s High Crash Corridors

Starting in January 2016, speeding drivers may be more likely to get a ticket in Portland, Oregon.

Traffic cameras are set up along streets to catch drivers breaking traffic laws: usually running red lights, or the exceeding speed limits. Radar detects the violation, and uses automatic number plate recognition to send a traffic ticket to the vehicle’s registered owner.

High_Crash_Photo_Radar_Speed_Sign

Streets with speed cameras must have enforcement signs, and show you car’s current rate of speed according to the radar.

Last week, Oregon Governor Kate Brown signed Oregon House Bill 2621 into law. The new law allows the city of Portland to use traffic cameras for speed enforcement on streets with high rates of crashes resulting in serious injuries or fatalities.

Nearly a dozen Oregon cities, including Portland, already use photo radar for speed limit enforcement. But as of January, Portland will be exempt from the restrictions of the current law.

Current law:  Speed cameras can only operate for four hours per day in one location. A police officer must be present.

New law: Portland’s speed cameras can run 24 hours a day in fixed locations. Police do NOT need to be present.

Radar aimed at high-crash corridors

If it works as planned, the speed camera program could have a real effect on Portland’s traffic safety problems.

Under the current law, Portland’s radar vans have been issuing record numbers of traffic tickets. Last year, they sent out 33,486 speeding tickets—all of them to drivers travelling at least 11 mph over the speed limit.

Under the new law, cameras will be used on Portland’s “high-crash corridors”: the 10 streets that account for 50% of pedestrian deaths, and 36% of all of traffic deaths in the city.  Vehicle speed is one of the biggest indicators of the likelihood of injury or death in a crash.

DLG_Portland_Car_Crash_Map

Division Street, Burnside Street, and SE Powell are among the most dangerous streets for cyclists and pedestrians.

Police intend to start with 10-20 speed cameras along the high-crash corridors. Drivers will either slow down to avoid a citation – or more speeding tickets will be issued, generating more revenue for the city to improve traffic safety.

The new law correlates to Portland’s adoption of “Vision Zero,” a traffic safety project with the goal of reducing traffic fatalities down to zero. See  “Vision Zero”: there’s a big hole in the plan to eliminate Portland traffic deaths.

 

Long road to justice: a jury trial verdict for client injured on construction site

It’s been nearly five years since Charles Pamplin’s foot was crushed in a construction site accident.

Charles was a welder with 30 years experience when he was contracted to work on a Clark County, Washington construction site. The project was massive: assembling a new oil rig for BP.

Construction_site_oil_rig_Vancouver_Washington_Damore_Law

Scaffolding covered the oil rig construction site. Our client was seriously injured when a dangerous, unsecured scaffold collapsed under his feet.

A dangerous construction site and a scaffold failure

Charles had been working on the Vancouver, Washington construction site for a month when the scaffolding he was working on toppled over.

He tried to jump from the falling scaffold, and landed on his heel. Charles’ foot was shattered. He laid on the ground for over an hour before anyone on the job site called 9-1-1.

Collapsed_Scaffolding_Construction_Site_Injury_Trial_DAmore_Law

The 11-foot unsecured scaffold collapsed on the Vancouver, Washington construction site.

Safway Corporation had just a few workers in charge of erecting, inspecting and dismantling nearly 100 scaffolds.

No one had secured the scaffolding to the structure.

There were no safety or warning signs to prevent workers from using it.

The handful of construction site workers who managed the scaffolding had left for the day without completing their jobs.

Incomplete scaffolding – or any other short-cut taken on a construction site – puts workers in danger.”

This was an enormous construction project. There is absolutely no excuse for a safety lapse of this magnitude.

Justice from the jury

Charles is now 51 years old. His foot injury is permanent and debilitating. His welding career is over. His entire life has changed—and all of this could have been prevented if scaffolding had simply been built and secured correctly.

Still, the companies in charge of the work site refused to take responsibility.

Charles chose to go to trial.

After the six-day trial in Clark County, the jury deliberated for just a few hours. They awarded Charles $947,180 for the construction site accident.

Charles hopes that the verdict will send a message to huge construction companies: there are real consequences to endangering your workers’ lives and livelihoods.

Thanks to D’Amore Law Group attorney Doug Oh-Keith and paralegal Dan Doede, as well as co-counsel attorney Greg Price, for their hard work on Pamplin v. Safway et al.

 

See more photos and additional coverage of this case in the Oregonian: Clark County jury awards Louisiana welder $950,000 after scaffold collapse

 

 

One of the worst cases of medical malpractice in U.S. history – Part 2

This is a continuation from the most recent blog post below…

What about the hospital system that he worked for, or the drug companies that sourced his practice?

The volume of patients was beyond excessive. Fata reportedly lined up 50-60 patients a day, whom he would hand off to unlicensed doctors before spending a few minutes with each at the end of the appointment.

One medical journal editorial posited this theory: Fata was simply so profitable that no one wanted to ask questions.

By the time Fata was arrested, his practice was purchasing about $45 million worth of drugs annually for a staff of three doctors. The average drug buy for one full-time oncologist is between $1.5 and 1.9 million a year.

As of now, there are no reports that any other person in Fata’s practice or hospital system has been charged with a crime.

What about the patients? Did anyone seek a second opinion, or question the treatment?

Most ethical medical professionals would urge anyone diagnosed with a fatal illness to seek a second opinion … unless there is dire urgency.

At least some Fata patients who asked for a referral for a second opinion were told that it was imperative to begin aggressive treatments immediately. Second opinions would cause delay, hurting the chances of recovery.

The daughter of one of Fata’s deceased patients stated at the sentencing hearing:

Several times when I had researched and questioned his treatment, he asked if I had fellowshipped at Sloan Kettering like he had.”

This cringing statement shows how Fata used his position to degrade or belittle anyone who questioned his treatments.

The harsh reality of medical malpractice lawsuits 

My firm, D’Amore Law Group, gets dozens of questions every week about potential medical malpractice claims. 

Any one of these patients, individually, would have a hard time proving a case against Fata.

Cancer treatments are based on medical opinions, which are often just that: opinions.

While there are accepted best practices for treatments, a doctor deviating from those practices may not, by itself, be considered “medical malpractice.”

No one patient, alone, could have stopped him.

The good news, if there is any in this case, is that the civil justice system may help get justice for the victims. There are at least 40 civil cases for medical malpractice pending against Fata—and probably against the hospital that enabled his crimes.

However, lawyers representing Fata’s victims say that the potential recovery available for these people, some of whom endured years of unnecessary and painful chemotherapy, is relatively low. Michigan has a medical malpractice cap of $450,000 for punitive damages such as pain and suffering.

One of the worst cases of medical malpractice in U.S. history – Part 1

Dr. Farid Fata was considered the gold standard of cancer physicians.

A Sloan-Kettering-trained oncologist and hematologist, he ran Michigan’s largest private cancer practice in several upscale suburban offices.

He claimed a 70% cure rate for blood cancer patients. Many thought of him as a savior.

Dr. Fata used his reputation and his power in a vile insurance scheme. He became a multi-millionaire by poisoning his patients.

More than 500 patients were given unnecessary chemotherapy.

  • Some of Fata’s patients were falsely diagnosed, or misdiagnosed, with blood cancers.
  • Some patients did have cancer- but were purposefully treated for the wrong cancer.
  • Some were massively over-treated: given more expensive and harsh chemotherapy than was necessary.

These weren’t mistakes or subjective errors in medical treatment. At least 553 patients received medically unnecessary infusions or injections, according to federal prosecutors.

In response to specific charges, Fata admitted in court:  “I knew it was medically unnecessary.”

Solving the mysteries of a massive medical malpractice scheme

The scope of this case is shocking. It raises so many questions.

The sentencing hearing answered some, but not nearly all, of the mysteries of this massive medical malpractice case. We can only guess at the rest.

Why would a doctor poison hundreds of patients?

The short answer: money.

Dr. Fata pleaded guilty to multiple charges of Medicare fraud—Medicare and private insurance billing is how he amassed a $17.6 million fortune.

He was sentenced to 45 years in federal prison for what U.S. Attorney Barbara McQuade called this “the most egregious case of Medicare fraud we have seen.”

Fata’s office was administering cancer treatments to hundreds of patients who didn’t need them—and billing Medicare.

He would do things like use IV drips instead of injections because he could bill Medicare more for longer treatments. One patient received 260 weeks of chemotherapy where he should only have received 24. He would also refer patients to therapy and hospice facilities that gave him kickbacks for his referrals.

Medicare, unlike private insurers, was forced to use a “pay and chase” strategy when it was implemented. In other words, Medicare rules mandated that the payment to the doctor comes first, and any treatment auditing or recovery comes second.

Incidentally, under the Affordable Care Act, the Centers for Medicare and Medicaid Services (CMS) have new tools to curb fraud and abuse in Medicare.

How did Fata get away with this for so long?

No one stopped him.

There’s no medical police to catch corruption. It usually takes a whistleblower, in the form of a patient or medical professional.

In the end, it was another doctor in the practice who uncovered and reported Fata’s malpractice. The whistleblowing doctor found a patient receiving treatment without actual diagnosis of cancer. He pulled the patients’ record—and found nothing to support the cancer diagnosis. He alerted a practice manager, who contacted the FBI. Fata was arrested a week later.

An oncology nurse had previously filed a complaint, but to no avail. She didn’t even work for Fata, but had come in to interview for a job. The improper mixing of chemotherapy drugs and mistreatment of patients horrified her, and she left after touring the treatment facility. A year after she filed a complaint with the state, she was told there was no substantiation of violations.

I feel this physician is doing more harm than good to his patients and needs to be investigated by the State, OSHA [Occupational Health and Safety Administration], Medicare, and BCBS [Blue Cross Blue Shield].”

Fata headed the largest private cancer practice in Michigan. There had to be a staff of dozens of doctors, interns, nurses and medical assistants.

But only two people ever identified Fata’s ongoing malpractice?

That is unbelievable.

Indeed, one member of Fata’s staff told reporters at the sentencing hearing that Dr. Fata asked her to falsify records and delay scans for patients at other facilities so the scans could be performed and billed at his own clinic. She clearly knew this to be wrong.

How states are distracting drivers – with warnings about distracted driving

“Your OMGs and LOLs can wait”

“Steering wheel: Not a hands free device”

“Get your head out of your apps and drive safely”

Most states have installed electronic message signs above highways to warn motorists of bad weather or traffic conditions ahead. Now some states are experimenting with the signs, using them for general safety or distracted driving messages.

Damore_Law_Group_Distracted_Driving_Sign

The Massachusetts Department of Transportation ran a successful social media contest for new safety slogans on distracted driving, road rage, and seat belt use.

Missouri – one of the few states that hasn’t passed a law banning texting while driving – reports a positive public response to their sign campaign, with messages like “TEXTING WHILE DRIVING? OH CELL NO.”

Utah is the latest state to take distracted driving messages directly to the highways. So far, the state reports mostly positive responses from drivers … except for complaints that the messages are distracting.

Roadside Distractions

These state governments are taking a cue from private companies that have effectively used roadside billboard advertising for decades.

In the last few years, roadside ads have started to transition to electronic billboards with big, rotating advertisements. Oregon, for example, has permitted these digital billboards along state roads since 2011.

The sole purpose of these digital billboards is to get a drivers’ attention – distracting them from the road.  This must be working, as companies often pay millions of dollars for them.

So digital advertising billboards are distracting. But the state’s electronic traffic message signs? Those are actually more distracting than the ads.

Digital ads are usually large images: your brain can process pictures in just 13 milliseconds.

But traffic signs often have long messages. Processing words takes much longer than images.

Any distraction of over two seconds increases the risk of a car crash. Drivers often can’t read long messages in less than two seconds, or without slowing down. See: Neuroscience Explains the Danger of Distracted Driving

What do drivers need to know, right now?

There is no evidence that signs, catchy jingles, or ‘y’all drive safely out there’ messages do anything to change driver behavior.”

Russ Rader, spokesperson for the Insurance Institute for Highway Safety

Damore_Law_Group_Billboard_Amber_Alert

It may be worth distracting a driver to warn them about a missing child, or an accident ahead.

Electronic highway signs do serve a genuine purpose for the state. They are often used for Amber Alerts for missing children, traffic accidents ahead, or severe storm warnings. All of these are immediately relevant messages that may be worth the risk of distraction.

But is it worth distracting a driver with a message warning them about distracted driving – especially if there’s no evidence that they work?

We may learn from Massachusetts, Utah, and other states’ experiments. In the meantime, keep your eyes on the road.

 

Images:

By Thomas R Machnitzki (thomas@machnitzki.com) (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons

By Bob Bobster from Honolulu, Hawaii (Amber Alert) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

“We could prevent 4,000 amputations a year”: fighting for table saw safety in Washington, D.C.

Table saws are by far the most dangerous tools commonly used in schools.

About 40,000 table saw injuries are treated in U.S. emergency rooms every year—including 4,000 amputations.

There is a simple piece of equipment that could prevent virtually 100% of these serious injuries from spinning table saw blades.

A simple saw safety feature

Nearly 15 years ago, Oregon woodworker and patent attorney Steve Gass invented SawStop: the first version of “active injury mitigation” (AIM).

It’s a brake that causes a saw blade to stop in just five milliseconds upon contact with human skin.

This AIM technology is simple and relatively inexpensive. It should be a standard safety feature on every table saw sold in the U.S.

But the power tool industry has been fighting it for years.

Now the victims of these preventable injuries are fighting back.

Consumer protections for table saws

On June 24, safety advocates and a table saw injury victim met with the U.S. Consumer Product Safety Commission (CPSC) in Washington, D.C.

That injury victim: D’Amore Law Group client Joshua Ward.

Josh Ward

Josh Ward and leaders from the National Consumers League, a group that’s been fighting for table saw safety for over a decade

Josh sustained three severed fingers, and several broken bones, from an unsafe table saw in his high school shop class. Since then, Josh’s life has completely changed. He has endured seven surgeries, multiple infections, and will never have full use of his right hand.

He asked CPSC commissioners to enact a table saw safety standard that uses the available AIM technology to prevent the injuries like his.

CPSC has known about safe table saw technology for over ten years – it is time for the agency to enact a safety standard” -Joshua Ward

D’Amore Law Group founder Tom D’Amore accompanied Ward to the CPSC meetings. D’Amore says that the CPSC safety standards are particularly important because so many old saws without the table saw safety guard- are still used in schools and businesses.

Except, he notes, for the Oregon high school where Ward was injured. They upgraded the school’s table saw safety technology just a few weeks after Josh lost his fingers.

 

For more information on table saw safety, see Striving for a Safer Table Sawan NPR series that has been following the table saw safety issue since 2004. 

“Vision Zero”: there’s a big hole in the plan to eliminate Portland traffic deaths

“Vision Zero” is a traffic safety project that aims for the goal of zero traffic fatalities. It’s been adopted by cities worldwide – and now includes Portland, Oregon.

It’s a wide-ranging plan, with heavy emphasis on public education and prioritization of safety.

Vision Zero Safety Pledge

  • I will behave safely and courteously at all times on public streets, respecting and empathizing with other people’s need to get where they’re going and to get there safely.
  • I acknowledge that traveling on public streets can be risky, and I resolve to be alert to the surroundings.
  • I also recognize the role of the roadways, paths, and sidewalks as public space in the community, not only a means for travel, and resolve to share the road with all users, whether they are traveling to a destination or enjoying the street appropriately as public space.
  • I will be a good example, and I want my neighbors to slow down, say hi, and join me in spreading the word.

These are all great safety steps. But there’s an obvious way to eliminate most of Portland’s traffic deaths – and it’s barely mentioned.

Reduce the Speed Limit.

Portland’s High Crash Corridors make up only 3% of the roads (based on centerline miles).

This 3% of roads are where 51% of pedestrian deaths and 36% of all traffic fatalities are happening.

DLG_Portland_Car_Crash_Map

50% of Portland traffic fatalities are happening on these streets.

Portland’s City Commissioners are well aware of the factor of speed in fatal crashes. Commissioner Steve Novick pointed out that pedestrians survive nearly 95% of car crashes with a vehicle traveling 20 mph. Compare that to pedestrian crashes with a vehicle that is traveling 40 mph: pedestrians survive less than 20% of crashes. 

Vehicle fatalities are not wholly preventable as long as humans are behind the wheel. But statistically, lower speed = lower risk of serious injury or death.

Yet, there is almost no political will to try to lower speed limits – a historically unpopular position.

While Portland’s high crash corridors are addressed in the Vision Zero plan, the focus is “identifying HCCs helps the City target limited resources for improved safety.”

A possible “vehicle speed study” is barely mentioned.

“Vision Zero” has at its core a noble, important goal. Even attempting to reach it in ten years could save a lot of people from debilitating injuries and untimely deaths.

If “zero traffic deaths” is truly the city’s goal, then it’s time to honestly evaluate lowering – and enforcing – speed limits on Portland’s deadliest streets.

Is a driver responsible when a “sudden medical emergency” causes a car crash?

Recently, a driver who reportedly experienced a “sudden medical emergency” jumped the curb and hit 2 people on the sidewalk of the Burnside Bridge in Portland. One of the pedestrians was fatally injured.

In May, a Vancouver man died after suffering from a medical emergency and crashing on I-205.

In April, a 61-year-old semi-truck driver who “may have suffered a medical emergency”, veered off the road and caused a rollover crash.

Last year, a lawsuit was filed on behalf of an 11-year-old Aloha girl who was hit and killed by a Toyota when a diabetic driver blacked out behind the wheel.

A medical emergency behind the wheel

It’s statistically rare. An NHTSA study estimated only 1.3% of motor vehicle crashes are caused by a driver’s medical emergency. Even though it’s rare, it seems it is in the news all the time.

This is called a  “sudden medical emergency defense.” A driver of an automobile causes a crash and blames it on a medical event. Then, the insurance company claims they don’t have to pay damages, because their driver isn’t responsible for the accident.

Damore_Law_Statistics_Fatal_car_crash_behaviors

Although it’s a common defense, a very small percentage of crashes are caused by medical emergencies. Of those, many are predictable, preventable medical episodes.

Negligent driver and medical conditions

The law sets a standard for reasonable behavior: what would the average careful, practical person do in the same circumstances?

A person can be considered “negligent” – and responsible for the damages in a personal injury lawsuit – if their actions don’t meet that standard.

  • If the driver didn’t treat a medical condition, or ignored warning signs of a health crisis – dizziness, lightheadedness, shooting pains – that driver is probably negligent. Even if the medical emergency that caused the crash (like blacking out due to low blood sugar) wasn’t intentional, it was likely preventable.
  • If the driver is very suddenly incapacitated by a medical emergency – a heart attack or stroke – and if there was no history, and no warning, it is possible that he or she may not be found negligent. Lawyers who work for insurance companies use this as a defense; but it is just a strategy to avoid paying on insurance claims.

There are serious risks associated with driving a car for people who have certain medical conditions. An epileptic may have a seizure, a diabetic may have a sudden drop in blood sugar: these events can be predictable, and often are preventable.

Drivers have a duty to assess their health before getting behind the wheel of a car, and potentially endangering other people. Don’t let them deny responsibility for their own actions. When the defense is raised of a sudden medical emergency, thorough investigation should be done by police and/or medical doctors.

 

Recalled cars for sale in Oregon

Vehicle recall: when a car model has a safety-related defect, or doesn’t meet the minimum safety standards, the carmaker (or sometimes, the government) issues a recall to alert the vehicles’ owners.

When the defect is found, car companies have 60 days to notify owners. The carmaker’s dealerships are supposed to repair the problem, usually for free.

Right now, about 20% of cars and trucks in the U.S. have been recalled for safety and design problems. In Oregon alone, about 500,000 vehicles have open – unrepaired – recalls.

Recalls: a big problem for used-car buyers

 A car dealership can’t legally sell you a new car with an open safety recall. The defective part(s) on the vehicle has to be repaired before you can buy it.

But there is no law to stop a car dealership—or anyone else —from selling you a used car with an open recall.

 Most consumers don’t know that a car dealership is not required to fix any recalled parts on a used car before you can buy it.

The dealership may not even know if there are any safety defects on the car you want to buy. They don’t have to check for recalls.

And if they do know of an open recall, they don’t have to tell car buyers.

KGW_Investigates_Used_car_dealers_Oregon_Recalls

This KGW investigation shows dangerous recalled cars for sale in Portland.

Some dealerships do check all of their pre-owned vehicles for recalls, and certify that any repairs have been completed. Many don’t. That is unlikely to change any time soon, because it’s a big problem for national used-car dealerships chains like Carmax. They likely have millions of recalled cars and trucks on lots across the country.

Not all recalls affect a vehicle’s safety or drivability. Some may even sound like very minor problems. But ignoring a defective part can result in a much more serious problem throughout the life of that vehicle.

Before buying a used car in Oregon, get VIN and check safercar.govBefore you buy a used car from a car dealer or a private seller, check for recalls.

This also applies to rental cars. Click here to find out more.

Featured Associations
  • american association for justice
  • best lawyers in america
  • av rating
  • super lawyers