Oregon Injury Lawyer Blog

March 12, 2019

The Fundamental Problem With For-Profit ‘Correctional Health Care’

A lengthy article recently published in The New Yorker is shining a light on the extraordinary extent to which private companies have taken over health care in prisons. It is a trend that has grown quietly – and largely out of sight – over the last several decades, combining many of the worst elements of both our dysfunctional national health care system and the morally and legally ambiguous trend toward privately-run, for-profit, prisons.

The article details numerous cases in which private companies are alleged to have provided inadequate care whether through neglect or inadequate staffing and concludes: “Taken as a whole, evidence from cases across the country suggests that four decades of policy failures in both health care and criminal justice reform have left a largely neglected population vulnerable and, at times, at risk, and that for-profit companies, which were promoted as a solution, have instead become an integral part of a troubled system.”

Because prisoners represent a population with which many people have little sympathy, it is important to note here that cities, states and the federal government have a legal obligation to care for the people they lock up. “The standard of care that incarcerated people have a right to receive was established in the landmark case of Estelle v Gamble in 1976,” the magazine notes. In that case the Supreme Court ruled 8-1 that “deliberate indifference to serious medical needs of prisoners” violates the constitution’s prohibition against “cruel and unusual punishment.” As the article goes on to note, “Estelle also spawned a wave of civil-rights litigation seeking to enforce the Eighth Amendment protection,” a process which, over time, caused the standard of required care to become more precisely defined.

March 5, 2019

Fatal Oregon Bike Accident Highlights Criminal v Civil Distinctions

by Matthew D. Kaplan

The Associated Press recently reported on the sentencing of a woman in Deschutes County to more than 12 years in prison following a December 2017 incident in which she struck and killed a 38-year-old Bend woman who was riding a bike.

The news agency, citing local TV station KTVZ, quotes the Deschutes County Circuit Judge overseeing the trial calling it “the most extreme reckless endangerment case:” he had ever seen. The defendant was convicted “for hitting and killing a cyclist while driving under the influence (of)… nearly a dozen prescription drugs, including her dog’s anxiety pills, at the time of the crash,” the AP reports. Clearly there is a case to be made for punitive damages here.

Though the criminal trial is now over, the question of civil damages is one that may still need to be addressed. Obviously there is a strong case to be made for a wrongful death lawsuit on behalf of the victim’s estate. It is also worth noting that, according to media reports, the woman was “riding with two friends” on a road east of Bend at the time of the accident. The survivors, even if they were not physically injured, may have a strong case to make for damages based on the mental distress they have suffered in the wake of their friend’s death. All of these parties – the decedent’s beneficiaries as well as the other two people impacted by the accident – have a strong claim to punitive damages.

February 21, 2019

Oregon Legislature Moves to Address a Serious Insurance Problem

by Matthew D. Kaplan

Nearly four years ago I first wrote about the obscure, but critically important, issue of “subrogation.” This legal doctrine allows insurance companies to reimburse themselves out of settlements their clients receive for covered injuries.

The incident I wrote about back in 2015 was a classic example of the problem. A baseball fan who was savagely beaten in a stadium parking lot and who now faces a lifetime of medical expenses won an $18 million settlement. His ongoing medical expenses mean that he will need that money. But his insurance company went to court to try to claim a significant portion of the settlement.

Now the Oregon legislature is set to consider a bill that would limit the practice. According to a recent article in Willamette Weekly, SB 421 “would match the laws in many other states, where the injured party can be ‘made whole’ for all damages, including pain and suffering, from the at-fault party’s insurance before the injured party’s medical insurer gets paid.” According to the legislature’s website (see link below) the bill, which has bi-partisan sponsorship, has been referred to the Judiciary Committee, though a hearing on it has not yet been scheduled.

February 12, 2019

Fatal Washington I-5 Crash Focuses Attention on Insurance Issues

by Matthew D. Kaplan

Following up on my recent blog about the dangers in Oregon’s system of uninsured and underinsured motorist coverage an incident on Interstate-5 near Olympia, Washington is bringing similar issues into focus north of the Columbia River.

According to The Olympian an arraignment is scheduled to take place next week for a man “whose vehicle crashed into a 16-year-old Oregon girl” killing her and injuring both the driver himself and two other people. The 40-year-old man from Poulsbo, Washington faces vehicular homicide charges “as well as four counts of reckless endangerment.”

The newspaper reports that the accident took place when one car, which multiple witnesses described as driving erratically, hit two other cars that were stopped in a breakdown lane and waiting for assistance. The 16-year-old who had been driving one of those cars was killed in the accident and her mother was seriously injured. Two other people – the girl’s uncle and brother – were not injured. Also injured was the driver of the erratic car along with his 8-year-old daughter.

January 31, 2019

‘Uninsured Motorist’ Coverage Often is Not Enough

by Matthew D. Kaplan

An article published a few days ago in The Oregonian offers a good opportunity for us to examine the problems with Oregon’s systems for dealing with uninsured and underinsured motorists.

The newspaper reports that “a 29-year-old driver who lost control of his car and hit several parked vehicles, causing traumatic injuries to one of his passengers” fled the scene of the accident on foot and was arrested several days later. The accident took place on 92^ndAvenue near the intersection with Powell Boulevard in Southeast Portland. The newspaper quotes police saying a 34-year-old woman was hospitalized with life threatening injuries after the incident. The woman’s fiancé was also injured.

The driver “is accused of two counts of felony failure to perform duties of a driver to injured persons” according to The Oregonian. We do not know for certain, but the driver’s decision to flee strongly implies that he was either uninsured or underinsured. As most readers of this blog are probably aware, Oregon and Washington both require every driver to purchase insurance with a minimum of $25,000 in liability coverage. Those insurance policies almost always provide coverage against being hit by an uninsured and underinsured motorist for the same $25,000.

January 24, 2019

Saudi Disappearances Raise Oregon Legal Questions

by Matthew D. Kaplan

A recent article in The Oregonian outlined what has become a depressingly common story: the abrupt disappearance of Saudi Arabian students facing criminal charges here in Oregon. The newspaper reports that it “has found criminal cases involving at least five Saudi nationals who vanished before they faced trial or completed their jail sentence in Oregon.”

The suspects “include two accused rapists, a pair of hit-and-run drivers and one man with child porn on his computer.” A 2014 case detailed by the newspaper fits the pattern: shortly after the man’s arrest a Saudi diplomat appeared at the local district attorney’s office to post bail for the accused student. Having made bail and been released the defendant later failed to appear for his trial. As the newspaper puts it, the “cases raise new questions about the role the Saudi government may have played in assisting its citizens fleeing prosecution in Oregon – or possibly elsewhere in the United States.”

Any conduct along those lines would be a serious violation of diplomatic norms. Questions like that lie outside the scope of this blog, but there are other issues raised by these cases that are of immediate concern to us here.

January 16, 2019

Portland Moves to Make Biking Safer on Greeley Avenue

by Matthew D. Kaplan

In an exciting development for area cyclists, The Oregonian reports that Portland’s city council has “blessed a plan to build a protected two-way bike path on North Greeley Avenue between Interstate 5 and Swan Island.” The $1.9 million project will involve repaving Greeley as part of the construction process. If everything goes according to plan the path will be open in the fall of 2019.

The path will be a significant addition to Portland’s cycling infrastructure, creating a protected cycleway to replace what the newspaper says “might be one of the most dangerous bike lanes in Portland.” I have written in the past about the dangers of cycling on North Greeley. A video on The Oregonian’s website aptly illustrates what a hair-raising experience a ride along this road currently is. Traffic speeds past on a road where the existing shoulder is narrow and in poor condition. The paper notes that “two bicyclists have been seriously injured on the stretch of road between 2007 and 2016.”

Oregon already has strict laws designed to protect cyclists. ORS 811.050 designates failure to yield to a cyclist in a bike lane as a Class B traffic violation (meaning it incurs a fine of up to $1000). That is important to keep in mind on North Greeley where even after the new bike path is constructed drivers headed south will have to cross the bike lane as they enter the I-5 onramp.

January 9, 2019

Portland Health Center Director Resigns

by Matthew D. Kaplan

Last month I wrote about the problems plaguing Portland’s Unity Center for Behavioral Health. According to The Oregonian, serious reports of neglect and abuse began to emerge almost as soon as the facility opened in 2017. In short order there was evidence of at least 16 incidents that ought to have been reported to police but were not. Now, only a few weeks later, the center is in the news again, with the paper reporting that its director has stepped down. “Legacy Health, which operates Unity, gave no explanation for her departure… although she will stay on as an advisory member of the Unity Board of Managers.”

As the paper outlines, “within the first month of opening, Unity staff reported instances of neglect and abuse within the facility. A federal and state investigation, started in spring 2018, eventually found that staff were poorly trained and underworked.” This, at what was routinely described as one of the state’s premier mental health facilities.

This incident raises serious questions about Oregon’s regulation and oversight of health care facilities. I have been covering the issue in this blog for several years and, more importantly, it has been the subject of some excellent investigative reporting by a number of Oregon media outlets. It is worth asking, however, why these issues never seem to go away. The mandatory reporting obligations of almost all staff members and even many of the people simply passing through a facility like Unity (medical or law enforcement professionals who might visit, for example) ought to offer strong protection for patients but, clearly, they do not (see links below for more information on mandatory reporting as well as the numbers to call to report abuse and neglect). This is where Oregon’s civil and criminal laws enter the picture. They are designed to prevent abuse in nursing homes, mental care centers and similar facilities.

December 28, 2018

Clackamas County DUII Accident Kills One, Highlights Drunk Driving Dangers as New Year’s Eve Approaches

by Matthew D. Kaplan

A 23-year-old Woodburn woman was arrested and charged with a series of offenses after a single-car accident in Clackamas County. According to The Oregonian the accident took place a few days before Christmas on Highway 211 near South Palmer Road. The woman “is accused of second-degree manslaughter, fourth-degree assault, driving under the influence of intoxicants, reckless driving and recklessly endangering another stemming from a single-car crash that killed one of her three passengers.”

The newspaper reports that the vehicle “veered off the road and struck a tree.” One of the passengers, a 26-year-old Woodburn man, died at the scene of the accident. The driver and the other two passengers were all taken to OHSU hospital, where the driver was later arrested.

New Year’s Eve is next Monday. That means that for many people one of the most dangerous nights of the year to be out on the roads will also be part of an extra-long holiday weekend. As is always the case over New Year’s there will be many options involving both public transport and taxi/ride share systems to help people get home safely. A number of these can be found by clicking the KATU-TV link below.

December 22, 2018

Portland Man Charged with Workplace Misconduct, But What About his Employer?

by Matthew D. Kaplan

This week The Oregonian carried the extraordinary story of a man who “was arraigned on 34 charges for allegedly recording colleagues at the Banana Republic Factory Store” on NE Cascades Parkway near the Portland airport. The 34-year-old allegedly placed hidden cameras in the women’s restroom at the store and recorded video of dozens of partially naked women, including children.

What is especially shocking is the revelation that the man had faced similar allegations at his previous job as a pharmacist with Kaiser Permanente. Last month the suspect “was arraigned on 71 similar charges for allegedly recording 51 men and women using the unisex bathrooms and changing rooms at the Kaiser Permanente facility” on Portland’s Northeast 138^thAvenue. The man was fired after another employee “found a camera” in one of the bathrooms.

The article notes that some of the employees from the Banana Republic store are considering a civil suit. Two areas bear particularly close examination. First, there is the question of whether the Banana Republic store did everything it could to prevent this man, or anyone else, from invading employees’ privacy by installing secret cameras in the restroom. We need to know more about the nature of the cameras, where they were positioned, how they operated and how long they were in place. Most importantly, we need to consider what the store could have done to prevent this and other forms of employee misconduct. The U.S. Department of Labor’s website on workplace health and safety (see link below) lays out the standards all employers are expected to uphold. Difficult questions clearly need to be asked about how the store managed to get itself into this position in the first place.