Oregon Injury Lawyer Blog

June 29, 2017

Bill to Curb Patients Rights Passes US House

On Wednesday the US House of Representatives passed the misleadingly-named “Protecting Access to Care Act” on a largely party-line vote of 218-210 (all of the ‘yes’ votes came from Republicans; the noes included 191 Democrats and 19 Republicans). There is no indication yet whether the Senate will take up this little-noticed piece of legislation, but it is worth keeping an eye on, because the provisions of the bill could dramatically curtail patients’ rights. Earlier this month the Trump administration issued a statement of support for the bill – signaling that the President will sign the legislation if it ever reaches his desk.

Earlier this week the website HuffPost published a detailed analysis of the bill by a law professor from New York University. According to that article, the legislation would severely limit the “non-economic” damages that could be awarded in medical malpractice suits involving “injuries like permanent disability, mutilation, trauma, loss of a limb, blindness, sexual or reproductive harm, and other types of suffering and pain. HR 1215 would federally-mandate that if you suffer the most severe non-economic injuries, they are worth exactly $250,000 (no matter what the local jury finds).” In addition, the bill would impose an arbitrary time limit of three years on healthcare lawsuits, making it impossible for injured people to claim compensation for problems that emerged only slowly over a longer period of time.

The measure, in other words, would override state law to protect the economic interests of doctors, hospitals, the drug industry, medical device manufacturers and the insurers who cover all of them.

June 27, 2017

Problems at Keizer Day Care Center are Symptoms of Broader Issue

by Matthew D. Kaplan

A recent article in The Oregonian details a distressingly long list of safety and oversight failures at a single daycare center in Keizer leading to a number of injuries to children.

According to the newspaper the Iris Valley Learning Center “amassed one of the worst safety and health records in Oregon over a decade based on sheer volume of state rule violations… The state Office of Child Care tagged Iris Valley with 102 violations from 2007 through 2016.” This included eight instances of broken bones – “the largest number of fractures at any provider during that period.”

It is important to note that the instances cited by the paper are all forms of neglect – lack of proper supervision of children, inadequate staff numbers, an unsanitary kitchen – rather than abuse per se. This is important because while we often focus attention on physical abuse it needs to be understood that child neglect is also a serious offense under Oregon law. Second Degree Child Neglect is a Class A Misdemeanor. As defined in ORS 163.545 it includes any action that results in leaving “the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of such child.” (First Degree Child Neglect – ORS 163.547 – is a felony but is much more narrowly defined and mainly concerns drug offenses that take place in close proximity to children).

June 20, 2017

The Distracted Driving Technology that Could be a Game Changer

by Matthew D. Kaplan

A few weeks ago I wrote about efforts to design a ‘breathalyzer for distracted driving’ – an app that law enforcement officers could use to determine whether a smartphone or other electronic device had been in use in the moments surrounding an auto accident.

Now, according to a Seattle Times story republished in The Oregonian, “anti-distraction software by a tech startup called Cellepathy would automatically go into a restrictive ‘driver mode’ when a phone is within a moving vehicle.”

Technology along these lines has long been a goal of activists looking for ways to reduce or end distracted driving. The challenges are formidable. At the most basic level, how does one make a technology sufficiently sophisticated to distinguish between the driver of a vehicle and passengers (this problem sunk some early ideas, such as using a smartphone’s GPS system to tell when the car is moving)? How does one make it both simple to use and relatively difficult to fool?

June 10, 2017

New Facility May Improve Treatment of Mentally-Ill Inmates

by Matthew D. Kaplan

A recent article in The Oregonian documented efforts by Disability Rights Oregon to convince “the Multnomah County Sheriff’s Office to transfer jail inmates undergoing mental health crises to the city’s new emergency psychiatric care center if needed.” As the article outlines, the Northeast Portland facility recently opened, offering “a long-awaited alternative to having police take people in crisis to regular hospital ERs.”

As the newspaper reports “a no-guns policy and other logistics make the request a tough sell.” What it does not lay out, however, is an especially strong legal argument for using the Unity Center for Behavioral Health: prisoners’ rights.

As I have written in other contexts, one of the most important legal tools for ensuring that people held in custody are treated in a humane way that respects their rights is 42 USC 1983. This allows individuals to sue when the government deprives them of any of the “rights, privileges, or immunities secured by the Constitution and laws.” In plain English: it offers a mechanism for people who have been mistreated by government at any level (local, state, federal) to have their day in court and obtain justice.

May 30, 2017

New Technologies, New Legislation and Oregon Distracted Driving

by Matthew D. Kaplan

With the Oregon Senate taking up HB 2597, a bill that would significantly increase fines for distracted driving, this is a good moment to look at both the state of the law here in Oregon and at a new technology-driven effort to combat the problem.

As The Oregonian reports, the state House passed HB 2597 early this month. According to the newspaper’s legislative tracking site the Senate held its first hearings last week and the Senate Judiciary Committee has a work session on the measure scheduled this Tuesday (May 30). If enacted, the legislation would make major – and much needed – alterations to Oregon’s existing distracted driving law.

Under current law, as laid out in ORS 811.507, distracted driving is a Class C traffic violation, punishable by a fine of up to $500 (though in practice assessed fines are often much lower – usually around $160). According to The Oregonian “under HB 2597, Oregon drivers could be fined up to $2000 for using a ‘mobile electronic device’ while on the roads. Fines for a first offense could total $1000 and be erased if drivers take a state-approved distracted driving avoidance class at their own expense. Subsequent offenses, or a first offense that causes a traffic collision, would result in higher fines that could not be waived.”

May 26, 2017

Holiday Weekend Prompts Warning About Water Sports

by Matthew D. Kaplan

According to a recent Oregonian article there have been three instances of water-related fatalities in Oregon in just the last few weeks. With the long holiday weekend upon us, that makes this an especially important moment to remind everyone of essential safety precautions, especially when it comes to preventing injuries to children.

In an article this week the newspaper noted that “authorities suspended their search… for a missing swimmer who’s presumed drowned at Three Pools, a popular swimming hole in Marion County. A man who jumped into the North Umpqua River in Douglas County is also presumed drowned. And a Portland man is presumed drowned after he jumped into the Clackamas River.” It goes on to note that 21 “people drowned in public, natural waterbodies in Oregon and southwest Washington last summer.”

Memorial Day weekend will bring even more people to the water, and potentially expose them to a wide variety of dangers, but the good news is that many of these can be minimized through a few basic, common sense precautions. Among the easiest – and most important – is ensuring that everyone in a boat, canoe or kayak is wearing a life jacket. Nearly a year ago I used this space to publicize the Aaron Peters Water Safety Fund, a non-profit dedicated to keeping everyone, but especially kids, safe when they are on the water. The fund, as its website explains, “is designed to help aid in building kiosks for life jackets” with the goal of preventing drownings in high-risk areas. Life jackets can be borrowed from APWSF kiosks for free. Last summer the fund exceeded its initial goals by setting up kiosks in eight locations around the state in just a few months. The link below offers both a complete list of the current kiosks and more information on the fund and it’s important work.

May 17, 2017

Oregon Supreme Court Weighs In On the Side of Patients

by Matthew D. Kaplan

An Oregon Supreme Court ruling issued last week has received remarkably little coverage outside of the specialized legal press, but it deserves much more attention. In the case of Smith v Providence Health & Services (361 Or 456) the court reversed rulings from both the trial and appellate courts, and found that a legal doctrine known as Loss of Chance “is cognizable under Oregon common law.” In doing so, it significantly increased the rights of ordinary Oregonians confronted with failures or negligence on the part of the medical system.

As the Bend Bulletin, one of the few newspapers to have taken note of the case, aptly noted, the ruling means that Oregonians “can bring medical malpractice cases not only when they are injured but also when negligent care denies them a treatment with a potentially better outcome.”

The case revolved around a man “who went to a Hood River emergency room in 2011 concerned that he was having a stroke. Doctors discharged him without ordering an MRI or prescribing clot-busting drugs. By the time an MRI confirmed a stroke a week later (he) had incurred significant brain damage.” Both the article and court’s opinion note that had these precautions been taken there is a one-in-three chance that the plaintiff would have recovered substantially, perhaps even completely, from the stroke.

May 10, 2017

Jury Award Links Talc to Ovarian Cancer

by Matthew D. Kaplan

Last week a jury in St. Louis became the fourth in a year to award substantial damages to a plaintiff who believes that consumer goods giant Johnson & Johnson’s talcum power is linked to ovarian cancer. According to a Bloomberg News report, the Missouri jury awarded the woman $110 million in damages. This follows three jury verdicts of $55 to $72 million in similar cases last year (the company has won one case during the same period, according to Bloomberg). Appeals are expected in all of the cases.

The agency quotes the attorney for the plaintiff in the St. Louis case saying: “Once again we’ve shown that these companies ignored the scientific evidence and continue to deny their responsibilities to the women of America… they chose to put profits over people, spending millions in efforts to manipulate scientific and regulatory scrutiny.” In addition to the millions in damages from J&J the jury also Imerys Talc America, a separate company that manufacturers talc sold under the J&J label, to pay $100,000 in damages.

Bloomberg reports that more than 1000 cases alleging a link between J&J’s talc and ovarian cancer have already been filed. Though J&J is headquartered in New Jersey many of these cases have been filed in Missouri because that state’s laws allow for suits like these to be filed in its courts even when the plaintiff has no connection to the state (last week’s $110 million verdict involved a woman from Virginia). But is it necessary for all these cases to head for the Midwest? Are the product liability laws here in Oregon adequate to address cases like this?

May 2, 2017

Prison Death Case Raises Serious Civil Rights Issues

by Matthew D. Kaplan

The death by thirst of an inmate in a Wisconsin jail last year has returned to the news this week raising serious civil rights issues and, in the process, shining a light on the broader problem of inmate abuse nationwide.

The story from Milwaukee is shocking on every level. According to a recent report in HuffPost, citing the Milwaukee Journal-Sentinel, a mentally-ill man died of severe dehydration last year while being held in the county jail after he “was kept in his cell for seven days straight after jail employees cut off his water supply.” Last week prosecutors, speaking at a formal inquest, called the action “highly irregular and contrary to standard operating procedure in the jail,” according to HuffPost. The article does not use the phrase “cruel and unusual punishment” – something explicitly prohibited by the Eighth Amendment to the US Constitution – but on its face it is difficult to see how cutting off a prisoner’s water for a week would not rise to that standard.

The case is receiving renewed attention as an inquest seeks to determine whether or not criminal charges should be brought against any of the jail’s employees or their supervisors. The decision will be made by a six-person jury. The case highlights a broader point about deaths in custody that some organizations, notably the American Civil Liberties Union, have been making for some time. An article on the ACLU’s website documents the degree to which “excessive force by correctional staff… leads to extreme, unnecessary suffering and sometimes death.” Along the same lines, a HuffPost investigation found that more than 800 people died in American jails last year, 182 of them within three days of their arrest.

April 29, 2017

Abuse Scandal Raises Questions About State Oversight

by Matthew D. Kaplan

An investigation by The Oregonian has revealed that the state agency charged with fighting the abuse of senior citizens and the disabled has been hiding thousands of cases of neglect. The revelation calls into question Oregon’s entire approach to elder abuse and neglect and is a yet another reminder of the important watchdog role that both the media and our courts must always play in society.

According to the newspaper “the Department of Human Services operates a website that is supposed to help consumers identify safe havens for their aging loved ones, including those suffering from Alzheimer’s and other debilitating illnesses. But an investigation… found that officials have excluded nearly 8000 substantiated claims of substandard care from the state’s website.” The Oregonian reports that its investigation was based on examinations of state records that are not available online, and therefore harder for the general public to access and assess. It notes that “more than 60 percent of the substantiated complaints against care centers in Oregon since 2005 can’t be found on the state’s website.”

The Oregonian’s report emphasizes that all of the complaints excluded by the state and uncovered by this investigation had been verified by state employees. The question, in other words, was not whether the abuse occurred but whether Oregon was willing to acknowledge it.