Oregon Injury Lawyer Blog

January 9, 2017

New Year Brings New Push Against Distracted Driving

A new law that came into effect in California this month is likely to be closely watched here in the Pacific Northwest and elsewhere around the country. The wide-ranging legislation goes “further than most states in prohibiting the use of cellphones, banning drivers from even holding mobile devices while driving,” according to the New York Times.

The newspaper describes it as a legislative attempt to get ahead of the technology curve. “The law builds on earlier legislation that prevented drivers from talking and texting but did not prohibit them from streaming video, for instance, or using apps like Facebook and Twitter,” the paper reports. It notes that “late last month a family filed a lawsuit against Apple over a 2014 accident in which a driver using FaceTime crashed into the family’s car, killing their 5-year-old daughter.”

It may seem obvious that a law designed to prevent texting would also cover the use of Skype or FaceTime, but that is no excuse for legislators failing to tighten up the language of the relevant statutes. For example, here in Oregon the law governing distracted driving, ORS 811.507 (see link below), defines a “mobile communications device” as “a text messaging device or a wireless, two-way communications device designed to receive and transmit voice or text communication.” Would that definition cover the latest generation of the iPod Touch, a device that can’t make phone calls or send text messages but can surf the internet and make video connections? In a world where wi-fi networks are rapidly spreading around cities and towns this is no longer a theoretical question.

December 30, 2016

Be Careful Out There This New Year’s

by Matthew D. Kaplan

As we move into an extra-long holiday weekend the Oregon State Police are already on the lookout for drunk drivers. A news release issued on Tuesday noted that the first of many “saturation patrols” across the state is scheduled to begin Friday in Tillamook County. An OSP news release says that “our main goal is not to catch drunk drivers, but to be seen everywhere and hopefully to deter someone from driving while intoxicated.” But it is always important to remember that the police are there to do more than simply scare people into doing the right thing. This year, as in years past, they will be doing much more than simply being seen.

The news release can be viewed as a kind of opening salvo in the sad but absolutely necessary ritual of reminding people not to combine drinking and driving over the New Year’s holiday. The warning is especially pointed this year because New Year’s Day falls on a Sunday – meaning many people will have Monday off as well, creating a holiday period that runs from the evening of December 30 all the way into the early hours of January 3. Add in the now widespread availability of marijuana – which is legal to consume here in Oregon but which, like alcohol, is considered an intoxicant – and the potential for danger on the roads is significant.

Chapter 813 of the Oregon Revised Statutes (ORS) lays out the legal framework surrounding drunk driving in our state. It defines DUII as operating a vehicle when having a blood alcohol level of 0.08 percent or more, but also allows convictions at a lower level if the alcohol is used in combination with “a controlled substance or an inhalant.” (Section 813.011 (1)(b)) Two DUII convictions in a 10-year period automatically raise the stakes. In that case a third conviction would be a Class C felony under Oregon law, leading to a loss of driving privileges for 10 years and a mandatory jail sentence.

December 23, 2016

University Abuse Case Reminds us of the Importance of Civil Trials

by Matthew D. Kaplan

The extraordinary news of a lawsuit filed this week in Los Angeles alleging that a major university looked the other way as a school doctor abused students, some of them Olympic-level athletes, is a stern but necessary reminder of the role our courts play in holding abusers to account.

According to detailed reporting by ESPN “officials at Michigan State University missed early warning signs about… the school doctor and former USA Gymnastics team physician accused in recent months of multiple sex crimes.”

According to ESPN, citing legal proceedings, the team doctor conducted what he called “inter-vaginal adjustments” on an 18-year-old athlete who had come to him for treatment of back pain. Over time the ‘treatments’ became more and more intrusive to a point where few reasonable people reading the descriptions of them could characterize them as anything other than sexual assault.

December 14, 2016

Oregon’s ‘Heads Up’ Program Called into Question

by Matthew D. Kaplan

Two recent articles in the online health publication MedPage Today are the latest of a growing number of pieces questioning the effectiveness of “Heads Up” – the youth sports concussion awareness and prevention program sponsored by the federal government’s Centers for Disease Control and Prevention.

As the journal outlines, “Heads Up was launched in 2003 by CDC’s Injury Center and 26 partners, including the National Football League, YMCA and medical societies. Organizers produce and distribute resources, statistics and overviews of concussion laws and policies focused on high school sports, youth sports, parents, schools and health care providers.” The NFL has sponsored its own variation on the program, canned “Heads Up Football.” Despite their similar names, the NFL’s program is not formally connected to or endorsed by the CDC, according to MedPage Today. It’s use, however, is mandatory in youth football programs here in Oregon according to the journal (the only other state that requires coaches and youth football programs to use Heads Up Football is Vermont, though the program has gained widespread acceptance nationwide). Heads Up Football is designed to promote safe tackling and blocking techniques.

The question, however, is whether it works and a lot of that is a question of enforcement. The article notes that a study in Texas found that “among 185 school athletes who were examined for concussions at the hospital’s sports clinic in 2014, 38% had returned to play the same day they suffered the head injury – without being cleared by a medical professional and despite medical guidelines and state law that should have kept the students on the sidelines.”

December 7, 2016

Oregon Governor Proclaims December as ‘3D’ Month

by Matthew D. Kaplan

In a bid to raise safety awareness this holiday season, Oregon Governor Kate Brown has declared December to be “3D Month”, a term which, according to Bend TV station KTVZ, is shorthand for “Drunk and Drugged Driving Awareness Month.” Or, as the station’s web headline succinctly puts it: “Reminder: Recreational pot legal, DUII is not.”

The article quotes the head of the Governor’s Advisory Committee on DUII noting that “drivers have a responsibility to drive sober and to not use imparing substances… we want to keep people from making a poor choice that harms themselves and others.”

From a legal perspective the key phrase here is “imparing substances.” DUII in Oregon is covered by Chapter 813 of the Oregon Revised Statutes. Section 813.010 defines the offense as operating a vehicle with a blood alcohol level of “0.08 percent or more” or while “under the influence of… a controlled substance or an inhalant or” any combination of those three things. Put another way, from a legal perspective the question is not so much what you have consumed but whether it affects our ability to drive a car or truck. If it does (and pot definitely falls into that category) then it makes you subject to DUII penalties even if alcohol as such is not involved.

November 27, 2016

Oregon Psychiatric Facility Death Raises Numerous Issues

by Matthew D. Kaplan

A story published this week in The Oregonian focuses on the suicide of a teenage boy who was living in a Corvallis residential treatment facility and on accusations that the facility falsified care records in an attempt to evade responsibility for its actions. There are broader issues also raised by the case, however, and I would like to take a few moments to examine both the issues raised by the newspaper and the ones that also merit our attention.

According to The Oregonian the boy, age 15, died last August. A state investigation showed that he was supposed to be closely monitored while in the facility, with staff checking on him every 15 minutes. Though the care center’s records indicated he had slept through the night, a state investigation showed that he had been left alone for 40 minutes at one point that evening despite having “told staff earlier in the evening that he was suicidal and had been bleeding from self-inflicted arm wounds.” The newspaper adds that the investigation turned up other instances in which “patients told regulators they also had gone without scheduled check-ins by the center’s employees.”

The focus of the newspaper story is on the alleged falsification of records and this is obviously a serious issue. If proper, legally required, records are not kept by caregivers and facilities it is impossible for patients to get the treatment they need and extremely difficult for cases of medical malpractice or nursing home abuse and neglect to be proven either while they are unfolding or after the fact. To be clear: this is an extremely important issue and one where it is critical to everyone’s health and well-being that federal, state and local regulators do their jobs.

November 18, 2016

OSHA fine May Not End Workplace Death Case

by Matthew D. Kaplan

A recent article in The Oregonian outlined the details of a $142,000 fine leveled against a Portland excavating company for a fatal job site accident last May.

According to the newspaper a 29-year-old worker died when a trench in which he was working caved-in. Referring to an investigation by the Oregon Occupational Safety and Health Agency the newspaper writes: “The investigation found two employees were working in an improperly shored trench that was about 10 feet deep… the excavation was incorrectly braced because two pieces of shoring were spaced too far apart to handle unstable soil.” Critically, the newspaper reports that “the company’s owner, who was on site, said he was negligent in allowing his employees to work in such a situation. He said he saw that the shoring was set up about 15 feet apart and he knew that it was not set up correctly.”

The fact that the OSHA has acted to impose a fine is important, but it does not mean that the legal consequences surrounding this incident are over. From a civil law perspective the admission by the owner that he knew he was asking his employees to work in unsafe conditions opens up a number of important questions. This case represents a clear violation of the Employment Liability Act (ORS 654.305 and ORS 654.325), a law whose entire purpose is to make sure workers are not exposed to dangerous conditions.

November 5, 2016

Railway Safety Issues Deserve Real Attention

by Matthew D. Kaplan

The fatal crash of a commuter train near New York last month focused many people’s attention on deteriorating infrastructure and the dangers it causes. But closer to home we also have examples here in the Northwest of the problems caused by ageing rail infrastructure and, equally critically, the reluctance of both government and private industry to take the steps necessary to safeguard the public.

As Washington State’s Northwest Public Radio recently outlined an initiative is underway near Spokane to hold Union Pacific and other large railroads responsible for the damage they can do to local communities. According to the radio network, the proposed ballot initiative (which, if accepted, would be voted on at a local election next year) “could prohibit coal and oil companies from transporting their products through the city by rail.” City leaders have been forced to put forward this proposal focusing on the owners of individual rail cars rather than the railroad itself because, according to one City Council member “we also engaged in negotiations with the railroads and they said, ‘you know, we’re just pulling these cars, we don’t own them.”

The problem is that under current law the railroads and the companies for which they haul materials each attempt to shift responsibility for accidents and environmental damage to the other. In addition, the radio network reports, “railroad companies have also argued federal law trumps local regulation anyway.”

October 25, 2016

Lawsuit Spotlights State’s Obligations

by Matthew D. Kaplan

A lawsuit filed last week by Oregon’s ACLU is shining a light on the state’s obligations to provide medical treatment for prisoners, according to a news release from the group and coverage in The Oregonian. Last week the group filed suit on behalf of a transgender woman who is currently an inmate at the Two Rivers Correctional Facility in Umatilla. The ACLU says the prisoner “is being denied essential medical care. The suit… argues that it is cruel and unusual punishment to deny medically-necessary care to prisoners.”

The Oregon Department of Corrections’ own “Health Services” web page acknowledges that “state and federal laws have established that inmates are entitled to health care during incarceration. Health care services available to inmates must be comparable to health care provided in the community in order to meet the state’s legal obligation. This means that all types and levels of health care must be provided in a clinically appropriate manner by properly credentialed professionals in settings equipped and designed for the delivery of health care.” By these parameters health care, legally speaking, has to be considered a civil right where prisoners are concerned. Denial of appropriate care, therefore, can be challenged using 42 US Code 1983 – a key legal text concerning civil rights. 42 USC 1983 allows anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” to sue the person or institution which violated those rights in civil court.

So if we take that acknowledgement by the state DOC as a starting point, the question must be asked: how can the agency defend the conduct alleged in the ACLU lawsuit? Specifically, the group charges that the state has denied its client’s repeated “requests for hormone treatment, despite an official diagnosis of gender dysphoria. The lawsuit also accuses state officials of placing (the plaintiff) in segregation or solitary confinement for weeks and sometimes months at a time,” the newspaper reports. When placed in a Disciplinary Segregation Unit following a suicide attempt earlier this year “staff mocked her and called her a ‘freak’ and other vulgar names,” the suit alleges. A mental health professional who evaluated the woman on behalf of the DOC referred to her repeated requests for essential hormone treatments as “quality of life issues” according to The Oregonian, and repeatedly referred to the prisoner using male pronouns (the 25 year old prisoner has publicly identified as female since the age of 16).

October 19, 2016

The Forest Grove Sexual Abuse Plea Deal and Criminal vs Civil Penalties

by Matthew D. Kaplan

At a moment when presidential politics have led to a national discussion about sexual assault last week’s news of a plea deal in an especially shocking case in Forest Grove was eye-catching. According to a report in The Oregonian the owner of a retirement home in that community received a two-day jail sentence and five years of probation after pleading “guilty in Washington County Court to 11 counts of third-degree sex abuse and one count of attempted third-degree sex abuse. More than two dozen other charges, including first-degree sex abuse, second-degree sex abuse, third-degree sex abuse and first-degree burglary were dropped as part of the plea deal.”

According to the newspaper the accused, a 73-year-old man, routinely groped women under his care and used his position as the home’s owner to press himself on his female employees. The victims ranged in age from their 30s to their 80s. The newspaper adds that the plea agreement was reached with the cooperation of the victims. “Nearly all the women said they wanted to avoid a trial, which would be a lengthy and humiliating process for them,” the newspaper notes, quoting a Washington County District Attorney’s Office spokesperson.

Two legal points stand out here, one shocking and the other offering some relief. The first is the negotiation of the charges down from first-degree sexual assault to third-degree. This is a significant difference. First-Degree sexual assault (ORS 163.427) is a Class B felony, meaning that each count could lead to up to ten years in prison and a $250,000 fine. Third-degree sexual abuse (ORS 163.415) is a Class A misdemeanor, which makes the maximum fine $6250 and the maximum jail time one year. Without wanting to second-guess a criminal prosecution decision that reportedly involved input from the victims, it has to be said that a mere two days in jail and, reportedly, no fine, seems like far less than prosecutors might have gone for, even under the reduced charges.