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Matthew D. Kaplan

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As the nation settles in for another football-filled fall weekend many of the sport’s fans are focusing on new enforcement measures announced by the NFL in the last few days. The league wants to contain the damage being caused by violent, potentially catastrophic, hits. As has been reported just about everywhere, an unusually large number of stomach-churning plays last week led the league to issue fines, threaten suspensions and warn players that enforcement of the sport’s existing rules is going to be tougher from now on.

But as a pair of articles published at opposite ends of the country this week remind us, the dangers of traumatic brain injuries, spinal cord injuries, concussions or other serious injuries faced by high school, middle school and youth players are, in some ways, far greater than those confronting the highly-trained, closely monitored athletes of the NFL.

In a wide-ranging article published yesterday, the Los Angeles Times noted that, in Southern California, no baseline set of standards exists for medical care at high school football games. The article dramatically contrasts the situation at private schools that can afford to have a staff of as many as four athletic trainers and a doctor roaming the sidelines to that of poor public schools that make due with an ambulance parked at one end of the field. Such a situation, the paper notes, offers reassurance in the event of a catastrophic brain or spinal cord injury, but does little or nothing for players who suffer milder, harder to diagnose – and far more common – injuries, such as concussions.

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After a seven-year investigation the Consumer Product Safety Commission announced this week that the Graco corporation has agreed to recall an estimated two million strollers manufactured prior to 2007, according to a report in today’s New York Times.

According to the newspaper, the CPSC became concerned that the strollers pose a risk of injuries to children by strangulation, particularly for children under the age of one, because “when left unharnessed, they can crawl through the opening between the seat and stroller tray and become trapped,” the paper reported. In all, four children’s deaths have been linked to the faulty strollers, along with five other incidents in which children were injured after becoming trapped in the strollers. The CPSC, according to the Times, has been investigating the product since the first report of a child’s death in 2003.

Graco is offering customers kits that will allow them to repair the strollers. The company agreed to the voluntary recall at this time “because many more parents were buying and selling secondhand strollers, probably because of the prolonged economic malaise,” the newspaper reported.

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Recent reporting by the Seattle Post-Intelligencer highlights important differences in how Washington and Oregon treat the reporting of medical errors. The article focuses on Washington, where hospitals are required to report their medical errors to state officials. It notes, however, that there are many holes in the system – notably concerning definitional questions. It also adds that such problems can be even worse in the 23 states where the reporting of hospital errors is not required by law.

Oregon, unfortunately, is one of those states. As the Oregon Patient Safety Commission’s website notes, its mission is to “establish a confidential, voluntary serious adverse event reporting system in Oregon.” Because reporting is voluntary, it is difficult to tell whether the 32 deaths from “preventable errors” in 2009 reported by The Oregonian earlier this year represent the sum total of deadly Oregon medical errors, or whether the problem is more serious than indicated by the available data.

In this regard the example of Washington is sobering. According to the Post-Intelligencer, even in a state where the reporting of serious hospital incidents is mandatory loopholes can allow obvious errors to slip through the system. The article I link to below tells the story of a Yakima man who went into the hospital for routine shoulder surgery, suffered brain damage due to nursing errors and died two days later. The newspaper reports that because the victim did not die within 24 hours of the surgery, however, the events were not considered to be related for incident reporting purposes. It took a complaint by the victim’s family for the incident to be formally logged and the hospital to become subject to disciplinary action.

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A three-vehicle Central Oregon car accident over the weekend left one person dead and two injured. The Salem Statesman-Journal, quoting Oregon State Police, reports that 19-year-old Yardley Rico of Culver was driving north on US-97 when, for reasons still unknown, his car drifted over the center line.

Rico reportedly sideswiped one oncoming car before colliding head-on with another. He was pronounced dead at the scene. The driver and a passenger in the car he hit head-on were treated at a Redmond hospital for what the Statesman-Journal describes as “non-life threatening injuries.” The driver and passenger in the other car – the one Rico sideswiped – were not injured.

The Oregonian reported that OSP officials are still trying to determine “if safety belts were used by those involved in the accident.” It adds that Highway 97 “was closed in both directions for two hours after the accident while emergency responders treated the injured.”

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A circuit court ruling issued at the end of last month has the potential to offer significant protections for Oregon families considering wrongful death claims related to Oregon nursing home abuse and neglect or medical malpractice.

The case, formally known as Bradley v Sebelius, turns on a wrongful death claim in Florida. After Charles Burke died in early 2005 his ten surviving children sued the nursing home where he had lived prior to his final hospitalization claiming that the nursing home’s negligence led to the infection that eventually killed their father. The case was settled out-of-court without reaching trial, with the nursing home’s insurer agreeing to a claim of $52,500 – the maximum that the home’s liability insurance policy would allow.

At that point, however, Medicare stepped in demanding that around half of the total settlement be remitted to the government to reimburse Medicare’s expenditures for Burke’s hospital care prior to his death. A probate court ruled against Medicare, deciding that it was entitled only to a share of the wrongful death settlement and awarding the government $787.50. Medicare took the case to federal court and won at the district level. That decision has now been reversed by the 11th Circuit Court of Appeals.

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Three years after Ruby Larson wandered away from the assisted care home in which she was living, a Multnomah County jury this week awarded her family $875,000 in damages, finding Oregon negligence in the way the facility cared for her.

According to a report in The Oregonian, Larson’s family contended that the retirement community and its parent corporation were guilty of Oregon nursing home abuse and neglect, contending that the facility “failed to provide adequate care for Larson and prevent her from repeatedly wandering off.” The defendants replied that Larson was “a fiery, spirited and sometimes stubborn woman” who, in the words of the company’s attorney, “lived the life she wanted to live.” Apparently, that included regularly wandering away from the facility – including three times in the month before her final disappearance.

Though she disappeared in 2007, Larson’s body was not found until May of this year. According to the newspaper, a 4 year old searching for a lost cat discovered her skeleton, still clothed except for her shoes, in some bushes only a quarter-mile from the retirement facility.

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The NHL’s 2010-11 season opens at 9am PT tomorrow when the Carolina Hurricanes and Minnesota Wild face off in Helsinki, Finland, one of several Europe-based openers the league has planned. But when the Boston Bruins take to the ice against the Phoenix Coyotes in Prague, Czech Republic a few days later the specter of traumatic brain injuries will hang over the team in the form of their absent star center, Marc Savard.

As I noted in several blogs last spring, the concussion Savard sustained after a vicious hit to the head spurred interim rule changes while last season was still under way. After having the summer months to consider tweaks to those rules, the NHL recently announced that it is banning what are known as “blindside hits” to the head – like the one that took out Savard – according to the Reuter News Agency.

Speaking to reporters, however, NHL commissioner Gary Bettman noted that the new version of the rule is also designed to ensure that “some of the responsibility for player safety remains with the player being targeted,” according to the Reuters report.

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Regular readers of this blog know that I have been reminding Oregonians since last year of the importance of the Oregon distracted driving law that went into effect January 1. An ever-growing number of studies nationwide testify to the importance of concentration behind the wheel and the particular dangers posed by hand-held cellphones.

Last week saw a Portland car crash that highlighted these truths in an exceptionally ironic manner. According to a report on KPTV’s website a Portland driver who was talking on his cellphone rear-ended a police car. OK, it was an unmarked patrol car, not a marked cruiser. Still, if you are going to have an accident while violating the Oregon distracted law, getting collared because you hit a cop car does tend to make things look even worse.

According to KPTV the accident took place on I-205 near Foster Road early last Tuesday morning. The 70-year old driver of a Toyota was, according to police quoted by the TV station, heading south on the interstate while using his cellphone without a hands-free device when he rear-ended the police car as it cruised along at 55 miles per hour.

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Yamaha’s Rhino off-road vehicle is emerging as a target of significant personal injury lawsuits here in Oregon and elsewhere around the country, according to a recent article in The Oregonian. The paper notes that the Rhino, first introduced in 2003, is the subject of “about 700 injury and wrongful death claims” nationwide, including several in Oregon.

Only five such cases have gone to trial so far, and the company has won four of those (the exception was in Georgia), but, the paper notes, “Yamaha has quietly paid settlements in at least 40 Rhino cases, some on the eve of trial.” The paper’s reporting, which was compiled by the consumer watchdog organization FairWarning.org, also says the federal government’s Consumer Product Safety Commission “has received reports of 70 deaths in Rhino crashes.” An August 2009 CPSC news release notes that several models of the Rhino were recalled for repairs “in order to enhance stability and reduce the potential for rollover.” At the time of the recall the company also gave Rhino owners free helmets.

The company says the vehicles are safe, and that its winning record at trial proves it. Consumer advocates, according to The Oregonian, counter that the company has, until now, successfully cherry-picked cases it was likely to win: instances in which reckless driving appeared to have played a role in the injuries or deaths resulting from accidents involving Rhinos. A March 2009 CPSC report noted, however, that many of the more recent accident reports “appear to involve turns at relatively low speeds on level terrain,” according to The Oregonian.

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A Portland traffic accident last week that resulted in the death of a 54-year-old pedestrian is still under investigation by Oregon law enforcement authorities, according to The Oregonian and other local media. Though the police are reported to have issued no citations at the site of the accident, the incident raises the possibility of a Portland wrongful death claim.

According to The Oregonian, “Christopher Berard, of Southwest Portland, was crossing SW Barbur at SW Capitol Highway from east to west around 8:45 p.m. against the “Don’t Walk” signal” last Thursday when he was struck by a car headed south on SW Barbur.

Berard was transported to a nearby hospital following the Portland traffic accident, but subsequently died of his injuries, according to television station KPTV. Though the precise circumstances of the fatal Oregon car accident remain under investigation the driver of the car that struck Berard is cooperating with law enforcement, KPTV reports.

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