Tuesday, May 22, 2012

Can A Text Messager Be Liable For Sending Texts To Driver?

Nobody would argue that people who text and drive and cause a collision are negligent and should be held accountable for the injuries they cause. In fact, I have argued that to text and drive may well be reckless conduct that could warrant punitive damages against the offending driver.

But should the person who is texting the driver also be held legally liable if the "texter" knows the "textee" is operating the vehicle? A New Jersey lawsuit will examine this issue.  My guess is that this lawsuit will be thrown out and it should be, in my opinion, despite my sympathy for the motorcyclist and passenger who both lost a leg as a result of the crash.

Every driver under Ohio law and the law of every other state is obligated to use "reasonable care" under the circumstances. If you don't use reasonable care while driving, you are negligent. But you are legally liable for harm only if that negligence directly causes injury. Certainly, it is foreseeable that texting while driving will increase the liklihood of a crash because of the distracting nature of texting.

I'm sure the victims' attorney will argue that it was equally foreseeable to the texter that to continue to send messages to a driver also increases the same liklihood of a crash. But here's where the parallel ends.  What distinguishes the texter from the driver in this case is the element of control, or better yet the lack of control over the vehicle or the driver. Nothing prohibits the driver from turning off the damn phone, ignoring the text, or pulling over to respond. By consciously choosing to ignore safety and continuing to respond to messages while driving, it is the driver's actions that have directly caused the injuries, rather than the texter's.

At least that is how I see it. Sometimes you gotta "call em as you see em," even if it means the insurance companies will prevail on this one.  

Monday, May 21, 2012

The Vexing Problem Of Retained Instruments After Surgery

A medical technology company is developing radio frequency identification technology to assist surgical teams in detecting surgical sponges. At first blush this is not breaking news, but it illustrates a much bigger reality about our medical system.

For years, surgical items like sponges, towels, clamps, foreceps, gauze, and countless other items have been left in patients. Although estimates of this occuring varies, the larger point is obvious: despite all the best hospital protocols, rules, and policies requiring accurate counting of surgical instruments, "stuff" left inside patients' bodies continues to happen, as evidenced by continuing efforts to develop technology to overcome human error. But as safety technology is evolving, the obvious question is: WHY does this continue to happen?

After all, aren't hospitals accredited by organizations who scrutinze their patient safety? Of course. And don't they grant privileges to only the best surgeons who are vetted by the hospital credentialing committees? Presumeably. So how do retained surgical objects continue to happen in "Groundhog Day" fashion and fuel the ongoing need for new technological breakthroughs?

Simple. The practice of medicine is a volume business. Time is money, and patients are frequently a cog in a wheel of a continuing production schedule where medical decisions are often influenced by issues extraneous to what is best for the patient---like having the time to count objects. This is no great revelation to patients. As an analogy, just ask anyone who experienced a loved one discharged too early because of "reimbursement issues," despite what they were told by the medical team.  When something as simple as counting what goes in and what leaves the body is subject to repeated error, it is symptomatic of a larger problem.

We hear over and over that we have the best medical delivery system in the world and this is largely true. But leaving anything behind is 100% preventable and should never happen--no exceptions. In a time where politicians and the medical profession decries medical malpractice lawsuits, it is time to recognize that cases involving retained surgical objects prove an unassailable truth: a major cause of malpractice lawsuits is malpractice. And the easiest way to prevent these lawsuits is to decrease malpractice.

Monday, May 7, 2012

Negotiating With The Adjuster On Your Personal Injury Claim--Don't Do This

     It's one of many traps you can fall into when dealing with an insurance company on your own after an auto acccident. But this one is particularly easy to set and spring on you.


Potential client calls. Her statute of limitations is about to expire in 4 days. She's been dealing with the at fault driver's insurance company for almost two years now. After considerable delay, she finally speaks with the adjuster. The adjuster asks the magic question, the one learned at adjuster training 101: "What is it going to take to settle your case?"


In fact, it is more than magic--it is the PERFECT question to ask an unsuspecting auto accident victim because it is a win-win for the adjuster for two reasons. First, the adjuster is getting a commitment from you without ever revealing the insurance company's hand. Second, no matter what your response is, 99.99% of the time their response will be: "We can't pay that kind of money, so what are you REALLY looking at to resolve your auto claim?" At which point, most folks will reveal exactly what that figure is...

Bottom line: in the course of a few minutes, you've bid against yourself and revealed your bottom line and the adjuster hasn't given you anything in return. It's the equivalent of taking a hammer and whacking yourself with it a couple times. After going round and round with the adjuster, the potential client finally blurted out a money demand that was artificially high but at least gave her enough room to negotiate. Thankfully, she did not reveal her bottom line. But she got nowhere near what she should have been offered, and now I'll be handling her claim through a lawsuit.

But others fare less well. Sometimes the injured person makes so many negotiating mistakes that I can't unspring the trap.