June 2011 Archives

Hyperthermia Second Leading Cause of Death as Adults Negligently Leave Children Unattended

June 27, 2011

"72 degrees and sunny is no way to die. Never leave your child alone in a car." This was the warning being distributed by Safe Kids USA along with the news that the 500th child has died from heat stroke - a record that is not to be celebrated. According to Safe Kids, an average of 38 heat-related deaths occurs every year. Sometimes parents and caretakers find it convenient to leave small children unattended in vehicles while they run into the store. Other times, leaving a sleeping child behind is purely an accident, and the fault of a distracted, but otherwise caring parent. But it is an oversight that can prove to be fatal during the hot summer months when a car with its windows rolled up becomes a steaming deathtrap and children's tiny bodies overload with heat.

Atlanta area personal injury attorneys recently learned of a tragic death close to home which resulted when a slumbering two year old was inadvertently left behind while daycare workers took other students on a field trip. The prolonged exposure to excessive heat overwhelmed her body and her body temperature climbed uncontrollably. It was two hours before anyone notice she was missing, but by then it was too late. Hers was the second such death in the metro Atlanta area in less than a month. On May 25, a five-month-old baby died after being left in a car outside of a Kennesaw daycare center.
Heatstroke occurs when a person's temperature exceeds 104 degrees F and their thermoregulatory mechanism is overwhelmed, says Safekids' Web site. A child's core body temperature rises three to five times faster than an adult's, making them more susceptible to heat stroke - even on a day with mild temperatures.

Here are some ways to guard yourself and your children against the dangers of a heat stroke:

• Thoroughly check all backseats of vehicles for sleeping children before exiting your vehicle and locking doors;

• Never leave small children alone in cars for extended periods of time. If anything, try not to leave them unattended at all;

• According to Safekids, there is no evidence that cracking the windows helps prevent the temperature in vehicle interiors from reaching dangerous levels. In fact, sunlight coming through car windows makes the car work like an oven. So never leave a child unattended in a vehicle, even with the window slightly open;

• If you see a child unattended in a vehicle, immediately call 9-1-1.

Administrator David Strickland, U.S. Department of Transportation's National Highway Traffic Safety Administration summed it up best. "There is no greater tragedy for a parent or caregiver than to suffer the loss of a child due to hyperthermia," he said. "It's vital that children never be left unattended in a vehicle and keys are kept out of a child's reach. We urge all parents and caregivers to make a habit of looking in the vehicle - front and back - before locking the door and walking away. If a child is missing, check the vehicle, including the trunk."

Huge Loss for Big Tobacco as FDA Calls for Graphic Warning Labels

June 24, 2011

There's no doubt that tobacco is a booming business - and products liability issues have no qualms about riding in on the coattails of success. Many consumers' complaints stem from the assertion that tobacco companies knew about and concealed the risks associated with smoking, and it certainly has been a quarter of a century since the U.S. has seen a significant change to its cigarette packs. The most recent alteration was in the 1980s and mandated a warning label - a small box with black and white text that could easily be overlooked.

Now, says the Associated Press, the Food and Drug Administration has released nine new warning labels that depict "in graphic detail the negative effects of tobacco use" and are sure to make the average consumer take a second look. Among the photos are: the corpse of a smoker, diseased lungs, teeth and gums and a mother holding her baby with smoke swirling around them. The accompanying phrases will serve to highlight the long-term effects of tobacco use, as will the inclusion of the number to a national quitting hotline. The graphic warning labels were required in a 2009 law that gave the federal government authority to regulate tobacco for the first time in our nation's history, and advocates against smoking, like the American Cancer Society, hope that it will effectively deter non-smokers from picking up the habit. It may have some major implications for personal injury litigation as well.

An experienced plaintiff's products liability lawyer knows that tobacco lawsuits are already very complex and difficult to litigate. For example, claims for personal injuries resulting from the use of tobacco products that relate to promotional or advertising communications or the adequacy of warnings are subject to the federal Cigarette Labeling and Advertising Act and must be brought under that Act rather than under comparable state law. Even more importantly, assumption of risk has long been a choice defense for tobacco companies and now that the warning on the pack is being made more prominent, it may become even more difficult to litigate such cases - especially when juries feel there were stronger contributing factors to the plaintiff's illness or are convinced that the plaintiff was made aware of the risks of smoking and chose to accept those risks.

Still, anyone harmed by tobacco products should not shy away from contacting an attorney about the legal rights and remedies available. These cases are very difficult and persons who pursue them should understand that they come with a great deal of risk. The defendants are unlikely to settle the case which will need to go to trial. In addition, parties should expect an appeal at the end of the trial. These factors should not necessarily deter persons from pursuing a case, but persons simply need to go into the litigation with their eyes wide open. Plaintiffs have been successful in pursuing these cases and, of course, the attorney generals of various states also were able to obtain substantial relief from the tobacco manufacturers.

Wrongful Death Suit Prompted by Boy's One-Story Fall in Mall

June 18, 2011

As a personal injury attorney here in Atlanta, Georgia, I'm of the opinion that there's a lesson to be learned from every case. The motto of the story I share today is fairly clear: Stick to the plans.

It was all there. The 2009 construction permits and blueprints for the elevator in the Massachusetts Mall called for the installation of barriers between the steps and the plexiglass divider. But there was no such barrier there this March when the momentum of the escalator pulled a 4-year-old boy between the gap and to his death while his parents and mall patrons looked on. Now, the mall, its owner, the construction company and the escalator corporation face a sweeping negligence lawsuit, according to The Boston Globe.

During my research, I found the escalator company is one that has come under fire before. In October of 2009, a faulty component of one of their escalator's at the St. Louis Blues Stadium is believed to have caused it to malfunction. Several steps buckled and collapsed into each other resulting in a three-story slide for some fans. Thirteen people were injured in that accident.

The Consumer Product Safety Commission estimates that falls like these cause 75 percent of the 6000 escalator injuries per year in the U.S., and, in many instances, these accidents could have been avoided. Take the unfortunate death of this young boy, for example. There were ample opportunities for the problem to be rectified. Over two years had passed since installation and following the accident, two escalator inspectors were suspended for repeated failure to report the oversized gap in the escalator. Retroactively, it's easy to identify the culprit when things like this happen but there are proactive steps you can take to protect yourself and your children as well.

Below are some escalator safety tips:

• Hold the hands of small children and do not allow them to sit or play on escalator steps;

• Do not lean against the handrail;

• Secure loose clothing before stepping onto an escalator. This includes scarves and long coats;

• Tie all shoes laces tightly;

• Note where the emergency shutoff button is before alighting;

• Avoid placing purses or packages on top the handrail;

• Always look ahead, stand in the middle of the steps and hold on to the handrail

Getting Judges More Involved in the Settlement Phase of Medical Malpractice

June 17, 2011

Equity. Fairness. Justice. All three are words long-associated with the aims of the Court. Never to be forgotten, especially in this economy, curbing costs has also jumped on the bandwagon. One pervasive method for curbing costs has been to encourage parties to reach settlements long before the trial phase. This holds especially true in the realm of medical malpractice, where increasing liability expenses have caused a sharp increase in medical costs. As a medical malpractice attorney, I have also seen the unncecessary prolonging of litigation involving injury victims.

Now, attorneys representing clients with medical malpractice claims may even have a way to expedite the settlement process. The New York Times reports that the new strategy, called judge-directed negotiation, invites judges to get involved with pushing for a settlement very early on. In the program, cases are assigned to a judge who has training in medical issues. That judge then holds frequent settlement conferences, often on a monthly basis and a nurse with legal training assists. Lawyers participating in the program are required to have the authority to settle.

Atlanta medical malpractice attorneys think it's wonderful to see new strategies emerging in this area of the law. For years, the issue of how to rein in the costs associated with medical malpractice has caused contention between lawmakers and interest groups. The only word of caution with this approach is that injured Plaintiffs should not be pushed to resolve a case before their total damages are clear or for an amount that is beneath the total settlement value of the case simply for expediency. In addition, when a defendant is denying liability, a case should not be resolved before the plaintiff has had an opportunity to fully explore liability issues that may impact the value of the case.

The New York Times notes that for now, however, the program has only been implemented in the Bronx, but a $3 million federal grant may allow for state-wide expansion. With judges actively pushing attorneys to reach agreements plaintiffs will be able to receive compensation years earlier. Years of litigation might also be bypassed, as well as the costs and expenses that often accompany such efforts. Of course, it is important the any judge involved in the process remain neutral, in the same manner as a mediator remains neutral when trying to resolve the matter.

Conceivably, this is a model that other states, such as Georgia and Mississippi, might consider adopting. Projections estimate that if adopted nationwide in some form, the program could save state courts upwards of $1 billion annually. I hope to see the program implemented on a wider scale before next year sees the end of the grant program the White House has enacted to service projects like this one. Public hospitals in Bronx, New York, say the program, coupled with other additions, may have already helped save $66 million in malpractice costs a year. This "cost" savings does point to a potential problem in the system. The only "cost" that should be saved is attorney's fees that are not incurred due to earlier settlements and not a reduction in the compensation received by the victims of malpractice.

Awareness Campaign Uses Skeleton Signs to Slow Down Drivers

June 16, 2011

Sometimes it takes a graphic image to incite people to do, or deter them from doing something. We've seen the strategy used in campaigns from everything to stopping consumers from smoking to striking fear in the hearts of drunk drivers. Now, one New York company has teamed up with New York City's Department of Transportation to use a similar method in an awareness campaign to reduce speeding. Of course, speeding is one of the primary causes of car accidents and is a major contributing factor in the seriousness of injuries in a pedestrian accident.

If a driver is following the speed limit when approaching the new two-paneled electronic matrix sign, the traditional image of a pedestrian will appear in the top panel, along with the driver's rate of speed. If the radar detects the driver is exceeding the speed limit, the pixilated image of a skeleton will appear in the bottom panel, along with an emphatic warning to slow down. Personal injury lawyers see cases everyday in which these signals may have made a difference.

The campaign was primarily inspired by the following statistic: When a pedestrian is struck at 30mph by a vehicle, there is an 80% chance they will survive. If a pedestrian is struck at 40mph, there is a 70% chance they will die. 10mph, a seemingly subtle difference while you are behind the wheel, is the difference between life and death as a pedestrian.

According to the New York Times, the campaign will hit the city's streets sometime this summer. Atlanta car accident attorneys wonder whether this unique tactic designed to curtail speeders is one that will be adopted in Georgia. Novel ideas are certainly needed. Georgia's Department of Transportation says that from 2000 to 2006 in Georgia over six million people were involved in a motor vehicle crash either as a driver or passenger or pedestrian. A majority of those accidents involved people who failed to yield to pedestrians while turning, or were speeding, texting or talking on cell phones, or otherwise distracted. For now, it seems that only time will reveal whether New York's plan turns out to be a success, or just yet another distraction.

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With Summer Comes a New Danger: Swimming Pools

June 15, 2011

1155272_pool_2.jpg"Just when you thought it was safe to go back in the water..."

As temperatures climb and children take to public pools in droves, so too does the rate of swimming accidents. Recently, for example, Gwinnett County firefighters in Georgia spent several hours working to free a child's arm from a swimming pool vacuum line. Fortunately, in this instance, family members were able to keep her head above the waterline until she could be freed from the concrete that encased the pipe. However, this isn't always the case.

As an Atlanta personal injury attorney, I know that an even more common, and often fatal, swimming accident involves suction entrapment. This occurs when a swimmer is ensnared by suction forces as water rushes out of the drain on the pool's floor. In some cases the swimmer, usually a small child, is held underwater until they drown. In other cases, rescue has been successful but children have incurred serious limb injuries.

Typically the owners and operators of pools and sometimes the maintenance workers or pool manufacturer may be held liable for accidents like these, especially with the passing of The P&SS Act in December 2007. Effective in December of 2008, all public pools and spas have been required to install anti-entrapment drain covers on single blockable drain systems. However, while this act gives certain consumers options after-the fact, prevention is always key.

A few pool safety tips:

• Always monitor your small children while in the pool area. Don't let flotation devices serve as your child's babysitter and never assume that they alone will prevent drowning.

• Consider sealing the drain. As an alternative you can install a drain cover or Safety Vacuum Release System (SVRS) on your private pool. These devices are specifically designed to prevent body suction entrapment.

• Secure long hair with hair ties or braids.

• Make sure that family members learn CPR and know how to swim. Accident victims tend to fare better if they receive help right away.


Death from fall from Hotel Window Causes Negligence Concerns

June 14, 2011

The young mother was still celebrating her 30th birthday when she and a few friends retreated to her 10th floor hotel room. What happened after they got there, however, is cause for conjecture. Perhaps, revved up from the day's festivities, the slight Atlanta resident and a friend began to tousle playfully while everyone looked on. Perhaps their antics led them across the carpeted floor and towards the room's floor-to-ceiling glass window. Maybe they simply leaned against the glass as they gave each other a farewell hug. Doubtless, though, for those in the room, time paused when the two went plunging through it and the casualties were tragic.

After the incident came many questions: Why did this happen? How did it happen? Will it happen again? And then, of course, for many Atlanta personal injury lawyers, there is the question of liability. In the wake of what many have called a "freak accident" the nation is wondering why a hotel chain that brings in millions of dollars worth of revenue annually didn't have shatterproof or tempered glass installed in its rooms. This question also plagues the father of one of the women, as he prepares to file suit against the hotel and its corporate owner.

The most obvious answer to that particular query is that, until a few years ago, hotels were not specifically required to use shatterproof glass, unless special circumstances existed. Hotels were always, however, required to ensure that their buildings could withstand normal ordinary use by hotel patrons. When the hotel chain acquired the building in 2008 and began renovations, it made sure that the structure complied with the current codes. To be addressed now is whether new windows were installed as well that would comply and, if so, whether they were negligently replaced.

Either way, hotel chains and businesses around the country should tune in as this case unfolds. Depending upon the outcome in court, perhaps they would even do well to heed the incident itself as a cautionary tale.

Study Reveals Way to Decrease Worker's Compensation Costs in Healthcare Industry

June 13, 2011

According to the Bureau of Labor Statistics, long-term care workers have the highest injury rates within the healthcare industry. In fact, statistics show that in 2009, long-term care facilities had 8.4 injuries per every 100 full-time workers. Moreover, the incidence rate for long-term care facilities is also higher than that reported in other health fields. A majority of these injuries are undoubtedly incurred by workers straining to manually lift and move patients. This number will only increase as the long-term healthcare industry continues to grow - leading to a parallel increase in costs expended on worker's compensation.

One method that many have used to curb these costs is to install mechanical lifts in the facilities, designed to assist employees with heavy lifting. Atlanta worker's compensation lawyers admonish that just purchasing and having lifts available is not enough to ensure that they are used and used correctly. The University of Maryland and the National Council on Compensation Insurance recently released a study that tested the impact of safe lifting programs on worker's compensation costs.

By surveying over 250 directors at various healthcare facilities across the country, researchers discovered that long-term care centers that implemented rigid policies regarding employees' use of mechanical lifts for patients performed better than those who did not.

Approximately 95% of facilities had powered mechanical lifts installed and about 80% used them regularly. An emphasis on safe lift programs seemed to lower worker's comp costs by decreasing the incidence of workplace injuries. Findings also showed that for-profit facilities have lower claim frequency and lower total claim costs than not-for-profits. Either way, making safe-lift programs a priority at long-term care facilities could be the key to reducing injuries and worker compensation costs.

New Research Reveals Possible Methods for Preventing Brain Damage Following Personal Injury

June 12, 2011

New research, published in The Journal of Physiology, may have provided a definitive answer to the question of whether a key molecule, 'KCC2' facilitates brain cell death after an injury or prevents it. The answer, which apparently indicates prevention, has prompted scientists to explore artificial production of the compound which could provide 'neuroprotection' to those who have suffered a brain injury, thereby preventing further injury to brain cells after an auto accident. All Atlanta personal injury attorneys welcome this development and the efforts of researches that may help hundreds of thousands of accident victims.

According to Dr. Igor Medina of the Université de la Méditerranée, "Neuron damage can result from acute events such as stroke, epilepsy or head injury or by chronic degeneration found in Alzheimer's and Parkinson's. When brain tissue is damaged, cells often continue to die after the initial stimulus has stopped. So it is important to find a way of stopping this cascade of cell death."

Furthermore, says Dr. Medina "Neuroprotective agents that may stem from this research would benefit the victims of car crashes, stroke[s], and those suffering with epilepsy, Parkinson's, and Alzheimer's - it is a major focus for further studies," said Dr Medina."
Auto accidents can cause severe, debilitating and permanent injuries, including injuries similar to those described above. Atlanta car accident attorney support the research of KCC2, as it provides them with more and better methods to help clients maneuver through the issues that often arise after an accident.

KCC2 is a 'neuronal membrane transporter' that helps to regulate brain cell growth. Research has shown that levels of KCC2 drops dramatically after brain injury, and now it appears that this drop actually can help decrease the damage done to the cells. It was discovered that damaged cells perished when the molecule was removed altogether. Conversely, when levels of KCC2 were artificially increased in the brain, the damaged cells were protected from further damage, and even death.


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Recall of Toy Helicopters Highlights Hazards to Children - Product Liability Claims Likely

June 11, 2011

In a fairly major nod towards products liability issues in the toy industry, the Consumer Product Safety Commission (CPSC) and Health Canada are warning consumers about toy helicopters and parts with model numbers BLH350, BHL3500 and BHL3514 that were sold at retailers during March of this year. As an Atlanta personal injury lawyer, I know that the reality of this recall is that children have suffered an injury.

Toy safety is a pervasive issue for concerned parents that continues to rear its ugly head. Dangers come in all forms - from faulty or too small parts to hazardous toxins and chemicals. Over the past 25 years, the Public Interest Research Group (PIRG) has helped to identify many of these risks. Their efforts, the efforts of similar organizations, and an unprecedented amount of toy recalls and injuries undoubtedly helped drive Congress to make a more substantial and overt move towards rectifying the situation.

In this particular case, approximately 18,000 sold in the United States and Canada are being voluntarily recalled because they pose potential impact and laceration hazards. There have been 312 reports of the rotor blades of these models being released from the motor head. 34 of those incidents resulted in a user being struck, and another 12 resulting in lacerations to a user's person, according to the CPSC.

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Disturbing Trend towards Inflatable Mishaps Should Lead to More Regulations

June 10, 2011

Jump houses come in all forms and cater to children's imaginations: slides, castles, ships, even obstacle courses. They offer parents much needed respite during outdoor playtime and are a popular item at parties. However, as a personal injury attorney in Atlanta, I know that, on breezy afternoons, they can also come with many perils. An accident this summer hammered home these little-known hazards when a gust of wind suddenly sent three inflatables at a youth soccer tournament soaring into the air - with children inside. According to the Associated Press, a mother was seriously injured when one landed on her, but the children only suffered minor bumps and bruises.

An AP interview with Jim Barber, a spokesman for the National Association of Amusement Ride Safety Officials, revealed that accidents like these happen all the time. In fact, the situation is so severe that in 2001, the Consumer Product Safety Commission came out with a bulletin on how to safely operate inflatable products. A 2005 report linked the growing popularity of inflatables with an increasing number of injuries treated at hospital emergency rooms from 1997 to 2004. One of the best manners of determining a safety issue with a product is to evaluate the number of emergency room visits that result from the use of the product. An increase in emergency room visits over a 7 year period of time points to a real issue with inflatables.

Interestingly enough, the real problem may not be with the huge toys themselves, but with the people who supervise them. Guidelines for carnival, fair and amusement parks rides are fairly strict, but bouncy houses are usually not included in this category. Many states lack regulations that monitor the training requirements for handlers and operators. This is, I think, because such laws are created at the state level and many legislators are not yet aware of the real problems posed. Perhaps this incident, and the media attention it's garnering, will be the catalyst that inspires lawmakers to take a closer look at what can be done to ensure the safety of our children.

I think there are several things that can be done statutorily and with regulations to improve safety in this area. First, states need to pass a law that requires operators and installers of inflatables to become licensed. In order to become licensed, a person installing these devices would need to undergo a safety instruction course that explains their proper installation from an independent third party. Second, states need to pass regulations that address the manner in which inflatables are anchored. The problems often arise due to the failure of the installer to properly secure the inflatable to the ground. Third, a review does need to occur with respect to the design of these devices. The amount of anchorage needs to be tied to the weight of the inflatable. In the end, whether it's the children inside or the innocent bystander, persons will be injured if the states fail to take action to make sure inflatables are safe.

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