Personal Injury and Social Security Disability Blog

Tougher Driving Laws in Texas – Especially for Teens

Tomorrow, September 1, 2009, is the day quite a few new laws go into effect in Texas. Several of these laws will directly apply to vehicle drivers and passengers, and all Texans should be aware of them. The goal of each of these new laws is to increase safety on our roads and highways, and to decrease the number of car wrecks and serious injuries. Here is a brief summary of a few of the most important vehicle laws as excerpted from the Dallas Morning News:

Buckle your seat belts – it could be a bumpy Tuesday as new driving laws go into effect that will toughen the rules of the road, especially for teenagers.

Foremost, you will need to climb into the back and pull those buckles out from between the seat cushions. For the first time in Texas, all passengers will be required to wear a seat belt – not just those in the front seat or younger than 15.

While you're back there, secure a car seat for any child younger than 8. Currently, only children 4 and younger have to be in a safety seat.

And if you want to talk about these changes, don't do it on a hand-held cellphone in an active school zone. As of Tuesday, cellphones in school zones will be banned statewide.

State lawmakers have been loath to mess with Texans and intrude on the inner-sanctum of their autos. Texas was one of the last states to pass safety belt requirements – waiting until 1985 – or an open-container law – not until 2001.

The Legislature's reluctance to go further, especially to prevent drunken driving, is lamentable because those proposals could have saved even more lives, said Bill Lewis, a lobbyist for Mothers Against Drunk Driving.

Texas leads the nation in alcohol-related driving fatalities, and 39 states already have sobriety checkpoints.

MADD did score one change in the law: Police who stop drunken-driving suspects and find they have a drunken-driving record will be allowed to require a blood test, improving the chances of a later conviction.

But most new laws are aimed at young drivers, and those who study teen drivers are happy about the changes.

Drivers younger than 18 can no longer use a cellphone to talk or text while driving.

Bernie Fette, a researcher at the Texas Transportation Institute who specializes in teen driving, said a 16-year-old is five times more likely to be involved in a fatal crash than any other age group.

He said that while parents and programs drill on drinking and driving and wearing a seat belt, the most dangerous activities for Texas teens are night driving and speeding.

Starting Tuesday, the prohibition against drivers younger than 18 being on the road between midnight and 5 a.m. will be extended from six months to one year after they get their license. Also extended is the law prohibiting young drivers from having more than one person younger than 21 in the car with them.

Federal highway statistics for 2008 show that of the 3,382 Texans killed in traffic accidents that year, 951 weren't wearing seat belts.

The Texas Safe Riders program (1-800-252-8255) can direct low-income residents on how to get free car seats by attending a one-hour safety program in their community, said program manager Johnny Humphreys.

The program distributed 10,000 car seats last year, he said.

NEW RULES OF THE ROAD

Seat belts: All vehicle occupants must be strapped in. Violations are subject to fines up to $200.

Child car seats: Any child younger than 8 – unless they are taller than 4 feet 9 inches – must be in a safety seat. Only warning tickets will be issued until June 1, after which fines of $25 will be imposed.

Cellphones: No one younger than 18 can use a cellphone while driving. No one of any age can use a cellphone in a school zone, unless it's to make an emergency call, the vehicle is stopped or a hands-free device is used. Fines will be up to $200.

Insurance: Driving with a suspended license or without insurance gets more costly – up to 180 days in jail and fines up to $2,000. So does driving without a valid license or uninsured and causing injury or death in an accident – up to a year in jail and a maximum $4,000 fine.

Licensing: For those younger than 18, a driving skills test will become mandatory to get a license. Also, the prohibitions against driving from midnight to 5 a.m. or driving with more than one person younger than 21 (unless a family member) are extended from six months to one year after obtaining a license.

Motorcycles: Proof that a certified training course has been completed will be needed to get a license. No passengers younger than 5 can ride. Fines are $200.

DWI: Police can draw blood from drunken-driving suspects if records show a history of DWI offenses. Such drivers cannot refuse the test.

Social Security to Test Use of Microsoft’s HealthVault in Disability Process

Michael J. Astrue, Commissioner of Social Security, announced Thursday that the agency has entered into an agreement with Microsoft to test the use of Microsoft’s HealthVault application in the disability process.  HealthVault is a free online service that enables people to gather, store and manage their families’ health information, and share that information with their physicians and healthcare providers.  These “personal health records” contain the same types of information that Social Security generally obtains from people applying for disability benefits.

“The use of personal health records holds great promise for ensuring that the medical information we collect from someone applying for disability benefits is accurate and complete,” Commissioner Astrue said.  “Combined with other advancements in health information technology, our use of HealthVault should result in faster decisions for disability applicants.  I look forward to working closely with Microsoft, a world-wide leader in information technology.”

Social Security and Microsoft are developing a technical prototype connecting the two organizations that will be available later this year.  The agency also will collaborate with Microsoft to study current personal health record standards, gaps in those standards, and options for filling those gaps.

Social Security is a recognized leader in the use of health information technology.  It is the first government agency to use the Nationwide Health Information Network (NHIN), a safe and secure method for receiving instantaneous access to electronic medical records.  The NHIN is an initiative of the Department of Health and Human Services and is supported by multiple government agencies and private sector entities.

From Social Security Administration press release.

Gruesome and Graphic Cigarette Warnings Coming Soon?

HealthDay News is reporting on the possible changes to cigarette packages under new U.S. regulations contained in the Family Smoking Prevention and Tobacco Control Act. These regulations apparently will require manufacturers to devote a large percentage of the front and back of packs of cigarettes to graphic images of the damage smoking can do to a person. Here are some excerpts from the HealthDay News article:

Would a gruesome picture of a cancer-ravaged mouth with rotting teeth make you think twice about buying a pack of cigarettes?

That's the goal of new federal regulations expected to go into effect within three years. The rules will require tobacco companies to cover at least half of the front and back of packages with graphic -- and possibly gruesome -- images illustrating the dangers of smoking.

If U.S. regulations are modeled after those already in place in Canada and other countries, the warnings will be shocking: blackened lungs, gangrenous feet, bleeding brains and people breathing through tracheotomies.

Though hard to look at, the more graphic the image, the more effective in discouraging smoking, said Stanton Glantz, a professor of medicine at the University of California, San Francisco and director of the university's Center for Tobacco Control, Research and Education.

"The graphic warnings really work," Glantz said. "They substantially increase the likelihood someone will quit smoking. They substantially decrease the chances a kid will smoke. And they really screw up the ability of the tobacco industry to use the packaging as a marketing tool."

Under the law, the FDA has two years to issue specifics about the new graphic warnings tobacco products will be required to carry. Tobacco companies then have 18 months to get them onto packages.

With much at stake for tobacco companies, there will be much wrangling over the details, Glantz said.

Yet research shows the FDA shouldn't compromise, Glantz said. The more frightening the image, the greater the anti-smoking effect, he said.

Despite some research that has suggested images that are too stomach-turning may backfire because people eventually ignore them, new research is showing the most graphic images pack the most punch, said Jeremy Kees, an assistant professor of marketing at Villanova University.

In a yet-to-be published study, Kees had 541 adult smokers in the United States and Canada view a mild image of a smoker's mouth with yellowed teeth; a moderately graphic image of a diseased mouth; and a third photo of a grotesque, disfigured mouth.

The most disturbing photo evoked the most fear, prompting more smokers to say they intended to quit, Kees said.

While the new regulations may also include no-nonsense, text warnings such as "Smoking Makes You Impotent" and "Smoking Kills," the images will have the broadest reach, Hammond said.

Non-English speakers can understand the picture of a diseased mouth, as can people who are illiterate. Smokers tend to have lower literacy levels, Hammond noted.

And kids will get the message too, potentially stopping them from ever lighting up. "You have 4-year-olds and 5-year-olds who can understand that picture," Hammond said.

Elsewhere, graphic warnings seem to be helping to drive down smoking rates. In Canada, about 13 percent of the population smokes daily, a 5 percent drop since the graphic warnings were adopted in 2000, Hammond said. About 21 percent of the U.S. population smokes daily, according to the U.S. Centers for Disease Control and Prevention.

Chrysler Will Accept More Product Liability Claims

In an announcement that is good news for injury victims, Chrysler said it will accept product liability claims in a broader number of cases than originally planned in its reorganization under bankruptcy protection. The story was reported by the Associated Press. Here are excerpts:

The automaker said it will now consider product-related lawsuits from consumers involved in accidents that occurred after Chrysler emerged from bankruptcy protection in June that involve vehicles manufactured by the old company. A company spokesman said the changes do not include product liability claims filed before the company's April 30 filing.

Consumer groups and individuals with product-related lawsuits contested a condition of the Chrysler sale to Italian automaker Fiat Group SpA that would release the company from product liability claims related to vehicles it sold before the asset sale.

Compensation for such claims would have had to come from the parts of the old company not sold to Fiat. But those assets have limited value and would be unlikely to have anything to pay out.

Joanne Doroshow, executive director of the Center for Justice and Democracy, said Chrysler had "responded to pressure from injured victims and consumer groups and we commend them for taking this important step to protect public safety."

Doroshow said that "while this decision is a victory for consumers, there are still hundreds of people who were injured before the bankruptcies by defective Chrysler and GM vehicles that still have no recourse because the companies continue to take no responsibility for pre-bankruptcy deaths and injuries."

Growing Use of Medical Imaging Tests Poses Radiation Risk

The New York Times reports, "At least four million Americans under age 65 are exposed to high doses of radiation each year from medical imaging tests," according to a study appearing in the New England Journal of Medicine. Researchers also found that an estimated "400,000 of those patients receive very high doses, more than the maximum annual exposure allowed for nuclear power plant employees or anyone else who works with radioactive material."

The AP reports that "researchers found about 20 percent were exposed to moderate radiation doses and two percent were exposed to high levels." The work "did not directly address whether medical imaging is being overused, but some doctors are concerned that advanced tests like CT scans are being over-prescribed, and that evidence of their value in certain situations is lacking."

In an accompanying editorial, Dr. Michael Lauer, director of the division of prevention and population sciences at the National Heart, Lung and Blood Institute, said that "trials of the efficacy of such testing should be conducted before their use is expanded further," the Los Angeles Times Booster Shots blog reported. Lauer added that "there is no evidence that it increases survival."

The researchers noted that "these tests not only have a cost in terms of the dollars, but also in terms of the radiation," adding that "those situations when there's not a clear indication for the tests is the issue here," Bloomberg News reports.

From the American Association for Justice news release.

Friday Fun

Here's the follow-up to last week's Friday Fun. This one is movie actresses. Try to name them as they appear.

Tort Reform Would Remove Check on Medical Malpractice

My friend Herb Friedman has an excellent column in the Lincoln Journal Star saying that tort reform in medical malpractice claims would remove the checks currently in place on medical treatment.

Friedman states, "Malpractice amounts to less than 2 percent of health care spending, according to the Congressional Budget Office. The CBO has estimated that even a reduction of 25 to 30 percent in malpractice costs would lower health care costs only 0.4 to 0.5 percent." "Do not be misled. If the civil justice system is destroyed through 'tort reform,' there will be no check on misconduct and no compensation for those who are injured." Here is Herb's article:

This month, the health care debate has dominated the headlines. It is clear that our current system of health care is dysfunctional. Costs are spiraling out of control and proper health care is often beyond the reach of the average citizen.

Congress and the White House will have to sort through the mountains of facts and factions, and attempt to cure this social disease that is an embarrassment to the wealthiest nation on the planet.

While this debate is raging, those opposed to health care reform are again championing what they misrepresent as "tort reform." "Keep the lawyers out of the operating room" has been the battle cry in many sound bites.

This issue should be placed into proper focus. Malpractice amounts to less than 2 percent of health care spending, according to the Congressional Budget Office. The CBO has estimated that even a reduction of 25 to 30 percent in malpractice costs would lower health care costs only 0.4 to 0.5 percent.

The National Center for State Court estimates that only 6 percent of state cases involved tort claims and of that amount only 3 percent of those cases involved medical negligence claims. A study done in Texas, a state with draconian malpractice laws, showed that from 2000 to 2006 the amount collected in premiums escalated by 120 percent while the amount paid for claims decreased by 14 percent. The Institute of Medicine's 1999 study estimated that the sixth-leading cause of death in the United States was preventable medical errors. William Sage of the University of Texas commented, "… The major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated."

Malpractice insurance companies have long taken the position that malpractice claims will be vigorously defended. The out-of-pocket expenses connected with these claims can reach $50,000 in the blink of an eye. Few lawyers are willing or able to take these cases. No case is taken unless the damages are catastrophic and experts are willing to testify that providers have fallen below the reasonable standard of care. Of the few cases that are taken and actually end up in trial, the overwhelming majority result in defendants verdicts.

In Nebraska, there is a cap on damages for such cases, which is woefully inadequate. Many clients cannot find competent counsel because the cap is too low to justify the investment in the case. The Nebraska Supreme Court has even suggested that the cap might be unconstitutional.

And Nebraska is not alone; many states now have some type of limitation on medical negligence claims. The result has provided neither better medical care nor lower malpractice premiums. The Government Accountability Office, in a 2003 study, found that in non-cap states there were more physicians per 100,000 population than in cap states, and in fact the costs of malpractice insurance premiums were higher in cap states than in non-cap states. Go figure.

The insurance industry already has all but gutted the right of people to go to court if they are the victim of medical negligence. The idea is not reform but total destruction of the system that has been a vital part of our system of government since colonial days.

The civil justice system only provides access to the courts for wrongs committed. Judges and juries render the results based on law and evidence. It has provided a check on misconduct since the republic was founded. Civil lawsuits have forced Big Tobacco to compensate victims of smoking, Big Auto to make safer cars and Big Mac to stop serving coffee so hot it burns the flesh off of its customers. The system works well. The only complaint comes from those who have to pay for their misdeeds.

Do not be misled. If the civil justice system is destroyed through "tort reform," there will be no check on misconduct and no compensation for those who are injured.

Shakespeare is often misinterpreted when Dick the Butcher in Henry the VI says, "The first thing you do is kill all the lawyers." This famous remark by the plotter of treachery meant the surest way to chaos and tyranny, even then, was to remove the guardians of independent thinking, the lawyers.

Herb Friedman is the past president of the Nebraska Association of Trial Attorneys.

Strangulation Deaths Prompt Recalls of Roman Shades and Other Window Coverings

The Consumer Products Safety Commission has issued recall announcements of several types of window shades because of the risk of strangulation. These recalls are important for all parents of small children to understand. Here is a summary from the CPSC:

Strangulation Death of a Child Prompts Recall To Repair Window Blinds By Vertical Land
In cooperation with the U.S. Consumer Product Safety Commission (CPSC), Vertical Land Inc., of Panama City Beach, Fla., is voluntarily recalling about 15,400 horizontal blinds, 16,400 vertical blinds, 800 Cellular Shades. Horizontal Blinds: The blinds do not have inner cord stop devices to prevent the accessible inner cords from being pulled out. If an inner cord is pulled out, a child can become entangled in the loop and strangle. Vertical Blinds: Strangulations can occur if a child’s neck becomes entangled on the free-standing loop formed by the bead chain or by the cord with a weighted device. Cellular Shades: Strangulations can occur if a child’s neck becomes entangled on the shade’s free-standing looped cord.

Risk of Strangulation Prompts Recall to Repair Roller Shades by Lutron Shading Solutions
In cooperation with the U.S. Consumer Product Safety Commission (CPSC), Lutron Electronics Co. Inc., of Coopersburg, Pa., is voluntarily recalling about 245,000 Roller Shades. Strangulations can occur if the shade’s looped bead chain is not attached to the wall or the floor and a child’s neck becomes entangled on the free-standing loop.

Risk of Strangulation Prompts Recall to Repair Victoria Classics Roman Shades; Sold Exclusively by Target Stores
In cooperation with the U.S. Consumer Product Safety Commission (CPSC), Victoria Classics of Edison, N.J., is voluntarily recalling about 163,000 Thermal Sailcloth and Matchstick Bamboo Roman Shades. Strangulations can occur when a child places his/her neck between the exposed inner cord and the fabric on the backside of the blind or when a child pulls the cord out and wraps it around his/her neck. Exposed operating cords can knot or tangle creating a strangulation loop.

Near Strangulation of Children Prompts Recall of Roman Shades; Sold Exclusively at Pottery Barn Kids
In cooperation with the U.S. Consumer Product Safety Commission (CPSC), Pottery Barn Kids/Williams-Sonoma, Inc. of San Francisco, Calif., is voluntarily recalling about 85,000 Roman Shades. Strangulations can occur when a child places his/her neck between the exposed inner cord and the fabric on the backside of the blind or when a child pulls the cord out and wraps it around his/her neck.

Near Strangulation Prompts Recall of Roman Blinds; Sold Exclusively at IKEA
In cooperation with the U.S. Consumer Product Safety Commission (CPSC), IKEA Home Furnishings, of Conshohocken, Pa., is voluntarily recalling about 120,000 MELINA Roman Blinds. Strangulations can occur when a child places his/her neck between the exposed inner cord and the fabric on the backside of the blind or when a child pulls the cord out and wraps it around his/her neck. The Roman blind has a continuous looped bead chain that when not attached to the wall or floor, hangs loosely by the blind, posing a strangulation hazard to children.

Strangulation Deaths of Children Prompt Recall to Repair of Roll-Up Blinds and Roman Shades by Lewis Hyman Inc.
In cooperation with the U.S. Consumer Product Safety Commission (CPSC), Lewis Hyman Inc., of Carson, Calif., is voluntarily recalling about 4.2 million ¼” Oval Roll-up Blinds and 600,000 Woolrich Roman shades. Roll-up Blinds: Strangulations can occur if the lifting loops slide off the side of the blind and a child’s neck becomes entangled on the free-standing loop or if a child places his/her neck between the lifting loop and the roll-up blind material. Roman Shades: Strangulations can occur when a child places his/her neck between the exposed inner cord and the fabric on the backside of the blind or when a child pulls the cord out and wraps it around his/her neck.

Aetna Tightens Reimbursement Policies for Hospital "Never Events"

Modern Healthcare reported, Aetna has "established new, tighter policies" to constitute whether it will pay for "medical care related to errors made by providers." Under the policies, Aetna has "broken errors into two categories: 'never events'-- three events involving surgery: wrong patient, wrong site and wrong procedure -- and 25 serious reportable events as defined by the National Quality Forum. Providers will not be reimbursed for a case involving one of the three never events." Of the 25 reportable events, "eight will be reviewed by Aetna to determine whether reimbursement should be withheld." The rest of the events will also be reviewed, "but they will not be considered eligible for adjustments to reimbursement," an Aetna spokesperson explained. Additionally, Aetna will require providers to also "report the errors to the Joint Commission, a state reporting agency, or a patient-safety organization."

From the American Association for Justice news release.

Health Care - Tort Reform Is Not The Answer

In a column in the Baltimore Sun today Jay Hancock discuss some of the myths about health care reform. One is that "tort reform" would significantly cut the costs of medical care in the United States. His conclusion is that it would make little difference. Here are the relevant paragraphs from his article:

"Why is it ... in this grand health care debate we hear not a word about one of the worst sources of waste in American medicine: the insane cost and arbitrary rewards of our malpractice system?" syndicated columnist Charles Krauthammer asked last month.

Actually we hear plenty about tort reform - fixing the laws pertaining to medical malpractice and other personal injury. Talk radio is full of it. Krauthammer wrote about it again this month. I get reader e-mails all the time asking the same question.

There's lots to talk about. Malpractice awards and "defensive medicine," in which doctors over-scan and over-treat patients to fend off lawsuits, cost tens of billions a year.

Trial lawyers bring dubious cases along with deserving ones. Juries deliver nonsensical verdicts. Every few years, malpractice insurance costs drive neurosurgeons or obstetricians to retire, move to other states or otherwise withhold badly needed care.

There is nothing about tort reform in the Democrats' health care legislation. No accident there. Trial lawyers give millions to Dems and hardly anything to Republicans.

But tort reform is not the solution to the health care crisis. The absence of tort reform is not a reason to reject what's going on in Washington.

"Tort reform as discussed in the United States would probably have very little impact," says Gerard Anderson, a professor at the Johns Hopkins Bloomberg School of Public Health. "The states that have enforced tort reform have about the same amount of litigation - and the awards are comparable - as states that don't."

A more drastic malpractice makeover would deliver substantial gains - but only once. New Zealand has a no-fault medical injury system in which lawsuits are essentially banned and experts decide how much to award victims. But even such a system, which nobody is talking about in the United States, would cut health care costs by maybe 7 percent at the most, Anderson said.

That includes costs from defensive medicine. At a time when employers and patients often see medical costs rise by double-digit percentages every year, 7 percent is a footnote.

The nonpartisan Congressional Budget Office, as usual the best source for this kind of analysis, says malpractice costs make up only 2 percent of health care spending. "The evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect," the CBO says.

Even WellPoint, the insurance giant whose CEO likes to complain about malpractice lawsuits, says litigation and defensive medicine "are not considered a recent significant factor in the overall growth of health care spending."