Total Injury

While advances in genetic testing have allowed people to get a better picture of their health by catching and treating health conditions sooner rather than later, it also comes as no surprise that insurance companies have used genetic testing as a means to deny coverage to people with preexisting conditions. Thanks to legislation which recently passed the U.S. Senate, health care discrimination based on genetic testing would be banned, leaving insurance companies to find another way to save a buck at the expense of the public's health:

● Congressional Bill Prevents Health Care Discrimination based on Genetic Testing.

After much debate and its sunset on October 1st, Florida's personal injury protection (PIP) law requiring all drivers to have PIP coverage on their car insurance was brought back to life yesterday. Florida Governor Charlie Crist signed the PIP legislation on Thursday morning and finally resolved, at least for the moment, what had been one of the most pressing personal injury issues in the state this year.

Under its old law, Florida required drivers to carry PIP, which essentially covered up to $10,000 of medical expenses sustained in car accidents, regardless of who was at fault for the injuries. This no-fault law had sparked much debate between auto insurance companies and health care specialists.

Auto insurance companies had claimed that the old PIP system was wrought with fraud and that consumers would ultimately be the ones who'd suffer with higher car insurance rates. Doctors and health care providers challenged these claims, saying that the auto insurance companies were merely trying to pass on their costs to another sector.

Legislators could not come to an agreement on the Florida PIP law, which ceased to be at the beginning of this month. However, at Crist's urging, the legislators came to a quick proposal on Florida PIP in a special legislative session.  

The new law will not only reinstate Florida's PIP law on January 1st of next year but also try to curtail instances of PIP fraud. With that said, Florida drivers involved in car accidents could be subject to a tort system establishing fault for the rest of the year.

 There are roughly 700 car accidents in Florida each day, and as many as 300,000 PIP policies could expire before January. Florida motorists are urged to contact their insurance coverage agent with any questions about PIP in the meantime.

With Little League and Babe Ruth baseball leagues in action throughout the country, a Pennsylvania legislator would like to see a ban on the use of aluminum bats in youth and high school games. State Representative Mike Carroll has introduced legislation mandating such a ban with the goal of preventing serious injuries. Carroll said in a Pocono Record story that lightweight, aluminum bats pose greater threats than wooden bats since they cause the ball to travel faster and farther. Carroll added that severe accidents and injuries are just waiting to happen with the use of aluminum bats. Major League Baseball does not use aluminum bats for safety reasons.

With similar intentions as this Pennsylvania legislation, the New York City Council will ban the use of metal bats in high schools beginning this September. The Pocono Record story added that nearby New Jersey is considering similar legislation as in Pennsylvania while Montana’s American Legion teams have banned the use of metal bats after a pitcher was killed by a line drive off of an aluminum bat. We’ll keep you updated on this legislation in Pennsylvania and New Jersey.

In recent weeks, The Injury Blog has detailed the debate surrounding the Florida Personal Injury Protection (PIP) law requiring drivers in the state to carry up to $10,000 in personal injury insurance for car accident injuries. Last Friday, state legislators failed to extend this personal injury law, which will officially expire on October 1^st unless the issue is taken into consideration during a special legislative session in June.

This Florida No Fault Law required drivers to purchase the PIP coverage, which would pay up to a maximum of $10,000 in coverage for car accident injuries, regardless of who caused them. Auto insurance companies had been arguing for the death of this Florida personal injury protection law because of what they said were large cases of fraudulent claims. A recent Insurance Journal story indicated that such a move could save insurance companies more than $350 million in payments to hospitals, doctors and clinics treating car accident injuries.

Proponents of this Florida personal injury protection law have warned about the possible ramifications of if it expired, including the fact that 40 percent of car accident victims in the state have no form of health insurance coverage besides mandatory PIP. The Florida Hospital Association warned that getting rid of Florida PIP would cause some hospitals to seriously consider whether they could even maintain trauma centers. The FHA added that it would urge legislators to add PIP to the agenda of its special session.

Florida Governor Charlie Crist expressed confidence in the story that the issue would be resolved in the special session. The state Senate had previously proposed a bill that would extend Florida personal injury protection for car accident injuries for three more years. A study of the current system would have also been concluded by 2010 under this bill in order to determine whether to keep moving forward with PIP at that time. However, the state House failed to take up the plan passed in the Senate, and rather pushed a proposed law that would let PIP go to the wayside and be replaced by $15,000 of coverage that could only be used in emergency rooms and hospital-owned clinics immediately after a car accident. We’ll keep you updated on any more developments with the  Florida PIP debate.

The Injury Site blog appears to be very active, but in fact, nobody is really writing the Injury Site blog (injurysite dot com) at all. 

Instead, the entire contents of the Injury Site blog have been scraped from the Total Injury Blog. 

Total Injury has a staff of writers, designers, and developers, including several attorney writers and researchers.  The Injury Site apparently has no such thing, because this blogger has been unable to find a single post on the Injury Site blog that didn’t appear on the Total Injury blog first.  If you’re reading this post on the Injury Site blog, it’s a safe bet that no one at the Injury Site is even READING the blog—otherwise, they’d surely have prevented this post from appearing.

If you’re reading this post on Total Injury, thanks for visiting, and we apologize for the interruption.  We’ll have more timely personal injury news and commentary for you later today.

Three New York train derailments in the last three months, including one last week in Oneida, have prompted a federal investigation of tracks from Albany to Buffalo. Federal railroad administrator Joseph Boardman said in an online Observer-Dispatch story that a specially designed train will examine more than 1,300 miles of track owned by CSX Corp. Just last Monday, CSX train cars derailed and then exploded near Oneida, causing the evacuation of homes and businesses in the city of 10,000. No personal injuries were reported following this train accident.

Specifically, Boardman said the investigation will examine whether the two CSX rails are level and whether the width between tracks is acceptable. This announcement of a federal investigation into CSX-owned tracks comes nearly a week after US. Senator Charles Schumer of Brooklyn said he’s pushing legislation which would toughen regulations on rail companies, increase penalties for negligence and direct millions of dollars to improve rail infrastructure. Schumer, who said that federal regulators haven’t done enough to combat these problems, also issued a report detailing 527 upstate New York train accidents in the last seven years.

In addition to last Monday’s derailment, CSX Corp. had witnessed similar accidents in the previous months. Thirteen cars on a CSX train left the tracks in East Rochester on January 13^th. Luckily, no one was injured. In December, a CSX train carrying canned vegetables derailed on an overpass in Cheektowaga, leaving one box car teetering over the edge of a bridge, according to the Observer-Dispatch story. Visit The Injury Blog for the latest developments on this federal investigation and learn more about train safety at the TrainBlog.

Did you know that March has been christened Brain Injury Awareness Month? With that in mind, a U.S. Senator from Utah has recently introduced a head trauma bill reauthorizing a federal law supporting programs for people with traumatic brain injuries, or TBI. More than 5.3 million Americans suffer from TBI, according to statistics from the Centers for Disease Control, with most of those personal injuries occurring during falls or car accidents.

U.S. Senator Orrin Hatch of Utah introduced a new head trauma bill last Wednesday to the Senate. Co-sponsored with U.S. Senator Edward Kennedy of Massachusetts, this legislation would allocate money for services for people affected by brain injuries, fund projects for injured veterans, and help states develop treatment capacity for these injuries. This federal head trauma legislation would also put the Centers for Disease Control and Prevention in charge of determining how common TBI is in the general population. Hatch and Kennedy sponsored the original TBI legislation in 1996.

Around two percent of the U.S. population requires lifelong or long-term care for a brain injury. According to a statistic cited in a Utah Daily Herald story, 67 percent of Iraq casualties involved some level of brain injury. Hatch said that this legislation would help provide resources for networks which treat returning soldiers. He added that the overall goal of this bill is to help patients get the best possible care early on so they may recover from their brain injuries.

In addition to Hatch’s efforts in the nation’s Capitol, Utah state legislators have already tried to achieve similar means this year. State Representative James Gowans and Senator Darin Petersen tried to secure $500,000 for a Traumatic Brain Injury Fund which would help establish outreach programs for TBI and help train medical professionals in treating this condition. However, this legislation stalled in the Utah Legislature last month for the second year in a row.

Frequent The Injury Blog for the latest updates on the aforementioned federal head trauma bill, and learn more about brain injuries at the Brain Injury News and Information Blog.

As previously detailed at The Injury Blog, a West Virginia bill striving to reduce ATV accidents and personal injuries by bolstering ATV safety was dealt a tough blow by state senators last week. According to an Associated Press story in the Charleston Daily Mail, West Virginia senators blocked this bill banning ATV use on open roads and passengers from riding on these vehicles unless allowed by the manufacturer out of a concern that the bill would infringe on private property rights.

Specifically, the Senate did not vote on this West Virginia ATV accidents bill last Tuesday. According to the story, the powerful Rules Committee essentially left this bill in neutral by voting to take it off the upper chamber’s calendar. In other words, without reaching a space on the calendar, this bill will not be voted on by the Senate. In order for this ATV accidents legislation to be brought back, a vote by two-thirds of the Senate or a special Rules Committee meeting will be required.

West Virginia Senate President Earl Ray Tomblin essentially described the bill as being “probably dead” in the story. He added that some senators thought the bill was too restrictive and would criminalize ATV users on their own property. This West Virginia ATV accidents bill would have also added the creation of a single form for police to report ATV accidents and track comprehensive data. Tomblin said that senators were not concerned with this aspect of the bill, which he said could return in time.

This bill was prompted in large part by disturbing statistics for West Virginia ATV-related deaths in 2006. According to the AP story, at least 53 people were killed in West Virginia ATV accidents last year. This number was not only a state record but also the highest per-capital death toll in the country.

In a related and tragic story, a man who was interviewed about this West Virginia ATV accidents bill in late February by a local television station was killed in an ATV accident last week. Homer Williams talked to WSAZ-3 in a February 22^nd story about how this ATV bill banning open road use would leave him with no transportation. With that said, Williams’ family said that he died last Thursday morning in an ATV accident. The family said that Williams was found dead on the side of the road with his ATV nearby. Watch the February story including Williams’ comments about this West Virginia ATV accidents bill right here (Windows Media Player is Required), and stay updated on the latest developments on this and all other ATV legislation at The Injury Blog. 

Train accidents have been making many headlines recently, and the Federal Railroad Administration (FRA) has responded with a bill which would aim to reduce a major culprit of these accidents and subsequent passenger personal injuries and fatalities: fatigue. According to a story in the Virginian Pilot, the FRA wants to replace 100-year-old laws addressing the work time of train crews’ with more modern and scientifically-based regulations. A reauthorization bill submitted to Congress last week would specifically regulate the amount of time train crews get to rest between shifts. 

According to the story, the railroad industry’s current hours of service laws say that workers can work 12 hours straight as long as they get 10 hours of rest. However, the law only mandates eight hours of rest when train employees work one minute less than 12 hours. FRA Administrator Joseph H. Boardman said that train employees need schedules which promote safety and rest. While labor unions are happy that the government is addressing fatigue related issues, they are also concerned that repealing the current laws would leave workers without guaranteed rest and work limits.

Fatigue has been listed as the probable cause of 16 major train accidents, some of which involved fatalities, during the last 23 years, according to a National Transportation Safety Board statistic in the story. The reauthorization bill is currently before congressional committee and would carry through 2011 if passed this year. Visit The Injury Blog for more specifics on this reauthorization bill and the latest developments as they happen.

The severe injuries and consequences from ATV accidents have been detailed here in the past, and West Virginia has recently joined the growing list of states seriously addressing ATV safety concerns. Three ATV bills have been introduced in the West Virginia House of Delegates to bolster safety regulations and try to curb West Virginia ATV accidents.

According to a story in the Charleston Daily Mail, there were 54 West Virginia ATV deaths last year. The West Virginia Division of Motor Vehicles says that nearly half of those fatalities involved ATV accidents on paved roads. Two of the three bills would ban ATV use on paved roads, require all riders to wear helmets, and ban any additional passengers unless allowed by the specific vehicle manufacturer.

• West Virginia delegate Corey Palumbo has introduced a bill which would essentially eliminate ATV use on open roads with the exception of riders on trails, who could drive an ATV vehicle on the berm of the road for up to one mile. Current West Virginia law allows ATV riders on trails to do so for ten miles. Palumbo said that the number of West Virginia ATV accidents and deaths on open, paved roads is an extremely important issue because their tires are not designed for pavement. Palumbo admitted that he does not think his bill will get passed but hoped that it would spark more discussion.

• Delegate Kenneth Tucker has introduced a similar ATV bill which would require state agencies to develop an incident form describing all known West Virginia ATV accidents. The West Virginia Division of Highway would then have to include these forms in its annual traffic accident analysis. This bill would exempt the restrictions on riders legally operating their vehicles in areas managed by the Hatfield McCoy Regional Recreation Authority, according to the story. Both Tucker’s and Palumbo’s bills would also take into account recommendations from ATV manufacturers and West Virginia State Police.

In addition to these ATV bills, delegate Sam Argento has introduced a bill that would require ATV owners and operators to get off-road driving permit cards and display this identification on the vehicle. According to Argento, only 150,000 of the near half-million ATV vehicles in West Virginia are registered! All three bills are pending in committees, according to the Charleston Daily Mail story.

ATV enthusiasts and opponents are at odds over bills in various states that would change current riding laws, some of which would allow riders more freedom and others which would strive to avoid ATV accidents like the fatal one in Mississippi last week. A 23-year-old woman was killed last Sunday when her ATV crashed with another man’s ATV, throwing her into the path of an SUV. This incident is the second ATV-related death in the Lucedale, Mississippi area already this month, and another example of why a state like Oregon is trying to tighten ATV-riding laws.

• An Oregon ATV bill would bar anyone under 12-years old from driving these vehicles. Strongly pushed by Senator Alan Bates, Senate Bill 49 would also limit 12 to 16-year olds to operating ATVs with engines of 90 cc or less. This bill has sparked much protest as Southern Oregon constituents are threatening to launch a recall against Bates. According to statistics from the federal Consumer Product Safety Commission, one-third of the near 6,500 victims who died in ATV accidents between 1982 and 2004 were children.

While this bill attempts to curb Oregon ATV accidents involving minors, other states are trying to open up the roads for younger riders.

• A North Dakota ATV bill would allow 10-year olds to ride off-road ATVs and dirtbikes under the supervision of their parents and refute a current law requiring riders on public land to be 12-years old. Proponents of the bill say that such a bill would allow North Dakota children to be trained in safety procedures at an earlier age while opponents question the full cognitive abilities of children below 11 years of age.

• A Nebraska ATV bill would allow ATVs to be driven on all roads except controlled-access highways. Legislative Bill 288 has drawn criticism from safety advocates who say that ATVs are designed for off-road and not on-road use and do not turn as sharply as motorcycles or cars. 

Follow this personal injury blog for the latest developments with these ATV bills.

On Monday, the Food and Drug Administration (FDA) announced steps aimed at improving the agency's safety programs.  The three key elements in the FDA's plan to improve drug safety are:

• Strengthening the science that supports the FDA's medical product safety system, including initiatives to:
  • Develop new scientific approaches to detecting, understanding, predicting and preventing adverse events;
    
  • Develop and incorporate new quantitative tools in risk / benefit assessment; and
    
  • Conduct a pilot program to review the safety profiles of certain newly approved drugs on a regular schedule
• Improving communication and information flow among all stakeholders involved in promoting safe use of medical products by:
  • Establishing an advisory committee to help improve the agency's risk communication policies and practices; and
  • Reviewing current public communication tools and developing a comprehensive risk communication plan
• Improving management / operations to ensure implementation of necessary review, analysis, consultation and communication processes, through the use of external management consultants

Two sisters have filed a personal injury lawsuit against their former swimming coach and Florida preparatory school after learning that they were secretly videotaped while changing into their swimsuits in his office. Kimberly Brabson III secretly taped the two girls when they were 15 and 17 years of age at Tampa Preparatory School. Police say he had been videotaping students for at least three years.

Tampa Preparatory School fired Brabson on November 10^th of last year after learning that he had asked members of the swim team to change in his office rather than the girls’ locker room. Brabson faces 10 charges of voyeurism. Under Florida law, illegally videotaping a person is only a felony for a repeat offender. Brabson has no criminal record. 

Ironically, the father of the two girls bringing the suit is a Clearwater personal injury attorney. Tom Carey filed the suit on behalf of his daughters, who are now in college and for privacy reasons have been listed as Jane Doe Carey and Jane Roe Carey. He said he is seeking legislation to change Florida law, which appears imminent. State Senator Mike Fasano has said that he is working on a new bill that would make it a felony for anyone who videotapes nude children.

Due to his own personal feelings in the case, Tom Carey has turned representation in the suit over to his law partner, Jodi Leisure, who says the school should have known Brabson was a problem. Brabson had been reprimanded once before when a student complained that he made her model a swimsuit. She added that police have identified 21 of 50 victims on a seized Brabson videotape.

The National Transportation Safety Board is urging federal and state governments to ban cell phone use by bus drivers in order to prevent similar personal in injury accidents like the 1994 non-fatal bus accident involving a Massachusetts Catholic school bus driver who, while using a hands free cell phone, caused a personal injury accident involving 11 teenagers on a class trip.  The NTSB also recommends that bus associations develop formal policies related to cell phone usage for its drivers.

In a recent report, the NTSB indicates there are not accurate statistics regarding cell phone use and personal injury accidents.  There are still 20 states that do not have driver distraction codes on accident report forms.   Those states would need to utilize some sort of driver distraction codes when reporting the cause of an accident in order to determine exactly how many personal injury accidents involve cell phone usage.

Until 1996, the Internal Revenue Code excluded compensatory damages--those damages included to "make whole" a plaintiff or restore a person to their pre-injury status--from the definition of "income" for tax purposes. However, ten years ago the statute was revised to exclude only compensatory damages related to physical illness or injury.

In a tort case decided today, the United States Court of Appeals for the District of Columbia held that inclusion of non-physical compensatory damages in the definition of "income" for tax purposes violates the 16th amendment.

Relying on the definition of income as a "gain", the appellate court held that damages intended to restore a person to pre-injury status could not be considered income, even where the losses were not physical or economic.

The ruling may be appealed, but if it stands it will mean that compensatory damages in personal injury cases are no longer taxable, even if they are awarded for intangible injuries like emotional distress and loss of reputation.

A change in Rhode Island personal injury law will make it easier for victims of the 2003 night club fire that killed 100 people and injured more than 200 others.

Surviving victims have faced difficulties in obtaining compensation needed for medical and living expenses because there are multiple defendants and the Rhode Island law in effect until this week--and still in effect for most cases--mandates a significant reduction in an award against other defendants if the defendant who settled is found to have been significantly at fault.

The new law changes the formula for "disaster" cases in which 25 or more people are killed, opening the door for injury victims to settle without risking their claims against other defendants.

In most states, someone who suffers personal injury, aggravated illness, or death caused by dangerous drugs can sue the manufacturer of those drugs. It seems reasonable that a drug manufacturer would be liable for dangerous products just like any other manufacturer who causes injury to the public.

However, Michigan lawmakers haven't seen it that way. Instead, a Michigan law enacted in 1996 protects drug manufacturers from civil liability to their victims if the drug in question had FDA approval. That statute came under scrutiny after Michigan residents harmed or killed by the drug Vioxx were barred from filing suit against Merck last year. Now, Michigan lawmakers are considering revising the statute to narrow the protections and allow Michigan residents more ability to seek compensation for drug-related injuries.

The Bronx Summary Trial Court decided six civil cases during its first week of operation, in significant contrast to typical civil court where one trial can last for several day or even weeks.

Under the new system, New York personal injury cases are tried in just a few hours. Opening statements are limited to ten minutes for each side, and each attorney has one hour to present evidence and may call no more than two witnesses.

Proponents of the system say it will save tens of thousands of dollars for parties in attorney fees, trial preparation, expert witness fees, and more. In addition, cases will come to trial much more quickly.

Currently, the Summary Trial Court hears only cases wherein both parties have agreed to the process. Its decisions are binding and not subject to appeal.