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HOW TO SERIOUSLY MESS UP YOUR CLAIM FOR PERSONAL INJURY

First, let’s have some established understanding of what I mean by “mess up”, as it relates to an injury claim.  What I mean by that is either: (a) Making your claim more difficult than it needs to be; and/or (b) Making your claim worth less than it otherwise might be worth; and/or (c) Making your claim impossible to bring.  I made a list of A FEW of the things that I have seen people (claimants) do in their claims.   By “claimant”, I mean an injured person who has the right to present a claim for injury to an insurance company or potential defendant(s).    This list is by no means exhaustive, just some common things I have seen over the years that can adversely affect a claim:

Failure to have a lawyer/Trying to do it yourself

I love to do it yourself (DIY) on home projects, car maintenance, etc.  HOWEVER, I try to know my limits.  I am not re-wiring an electrical panel or plumbing a new shower and tub or re-building a transmission OK?  It is not what I do every day and I realize that I am less skillful than others when it comes to the more complex stuff (my wife might dispute this assertion).   Hopefully, a lawyer offers a claimant two things:  Experience and Advice.   Can a layperson claimant get more money than they could with a lawyer?  Yes, that is possible, but in my view such is unlikely. When you have been hurt and you are dealing with family, job, medical appointments, therapy, medications, and pain, it might not be the best time for you to have important conversations with insurance claims adjusters (many times these conversations are recorded and transcribed).  Although they may sound nice on the phone, when they ask you questions like “Have you ever seen a chiropractor or an orthopedic doctor before?” or “Have you ever had pain in that area of your body before?” – they are not doing this so that they can pay you more money.   These questions are looking to blame your injuries on something other than their insured, i.e a pre-existing condition.   Likewise, if they ask “who is your primary care physician?”, even though you may not have seen that doctor for this injury, they are asking that question so they can obtain those records in the future and see if you ever complained about the injured area of your body before.   For that reason, typically I do not let my clients fill out and return medical releases to third party insurance companies.   I obtain the records and I provide them to the insurer.  Why?  Because if the insurer wants the rights to ALL of my client’s medical records, they can get that as part of formal discovery after a lawsuit has been filed.  That way, I have the right to see the exact same documents they get.  (Medical providers notoriously send different people different records, even though they may have requested “all” records).  Finally, if I have said it once, I have said it a thousand times:  Insurance companies only willingly pay what they fear they might lose in front of a jury.   Do you think a layperson handling their own claim is serious threat to an insurer? – that the layperson claimant can successfully conduct their own jury trial?   I will end by saying that many have tried, few have conquered.  Most times a layperson cannot even get through the formal discovery stage of a lawsuit, that is IF they can manage to draft and file and serve it all correctly.

Valuing claims is also not a science, but depends on many factors.  Insurance companies use computer programs, based on many different algorithms, and on specific claims handling historical data. However, they typically fail to consider many things outside of that, variables which can affect the value of a claim.  Over the years, many people have asked me a question along the lines of “I broke my ankle and had to wear an ankle boot for 6 weeks and my ankle still hurts sometimes. The insurance company offered me $20,000.00, do you think that’s fair? Should I take it”   My answer is usually always the same – Unless I personally do an investigation, review all of your medical records, conduct some research, etc., etc., I honestly have no idea.  A funny thing I have seen a few people do is to cc: a lawyer on their email correspondence with a claims adjuster.  I suppose they hope this a veiled threat that if the adjuster does not pay, they will get a lawyer or that they have a lawyer who is watching out for them.  Frequently, these people may know the lawyer or have spoken to the lawyer at some point:  There are two reasons why you should not do this: (1) It is very tacky, and (2) The adjuster knows you are bluffing or you would have already had a lawyer.  Furthermore, the few times I have seen this – I simply “reply to all” that I do not represent the person.  I do this because I believe that I am ethically required to do so.  I either have to say yes I do represent them or no I don’t.   I have even had a few adjusters call me to verify that I do or do not, in fact, represent someone who said I did or that I would.   If I represent someone, I am ethically bound to notify adjusters about that and I do that as soon as possible.   Lawyers are communicators and wordsmiths.  Once a lawyer formally represents a claimant, they take over all communications with adjusters.

I will end this segment by stating that if a person tries to handle their own case at first, and say gets to the stage of a demand and an offer, frequently they are disappointed when they feel like they have been treated unfairly and they call a lawyer who then tells them they are not interested in taking the claim.   The demand may have been too low, the potential client may be unreasonable on their valuation, etc., but most of all the lawyer has to unravel the claim and any damage that may have been done, so it creates a difficult environment (representing a person who did not have a lawyer earlier in the process).

Failure to follow a physician’s or healthcare provider’s advice 

I just sat through a deposition of a client recently, during which the insurance defense attorney questioned the client intently on previous hospital visits, the discharge records on one previous visit was marked “Discharged AMA” (again medical advice). What that means is that the patient needed further tests or medicine or observation or whatever – and they begged the patient to stay, but the patient would not listen and left anyway.  So “AMA” is the hospital’s trying to say – “we tried our best, but are not responsible if the patient refused to listen”, etc.   But, what the insurance defense attorney was seemingly trying to establish was that this client was unreasonable, angry, hotheaded, and argumentative.   Now this client said that he’d left the hospital that night after sitting there for 3 hours and not seeing a doctor, so I do not think it effected their claim or lawsuit any, but not following a doctor’s advice can have further ramifications.   Let’s say a family doctor told a patient to go to see an orthopedic doctor, because they suspected a broken done.  Then the patient waited a while and then went to see an orthopedic surgeon a week or two later, only to find out the bone had started to heal and it was then too late for surgery to better and more permanently treat the problem.

I have had many cases where a client refused things like needles or invasive testing and I total get that.   Fear is real thing and we are each in charge of our own bodies, but whatever the reason, you should try to explain why you did not do or will not do something.   For example, if your doctor prescribes pain pills and asks at the next visit if they worked, a response often heard is “I could not take them at work, they made me too sleepy” or “I could not take them because I run the carpool for my kids each day and the label on the medicine bottle said to not drive if taking, so I only took them at night”.  That has no effect and is not what I am talking about here.   I am talking about things like a surgeon sends a patient to physical therapy and the patient does not ever go.    Or the therapist prescribes home stretching and therapy and the patient fails to ever do it.    Months later, recovery has not gone well and the person is claiming a lifetime of pain and suffering.  At the surgeon’s deposition, the insurance defense attorney will ask “Doctor, had the patient followed your advice they would have probably been better off than they are today, having done no therapy at all, isn’t that correct doctor?”.  The answer is usually along the lines of  “yes, that is likely”  or “Generally people who complete therapy have a better overall outcome with pain, function and limitations that people who do not do the therapy.”  So, here is the setup – At trial (if case goes that far) the insurance defense lawyer will ask the Judge to instruct the Jury on “failure to mitigate damages”.  They do this in most every injury case.  They request that charge to the jury (instruction) because the duty of a plaintiff to mitigate his damages is codified at O.C.G.A. § 51-12-11, which states in part: “When a person is injured by the negligence of another, he must mitigate his damages as far as is practicable by the use of ordinary care and diligence.”  At a recent seminar, an insurance defense attorney advised attorneys to look for failure to follow physician’s instructions and failure to take steps to reduce pain and suffering.  And then, in closing argument, they will argue to the jury that “had the Plaintiff done what the doctor said, they would have likely gotten better, but the Plaintiff did not do that and now wants you, the jury, to pay them for not following their doctor’s advice. They failed to mitigate their damages and the Judge will charge you … blah blah blah”.    It is better not to be on the receiving end of that argument (whether it is true or not).   It is not so much that the argument can’t be defeated, but the issue is why would a claimant give than argument a leg to stand on in the first place.

And let me be very clear here: I am NOT talking about whether or not to have elective surgery.  Many people get a recommendation for surgery and do not have it for a variety of reasons: financial, time, not sure if really needed, etc.   That can be explained, but you may be called on to explain why you did not proceed with surgery and that is fine.   If you do not think you need it, then get a second opinion.   I see many people do that.   And I am NOT taking about a chiropractor who wants you to go treat 5 days a week for 5 weeks.  We all have our limitations.

Best practices: Communicate your fears and concerns to your healthcare providers, so that they can document them in your chart.  “My insurance only pays for 12 physical therapy visits a year and I can’t afford to pay after that”.    I have never heard of a doctor or therapist who refused to provide at home therapy instructions or program.   Usually that can be done in one visit.   But if they give you at home stuff – JUST DO IT.    Which sounds better here – “I did not do the at home exercises (what they told me to do and explained), because I did not think I needed them and I was just too busy”  – or – “Yes, I did the exercises like I was told, every day at 6 for a half hour when I got home from work” ?  (and hopefully someone else knows that or saw you do his).   Whose claim would you take more seriously if you were the one valuing it?  If you have done all you can do, or what is reasonable, and you still don’t get 100% better, that is much better claim to argue than one in which you did nothing, refused all advice and instruction, and yet are still asking for a lot of money for future pain and suffering.   An old adage I like is “God helps those who help themselves”.

BOTTOM LINE: You are in charge of your health.  If you are told to do something and you do not want to or can’t – talk to your healthcare providers, explain that, inform your lawyer.  Just do not do nothing, as that may come back against you.

Failure to make scheduled appointments with healthcare providers  – Let’s face it. Everyone is very busy. I get that.  Patients calling ahead of time and cancelling and re-scheduling appointments is something that physician’s offices experience most every day.  Follow the Golden Rule here.  If you had a half dozen well paid employees on your staff and you reserved 30 minutes for an appointment, for someone to come in to see you and your employees, and someone did not call and say they could not make it in, then I would expect for you to be upset.    It may be that you have so much business that you don’t really care about missed appointments, as you can spend time on other people, but it is the principle of the thing that I find annoys medical staff.  Likewise, although some offices do so, they should not have to call and remind you or to call and ask you why you are not there.  Be on time and if you can’t make it on time, then call and try to re-schedule asap.  How does missing an appointment hurt a claim, you might ask.   The answer is that it has the potential to hurt the claim in a number of ways.  First off, one day you may need to file a lawsuit and your lawyer may need to meet with the healthcare provider or to take their deposition for court purposes.    If the doctor opens the patient’s chart and sees “DNS”  (Did Not Show) on several appointments, they see that as lost time and potential revenue (which revenue pays all of the other employees).  When an insurance adjuster or insurance defense lawyers see missed appointments, they will argue that the patient was not hurt that bad or did not need treatment – or else they would have showed up for the scheduled appointments.

Which of the following two patient medical chart entries do you think would hurt or not hurt a claim?: “Patient called in and said they had a personal emergency and could not make tomorrow’s appointment. Humbly apologetic, stated in much pain still, re-scheduled to Monday at 0900”  OR “Patient DNS, tried calling patient at home, work and on cell, left messages, no call back”.   Once something goes in medical records – they are not permitted to take it out, so you are stuck with it (and so is your lawyer).  Finally, missed appointments can be seen (argued) as interfering with the normal recovery process. In other words, you would have recovered quicker, better, or more thoroughly, had you just gone to the doctor or done the therapy, as scheduled.

Running late or entirely missed appointments is a very big issue for physicians for many reasons.  “Most physicians and practice managers know that missed appointments are bad for business. How bad? Some experts say that these no-shows and late cancellations cost the American healthcare system more than $150 billion per year, and individual practices between $100 and over $1,000 per appointment, depending on specialty and location.” But, that is not the only bother for physicians and their staff: “Patients don’t get the care they need: “Some studies have indicated no-show rates in community practices ranging from 5 percent to 55 percent. These missed sessions disrupt continuity and compromise quality of care for the patients who miss the appointments and for those who “would have been scheduled in those appointment slots,” according to Family Medicine.” Also, “ Patient satisfaction takes a hit: It’s not just the cancellation or no-show who is negatively affected by a missed appointment — the health of other patients, not to mention their opinion of the practice, suffers too. That’s because every missed appointment could have been filled by another (potentially ill) person, increasing the length of time that patients have to wait to see the doctor.  Captain Kim Decker, chief of the Martin Army Community Hospital Healthcare Management Division at Fort Benning, Georgia, puts it succinctly: “An appointment missed by you is an appointment missed by two.” In other words, the person who misses an appointment is likely to need to re-book, and “whoever didn’t get an appointment initially is also still needing one.” (Source:  https://www.everseat.com/blog/missed-appointments-affect-more-than-just-revenue/)

BOTTOM LINE:  PUT YOURSELF IN THE SHOES OF THE HEALTHCARE PROVIDERS AND THEIR STAFF AND RESPECT THEIR TIME.  MISSED APPOINTMENTS CAN MAKE FOR LONGER WAIT TIMES FOR EVERYONE. AND IF YOU HAVE AN ISSUE THAT PREVENTS OR POSTPONES TREATMENT OR AN APPOINTMENT, BE SURE TO SHARE IT WITH YOUR HEALTHCARE PROVIDER AND TO EXPLAIN MATTERS.

Failure to timely do x, y, z (something)

We have all heard the saying “Time waits for no one”.   This is especially true with injury claims and cases.  I will simply provide a few examples here on instances when time is critical and failure to do something can adversely affect a claim. Of course, the big one is failure to file and serve a lawsuit in time.   Every cause of action in Georgia has a time limit.  We call it a statute of limitations (SOL).  Generally speaking, in most personal injury claims, a claimant has two years from the date of the incident within which to file and serve a lawsuit on any and all potential defendants.  (The rule can be much more complex than that and there are statutes of limitations for some injuries as short as a year and in some instances a pre-trial notice of claim or notice of suit is required, especially regarding governmental entities, so this is not legal advice and if you have a question regarding a particular claim or applicable statute of limitations, then you should consult an attorney.)   The short story is that if you miss an SOL, then you are SOL (sorry out of luck J).   If you miss the deadline, you will not pass go and will not collect $200.00.  In fact. You will not be able to collect anything at all.  Two years may seem like a long time, but in this world of what I call “twenty four minute days”, it is really not that long of a time.   If a person is injured and treated and has surgery and therapy, just that process can take 2 years or, in fact, many years.  Although I have had people walk in literally 5 days before a statute of limitations was to run out, and I was able to draft and file and serve a lawsuit in time, that is not a position that any lawyer ever wants to be in.  The stress is simply too great.  In a medical malpractice case, for example, you have to have expert witnesses to submit an affidavit, which must be field with the Complaint, (that there was, in fact, an act of malpractice) and the experts have to receive and review all of the medical records and maybe do some research in order to support their opinions, etc., so that can take up months, in and of itself, in addition to the time it takes to get the records, etc.

There are many other things that take time and, if not done or not done quickly, it can hurt the case.   Taking pictures of the scene (which can change quickly) or of the object or condition causing injury is also something that is preferably done very quickly.   One of the defense’s favorite things to argue is when a claimant has waited to go to a doctor or hospital.   The argument is “if you were really hurt, you would have gone to see a doctor sooner” or “ you went to doctor two weeks later, but you could have gone to the emergency room.   Many people will wait a few days, a few weeks, a few months, but the point here is that wait time does not help the claim AT ALL.   This is a fairly effective defense argument, because if a person really is in tremendous pain – then they will do most anything in order to ease or stop it, is the belief that many people hold.  One area where time is really a factor is in tractor trailer crashes or even in car wrecks.  If suitable for a particular claim or case, many times I will send out a letter to the defendant and insurer asking for them to preserve evidence so that I can have it tested or photographed later on.   Most newer vehicles now have an electronic data recorder. If the case warrants it, I must hire an accident reconstructionist to download and interpret this computer data.  That is not possible if the data was erased or if the vehicle has been sold for scrap or destroyed.   And in premises liability cases it is very important too.  I have seen items of permanent construction changed in as little as a matter of hours.   Because of evidentiary rules, most times that evidence of change is inadmissible (can’t be used), because it is what we refer to as a subsequent remedial measure.  In other words, the law does not let us use evidence of repair, etc., because the public policy is to promote safer behavior and repairs.

There are exceptions to this evidentiary rule, but I had FAR rather have photographs and documentation of the condition as it existed at the time of injury or as close thereto as possible.   In one case I recall, an elderly lady was severely injured by a dangerous condition in a Wal-Mart parking lot.   Her husband went to the scene after the emergency room. While his wife awaited surgery, which was to take place in the next day or two, he went back to the scene and photographed and shot some videos of the THEN EXISTING dangerous condition.  Just those few seconds of video that he shot with his cell phone was a major difference in the case and ultimately helped us to collect on the claim.   If there is some dispute in a traffic wreck, photographs of the scene, while the cars and debris, skid marks, etc., are still there, can make a huge difference as well.   Many times the names of eye witnesses are not on a crash report.  Taking a picture of a license plate or taking the time to get or provide a phone number can also help.

BOTTOM LINE:  Even though an injured claimant may have whole lot more going on in their lives than they normally would have had at the time, timely investigation and action can make much positive difference in the claim.

 

UNTIL NEXT TIME, I WISH YOU ALL PEACE, SAFETY, HEALTH, HARMONY, AND LOVE FOR ONE ANOTHER.

 

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Personal Injury Attorney Bainbridge GA

NOT SO AMUSING …

As a young child going to Six Flags Over Georgia, I recall being very disappointed that I was not yet tall enough to ride some of the rides.  I recall signs that warned of heart conditions and orthopedic problems.  I also enjoyed having my eyes rolled into the back of my head and all the people screaming as they went down a steep rollercoaster.  Nowadays orthopedic issues prevent my enjoyment of being slammed around and having the G forces pull my cheeks and eyelids back, but it was fun while it lasted.

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“Amusement Park Ride” injuries are some of the most difficult cases there are because courts view the assumption of the risk doctrine as almost an absolute defense.  Assumption of the risk in Georgia basically means that with full knowledge of the dangers presented (gravity, being slammed around, the dropping from great heights, the fast speed of a water slide, etc., etc., – you went ahead and did it anyway.  So, if you were hurt, that’s too bad.  You should have known better.  If you were trying a “thrill ride” or experiencing everything gravity has to offer, you were seeking a thrill – and being addicted to adrenaline is a bad thing in the eyes of the law. (I guess maybe some Judges lead boring lives confined to front porch rocking chairs).

You might ask yourself – “How can I assume the risk of injury, as I assumed the ride was safe?   I assumed the owner and operator and designer all exercised due care for my safety and I paid them a fee to ride it. They owe me a duty of due care.”   I hate to tell you, but they also have liability waivers and warning signs, etc., so these cases are traditionally very hard to win in Georgia (but they can be won).

 As a lawyer, I have sued several amusement parks and water slide parks.

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I was appalled to find out that the inspections are done by the Georgia Department of Labor (same for elevators and escalators in Georgia).  That seemed a bit odd to me, as I had thought that they were in charge only of unemployment and getting people jobs. Silly me.  (I am not dogging the GADOL here, as my dad draws his retirement check from them.  I do know that they have many qualified and devoted employees who try their best to make things safer for all of us).   I was also surprised to find out that industry safety devices that existed were not always utilized.   I would have assumed that everything was state of the art and designed with safety foremost in mind.   I was surprised that my clients had read and followed the directions and yet were being blamed.  And yes, the parents of the injured children were also being blamed.  But my “justice gene” is easily offended and off I went on another mission, David versus Goliath, briefcase in hand. Damned the torpedos!

I put up evidence at a hearing years back and, during my presentation, I had a Judge to tell a defense lawyer that he needed to tell his client (the Park’s corporate owner) that when he (The Judge) showed up at the gate, and presented his Judge credentials, that they were to let him in free of charge.  This was likely improper and certainly completely unexpected for the Judge to go view the scene.  I discussed that with the defense attorney, but the judge was obviously upset and then we found out why: The Judge’s daughter had a season pass and many times the Judge had driven his daughter and her friends to go to that water park for the day.  When the Judge had learned the specifics of the case during a motions hearing, he became quite upset.   This park was a threat to his little girl.  The Judge went to the park and, needless to say, my client won the motions.

We all love fun.  But, do not assume that the safety of you and your family are foremost at every amusement park ride.  While I have seen some safety improvements, I read about a very sad case recently and it causes me to issue this warning:  Do not assume that any amusement ride is safe.  The following news story (horror story) is sadly true:

John Hanna of the AP, wrote the following article on March 27, 2018:

“TOPEKA, Kan. — A water park company co-owner accused of making a spur of the moment decision to build the world’s tallest waterslide and rushing it into service, and a designer accused of shoddy planning, were charged Tuesday in the 2016 death of a 10-year-old boy who was decapitated on the ride when the raft he was on went airborne and hit an overhead hoop.

The Kansas attorney general’s office said Jeffrey Henry, 62, co-owner of Texas-based Schlitterbahn Waterparks and Resorts, and designer John Schooley were charged with reckless second-degree murder in the death of Caleb Schwab on the 17-story ride Verruckt, a German word for insane. The indictment also charges them with injuries to 13 other people on the slide. Second-degree murder carries a sentence of 9 years to 41 years.

The company that built the ride, Henry & Sons Construction Co., which is described as the private construction company of Schlitterbahn, also was charged.

Henry was ordered held in a Texas jail without bond Tuesday, pending extradition to Kansas. The attorney general’s office says Schooley is not in custody. Schooley didn’t have a listed phone number and no one answered the phone at Henry & Sons Construction Co. Eric B Terry, who represented the company in an earlier unrelated case, didn’t immediately return a phone or email message.

The charges announced Tuesday bring to three the number of people accused in Schwab’s death. A Kansas grand jury last week indicted Tyler Austin Miles, the former operations manager of the Schlitterbahn park in Kansas City, Kansas, on 20 felony charges. The charges include a single count of involuntary manslaughter in Schwab’s death. Miles has been released on $50,000 bond, according to one of his attorneys, Tricia Bath.

Indictments say neither Henry nor Schooley had technical or engineering expertise related to amusement park rides. Henry made a “spur of the moment” decision in 2012 to build the world’s tallest water slide to impress the producers of a Travel Channel show, the indictments say. Henry’s desire to “rush the project” and a lack of expertise caused the company to “skip fundamental steps in the design process.”

The indictment said, “not a single engineer was directly involved in Verruckt’s dynamic engineering or slide path design.” The indictment said that in 2014, when there were news reports emerging about airborne rafts, a company spokesperson “discredited” them and Henry and his designer began “secretly testing at night to avoid scrutiny.”

The indictment listed 13 injuries during the 182 days the ride was in operation, including two concussions. In one of those cases, a 15-year-old girl went temporarily blind while riding.

Caleb, the son of Kansas Republican state Rep. Scott Schwab, was decapitated after the raft on which he was riding went airborne on a day on which admission was free for Kansas state legislators and their families. The family reached settlements of nearly $20 million with Schlitterbahn and various companies associated with the design and construction of the waterslide. The two women who rode on the same raft with Caleb suffered serious injuries and settled claims with Schlitterbahn for an undisclosed amount.

“Clearly the issues with Schlitterbahn go far beyond Caleb’s incident, and we know the attorney general will take appropriate steps in the interest of public safety,” the family said in a statement released Monday through their attorneys.

The indictment said Schooley was responsible for doing “the math” that went into the slide’s design and signed an operations manual claiming the ride met all American Society for Testing and Materials standards. But the indictment lists a dozen instances in which the design violated those standards and says investigators could find no evidence that so-called dynamic engineering calculations were made to determine the physics a passenger would experience. The indictment said Schooley lacked the technical expertise to properly design a complex amusement ride such as Verruckt.

The indictment said Schooley admitted, “If we actually knew how to do this, and it could be done that easily, it wouldn’t be that spectacular.”

The company has promised to aggressively fight the criminal charges against Miles and the park, and respond to the allegations in the 47-page indictment “point by point.”

“We as a company and as a family will fight these allegations and have confidence that once the facts are presented it will be clear that what happened on the ride was an unforeseeable accident,” Schlitterbahn spokeswoman Winter Prosapio said in an emailed statement.

Prosapio said Schlitterbahn does not expect any changes to the Kansas City park’s season, which is set to open May 25 and runs through Labor Day. The Verruckt slide, has been closed since Caleb died.

Mike Taylor, a spokesman for the Unified Government of Wyandotte County and Kansas City, Kansas, says it does not believe it has the legal authority to shut down a business, other than for an epidemic or contagious disease outbreak.

The company also operates water parks in Galveston, Corpus Christi, South Padre Island and New Braunfels, Texas, according to its website.

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Associated Press writers David Warren and Terry Wallace in Dallas also contributed to this report.”

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You wouldn’t think such could ever happen would you?  This is hard to believe.  I know.  I see a defense already in a civil case: “Well tens of thousands of people had ridden it over six months without incident or injury”.   Sadly, this is not true as they KNEW of many previous injuries.    Ask yourselves “why?”.  What motivates such abhorrent behavior?

Most times I am against governmental regulations – except when safety is an issue and the industry does a poor job of policing itself.   I hate to use tragedy as the backdrop of a teaching point, but all safety rules result from “blood on the ground” (and typically way too much if it).   Please consider this next article (almost 4 years old now) as hopefully thought provoking:

When Thrill Rides Are Real Risks

By IAN URBINAJULY 26, 2014

“EARLIER this month, nearly two dozen people were stranded midair for hours after a fallen tree branch partly derailed a roller-coaster ride at the Six Flags Magic Mountain amusement park in Valencia, Calif. Last summer, a woman was killed at Six Flags Over Texas in Arlington after she fell out of the Texas Giant roller coaster. That same day, a boat on Cedar Point’s Shoot the Rapids water ride in Sandusky, Ohio rolled backward and flipped over injuring at least six people.

Amusement park horror stories like these are a perennial summer ritual that raise the question of whether roller coasters and other thrill rides, which are faster, taller and more extreme than ever, have also become more dangerous.

Some federal lawmakers certainly believe so. “Roller coasters that hurtle riders at extreme speeds along precipitous drops should not be exempt from federal safety oversight,” said Senator Edward J. Markey, a Democrat from Massachusetts. “A baby stroller is subject to tougher federal regulation than a roller coaster carrying a child in excess of 100 miles per hour. This is a mistake.”

The fact is that no one knows for certain whether the rides are getting safer or more dangerous. There is no single federal agency responsible for collecting data or enforcing standards. Although the Consumer Product Safety Commission regulates portable rides like the ones at county fairs, the most popular amusement park rides are the so-called fixed-site rides, which remain outside the agency’s jurisdiction. As a result, regulation varies by city and state; rides may be inspected by departments that normally handle building inspections or labor issues. Federal regulation of roller coaster safety ended in 1981, before most modern rides were built.

When Mr. Markey was still in the House of Representatives, every year from 1999 to 2011 he proposed legislation — that failed to pass — calling for stricter federal regulation of amusement parks, including the collection of uniform safety data and independent inspections after every accident.

But amusement park officials insist they are very good at giving people a sense of danger without actually putting them in danger. Roughly 300 million people visited the nearly 400 amusement parks in the United States in 2011, taking about 1.7 billion rides, according to the International Association of Amusement Parks and Attractions. The chance of being seriously injured at a park is about one in 24 million, association officials say, far less likely than being injured in a car accident or struck by lightning.

Last year, however, a study by the Center for Injury Research and Policy at the Nationwide Children’s Hospital in Columbus, Ohio, revealed evidence of frequent injuries among children. More than 93,000 children under 18 were treated in emergency rooms for amusement-park-related injuries between 1990 and 2010. Although the researchers were unable to compile amusement-park-related deaths, they estimated that a child is hospitalized once every three days in the summer from an injury related to a park, carnival, fair or arcade ride.

The study’s senior author and the center’s director, Dr. Gary A. Smith, said current oversight is fragmented and ineffective. “A coordinated national system would help us prevent amusement-ride-related injuries through better injury surveillance and more consistent enforcement of standards,” he said.

Amusement park officials say that when accidents do occur, it is often because patrons have risk-increasing, pre-existing medical conditions or fail to heed rules like those about staying seated or keeping their limbs inside the car. “There is no evidence federal oversight would improve on the already excellent safety record of the industry,” said Colleen Mangone, the media relations director for the amusement parks association. She cited a 2013 report prepared for her group that showed that ride injury rates have remained relatively unchanged since the data were first collected more than 10 years ago. Critics of the report say that it is based largely on self-reported data by association members and that many parks, including some with the worst safety records, opted not to participate in the survey.

Nondisclosure agreements regarding accidents have made it even harder to measure safety. When The Orlando Sentinel reviewed more than 100 personal-injury lawsuits related to ride injuries or fatalities filed against the area’s three big theme park companies in the four-year period ending in 2008, the newspaper discovered that nearly every case was settled out of court, with the details sealed from the public.

Some ride experts say it is not just rides but riders who have changed over the years. Not only are there more obese visitors, but there are also more amputees and people with disabilities.

In some cases body size may have played a role in deaths or injuries. Rosa Irene Ayala-Gaona, who died in the Texas Giant accident last summer, weighed over 200 pounds, prompting ride experts and lawyers to question whether her weight may have prevented the T-shaped lap bar from locking properly. Before the 14-story ride began, Ms. Ayala-Gaona had complained that her safety bar did not seem to have been fully secured, witnesses told a local TV news crew.

Amputees also face risks. In 2011, an Army veteran who had lost both legs fighting in Iraq plummeted 150 feet to his death from a roller coaster in upstate New York because he could not stay in his seat. He was permitted on the ride even though he was not wearing his prostheses.

To better screen riders, some parks use “sample seats” to determine if passengers can be properly secured before getting in line, said Dennis L. Speigel, president of International Theme Park Services, an Ohio consulting firm. Other parks have specially designated seats for amputees and larger patrons.

But some rules are hard to enforce. Setting a maximum weight, for instance, is difficult because a 200-pound person who is 6-foot-1 is quite different from one who is 5-foot-5. “Girth matters,” Mr. Speigel said. And the person working the controls is often a teenager who might be nervous to make judgment calls.

Even rejecting riders can carry risks. Two amputees filed a lawsuit last year claiming they were wrongfully barred from riding a roller coaster at Universal Studios Hollywood. The suit argued that the park’s stated policy required only that all riders have at least one hand and one leg.

Meanwhile, we can expect rides to continue pushing the limits.

Jim Seay, president of Premier Rides, a major manufacturer, said that even though technology has greatly improved safety, there is competitive pressure to be the biggest, fastest and scariest.

“Parks in general know they need to provide something new for their guests every year,” he said.”

Ian Urbina is an investigative reporter for The New York Times.

A version of this news analysis appears in print on July 27, 2014, on Page SR6 of the New York edition with the headline: When Thrill Rides Are Real Risks

If you or a loved one are ever injured on an amusement ride – be aware that documenting the conditions then prevailing is extremely important in order to supplement any subsequent investigation.   Do not be afraid to take pictures or have someone else to do so as soon as possible.  By the next day or even in few hours, things may not be as they appeared and subsequent remedial measures are typically excluded from evidence in a court case (in order to “promote safety” is the theory behind such rule of evidence).    My take is if it is unusual in outcome, then it probably should not have happened, so I look for the reasons why it did.

BOTTOM LINE:

Safety should be everybody’s business, but if you think a manufacturer or designer or owner or operator will always act to protect you and your family, hopefully you will reconsider that conclusion.

 UNTIL NEXT TIME: MY WISH IS HEALTH AND HAPPINESS FOR YOU ALL.  AND MAY GOD RICHLY BLESS EACH AND EVERY ONE OF YOU.     

Uncategorized

GOVERNOR’S OFFICE OF HIGHWAY SAFETY

Overview

Georgia Personal Injury Attorney’s in Bainbridge, GA as well as statewide, saw an increase in cases overall in 2017. Many Attorneys like Mark F. Milhollin / Milhollin Law have seen an increase in Truck (Semi-Truck), Auto, Motorcycle and Recreational Vehicle Injuries throughout 2017 that resulted in head Injuries, back Injuries, neck Injuries and unfortunately child Injuries suffered with and without seatbelts.

Many of the Injured have survived horrific accidents and although the level of medical care is fantastic in Georgia, many of these individuals sustain lasting/permanent disabilities (now and in the future).

After steadily declining since 2006, Georgia traffic fatalities increased dramatically in 2015, and increased again the following year. In 2016, the State of Georgia suffered 1,554 fatalities in motor vehicle crashes (an 8.5% increase from 2015). Impaired driving killed 368 persons in those crashes (a 2.7k increase over 2015), and unrestrained fatalities numbered 476 (up 15.8% from 2015). Two hundred and sixty-six (266) of the total 1,554 fatalities were related to speeding — a 2.7k increase over 2015. Although fatalities still have not returned to the levels seen in 2007, when Georgia experienced 1,641 traffic fatalities, the statistics continue to be troubling. The nation as a whole and our neighboring states all saw increases as well (U.S. up 5.6%, Alabama up 22.1%, Florida up 8.0%, South Carolina up 3.7%, and Tennessee up 8.2%). Preliminary estimates for 2017 suggest that the number and rate of fatalities may at last be decreasing again, thanks to GOHS’ evidence-based traffic safety enforcement plan.

Uncategorized

TWO KEYS TO THE COURTHOUSE

In criminal cases, we have a constitutional right to a lawyer – free of charge – if we can not afford one. We call this a “court appointed lawyer”. However, in a private civil case, there is no such right. You have to hire a lawyer to represent you. That lawyer will typically charge you by the hour against a sum of money called a retainer. Once that retainer is gone, they will ask you for another retainer. If you can not pay the additional retainer, then the lawyer will typically withdraw from the case (no one can afford to work for free for very long, if at all). If you are the defendant in a civil case and you have insurance which would cover the claim, then the insurance company will pay for your lawyer (even though that lawyer’s client is really the insurance company and not you). So, what do you do when you have been injured and you can not afford to pay a lawyer by the hour to represent you?

When I was still in my last year law school, I had already taken the bar exam in February and was waiting on my score and diploma. Most of my class work was done. I was headed back into the U.S. Army and was working as a prosecutor in the Fulton County District Attorney’s Office in Atlanta. I got to try my first jury trial by myself under the Third Year Practice Act, which is a law in Georgia that lets some law students work as lawyers, but only in a governmental setting and with supervision. I asked the senior prosecutor if he knew where I might could find some paying work and he told me he had a former student who was looking for someone to clerk in their office. I applied and interviewed and soon found myself working in a real law office with real cases, not the fictional ones we argued in law school. These were real people: divorces, real estate closings, and some personal injury cases. I had always wanted to do personal injury cases, but you have to have some trial experience first, so I had planned to try cases in the Army to begin with, because I had some rank already, I understood the structure of the Army, and due to my prior service I would make a bit more money than I would have in a civilian prosecutors office (the other best place to get trial experience). Eventually, after a few years, I planned to become a civilian trial lawyer.

One day we got a call from a guy who said he had slipped and fallen outside a convenience store and had hurt his back. This fellow had been given the run around by the insurance company and needed some relief from his pain. The lawyer who took the call did not think much of the potential claim, but told me that I could bring the guy in and talk to him, if I wanted to, and see if I could make something of it. The man and his wife came in and he was in pain (“fire” running down his leg, which I supposed was sciatica) and explained to me that he was walking into the convenience store and stepped on a piece of clear cellophane wrapper (that he did not see because he was making sure no one came out the door and ran into him as he reached for the door handle). He said his foot slipped out underneath him and he went backwards and landed on his butt on the concrete sidewalk. His wife was right behind him and said she saw the whole thing. I asked the guy what he had slipped on and he said when he was laying there he picked up the wrapper and it was a Banana Flip wrapper. I asked him why it made him slip and he said it had like a cream coating on it and was partially dried but had like whipped crème on it. Because I was a student and therefore a connoisseur of gas station food, I just so happened to know exactly what a Banana Flip was. For those of you who do not know, it is basically a very greasy banana pancake filled with banana cream and folded over in half. It probably would take about four years of heavy cardio in order to work off those calories in a gym.

I talked it over with the lawyer, who agreed to let me sign them up as clients and do a demand letter. In the coming weeks, the man got much better and I wrote a letter to the unreasonable insurance adjuster, demanding a specific amount of money, included the medical bills and records, and threatened to file a lawsuit (which I would had to have a real lawyer sign) in the event said cash money was not forthcoming. A property owner in Georgia has a statutory duty to inspect their premises and to act in order prevent harm from dangerous conditions. When the couple came in to get their check, the man was very happy. I was proud of my work. My first real injury case. You can see, if the man had not had me (or the real lawyer) willing to do battle, he would not have gotten a dime. Without a law degree and a bar license on their side, this man and his wife were like two titmouses trying to negotiate with a pack of timber wolves. I am sure the insurer also told the store they had to clean up their sidewalk outside and that they could not let trash lay around, because that was hazardous to their customers. I was hooked for life right then. I knew that eventually, when I had gotten good enough in trial, that I would do personal injury cases. I would sign those demand letters and lawsuits and I would bring justice within reach of the injured and downtrodden.

Faced with injury, unpaid medical bills, lost wages, and an insurance adjuster who could not have possibly cared any less about their plight, this man and his wife were faced with a denied claim. They did not know the law. They did not know whether they had a viable claim or not. They felt abused and powerless. They had done nothing wrong. He was just a hardworking guy going into the store to make a purchase. They were proud and upset enough at the injustice to try to get a lawyer. They could have gone out and hired a lawyer by the hour. Thirty years ago that might have cost them $150 or more an hour to get a good one, to get a knowledgeable and skilled trial lawyer who held “the key to the courthouse” in their hand. But a lawsuit and jury trial are massive undertakings and the lawyer’s time would have quickly exceeded even their net worth. It wasn’t a big case and they were not wealthy by any stretch, but to them this was the most important thing going on in their lives at the time. The man needed to get well enough to work again and they were out of money for doctors. Without a lawyer on their side, an insurance company would never pay the claim and had, in fact, already denied it. This man and his wife were not a threat to a big insurance company who could afford to hire a team of lawyers to cut them and their little claim up into pieces. Some people try, but there is no way that a normal person can learn the many court rules and the substantive and procedural laws well enough, in a short period of time, to successfully fight a court case being defended by real lawyers. Insurance companies only fear juries and the only way to really get to one is with a lawyer on your side, and preferably a good one at that.

BUT when that couple came into the office, I held the other key to the courthouse – the contingency fee contract. You have seen it on TV as “No win/no fee” or “we don’t get paid unless you get paid”. Basically, a contingency fee contract is when a lawyer agrees to take the case, work it up, pay the out of pocket expenses, etc., and then IF the case results in a monetary recovery, then the lawyer gets a percentage, typically from 33 and a third percent up to 50%, depending on what type of case it is and the likelihood of a monetary recovery. These contracts are required to be in writing and the terms are spelled out. If the lawyer loses the case or no money is had, they lose the value of all of the time they have put into it, and typically all of the expenses they have paid out, which can be enormous – regardless of what type of case it is. The key to this type of contract for the client is to actually get a lawyer who will go to court and try the case, if need be. I can tell you right now that many lawyers who represent people on contingency fee contracts have never seen the inside of a courtroom unless it was when they were filming a commercial for tv. Insurance companies know exactly who will and will not take a case to trial and that effects what they are willing to pay in cases. I can recall numerous contingency fee cases that I have taken over the years that were not the type of cases that usually result in a lawsuit, but I took the cases because I knew that without me the people would have gotten nothing. Those may have not been the best business decisions I have ever made, because every case I take is extremely time consuming, but I usually took those cases because something about it upset me. I do not like to see other people abused or treated badly just because they are unable to bring a lawsuit for themselves.

In the early days of my practice, insurance companies hired law firms to defend their cases and they paid them on an hourly basis, although at a reduced rate. That helped to settle cases because insurance companies got tired of spending the money defending them through trial, where they might lose even more money. Some years ago, insurance companies figured out they could save money by having lawyers to work exclusively for them and now there are numerous law firms that are wholly owned by insurance companies, because it is cheaper to have these lawyers as employees than it is to pay outside counsel by the hour. Insurance companies also realized that Plaintiff’s lawyers were settling most of their cases and that they were paying too much or making it to easy, so they decided to largely stop the practice of easily settling cases. They decided to make Plaintiff’s lawyers try more cases. Because a smaller value case can take just as much time as a big case with catastrophic damages, many Plaintiff’s lawyers refused to take small cases and if they took them at all, they settled them cheaply rather than go to trial. In the end, insurance companies were able to save money (make more money as profits) by reducing defense costs and by reducing what they paid out to settle cases. Sadly, many “trial lawyers” were anything but, and were cowed by the fact that their cheese was moved. I have always said that if a lawyer is unwilling to try the case, then they should not take it. Things can certainly happen during the investigation or pre-trial phase, or even after suit is filed, that reveal weaknesses in a case that a lawyer can’t overcome, but that is not what I writing about here. Again, liability insurance companies fear a jury at trial and little else.

It does not end here though. To make things worse, along came “tort reform”. Supported by an absolute pack of lies and phony statistics, a national political movement that was well funded by insurance and big business political donors. TV ads were bombarded upon the American Public warning us that out doctors were leaving, and the sky was falling, and evil plaintiff’s personal injury lawyers were getting rich off a broken and unfair tort system, blah blah blah. This campaign was one of fear based upon neuroscientific research that was specifically designed to make the American public be afraid and believe that something had to immediately be done about “runaway juries” and that “tort reform” was the best and only answer. Just like Hitler’s propaganda ministry convince the German people that Jews, books, and privately owned guns were causing the downfall of the fatherland, our own government bought into the lies (or were bought themselves) and helped convince people, even judges, that injury cases were evil and that there would be hell to pay if they did not try to stop it in its tracks. As a result, some really horrible laws were passed in many states, including here in Georgia, that took away people’s constitutional rights. Tort reformed Judges were installed on courthouse benches by politicians whom they owed allegiance to. It was one of the saddest things I have ever witnessed. It was dire days. We simply did not have the money or the power to defeat this tort reform nonsense. It swept over the land like a tsunami.

BUT, fear not, I have good news! Despite all of the industry changes and the difficulties encountered, there is a group of plaintiff’s personal injury trial lawyers who will still take a case to trial. New trial methods have been developed to defeat tort reform in the jury room. I have been proud to be a part of that for many years now. I am proud that we did not give up the fight. I am glad that people smarter than me figured it out. Thousands of us over the whole country have decided that enough is enough. More cases are going to trial now. The results have been great. Young lawyers getting out of law school are wanting to represent injured plaintiffs and families whose loved ones have been lost due to the violation of safety rules. Older lawyers who had become discouraged by tort reform are trying cases again with a rekindled vengeance. We are taking the old case law to all trial judges, all across the country, and reminding them of the purposes of tort (injury) law, as well as the right to a fair and impartial jury trial in a civil case. Justice will be served. We will not be denied.

For now, there are still two keys to the courthouse. We are the only country on earth that still allows civil jury trials – A trial in our community, before ordinary citizens, so that they can decide what conduct should and should not be tolerated. Without civil jury trials, I think (know) that our communities would be much more dangerous places. A jury trial is a priceless check and balance, an individual right that we have as citizens. A right people have fought and died for, so that we can maintain it for our children. If you believe like I do, our state and federal Constitutions are divinely inspired documents. Many times over my lifetime, I have sworn to uphold and defend both, even at the cost of my own death. The right we have to a civil jury trial is indeed a matter of life and death. It’s just that dirt simple.

I hope you will join me in the defense of our Constitutions. Honor that jury summons – it is a high privilege to serve. Educate yourself on the falseness of “tort reform”. Help keep our communities safe. Hug a trial lawyer (just not the ones who defend insurance companies though, because I hear they do not like to hug).

BOTTOM LINE: We must always have two keys to the courthouse, because if we lose one of them – then only the very rich and powerful can afford to seek justice.

NEXT UP: HOW TO SERIOUSLY MESS UP YOUR CLAIM FOR PERSONAL INJURY

Until then, may we love one another and treat each other as we would wish to be treated ourselves.