Category: Personal Injury

Pediatric Head Injury and Bicycles

There are few more memorable achievements for a child growing up than when they first learn to ride a bike. It’s a great moment. And while as a parent you can be proud of them, it’s natural to feel a little nervous. Especially if you look at injury statistics about children and bicycles. But the good news is that helmets make a big difference—research shows that helmets could have prevented 85% of all bicycle-related mortality.

Helmets Prevent Pediatric Head Injury

According to a study from Injury Epidemiology, younger children are at greater risk of bicycle injury than adults, yet their helmet use is low. Less than half of children age 14 and under usually wear a helmet when riding their bikes.

But if a child is wearing a helmet in an auto crash, it can save their life. In that same study, 226 bicyclists were treated for injuries caused by a moving vehicle. With a median age of 11, the helmeted cyclists were less likely to sustain a head injury than kids who weren’t wearing helmets. And the kids who were injured while wearing helmets were less likely to be diagnosed with a more severe head injury.

Without a doubt, when your child wears a bike helmet, they are less likely to receive head injuries. And if your child’s head does get injured when they’re wearing a helmet, it will likely be less severe.

Helmet Laws in New Jersey, New York, and Pennsylvania

State lawmakers have reacted to these statistics and enforced the use of helmets for children riding bicycles. In the state of New Jersey, children must wear helmets. The New Jersey Motor Vehicles and Traffic Regulation laws, under Title 39:4-10.1, state that “anyone under 17 years of age that rides a bicycle or is a passenger on a bicycle or is towed as a passenger by a bicycle must wear a safety helmet.” So whether your child is a passenger on your bicycle or riding their own, they must be wearing a helmet.

The rules are similar in the state of New York, where any child under the age of 14 must wear a helmet on a bike. Children from ages 1-4 must wear a certified bicycle helmet and sit in a specially designed child safety seat.

While the age is lower for required helmet use in the state of Pennsylvania, it’s still a law. Any child under the age of 12 must wear a helmet while riding their bicycle, riding as a passenger, or in an attached seat or trailer. Pennsylvania strongly recommends that every person wear a helmet, no matter their age.

New Jersey Bike Safety Programs

Starting in 2014, SHAPE America published Bikeology, a curriculum designed for physical education teachers to teach young children bike safety. Anyone can download and use the curriculum to teach their own children or kids in their neighborhood.

The Bikeology program works. It was created by consulting physical and bicycle education specialists, as well as injury prevention experts. The curriculum was put through vigorous testing. Nine teachers and 300 students pilot-tested the curriculum to ensure that it secured bike safety.

Tips to Keep Your Child Safe While Bicycling

The number one way to keep your child safe while bicycling is by wearing a helmet. On top of that, here are some other safety tips from the United States Department of Transportation:

  • Check that your child’s bike fits them properly

  • Before riding, inflate tires fully and test the brakes

  • Put your child in bright, fluorescent colors while riding so they are easily seen

  • Teach your children to ride their bikes with both hands on the handlebars

  • Have children look out for any obstacles in the road, like potholes or broken glass

Article By Domenic B. Sanginiti, Jr. of Stark & Stark

For more personal injury legal news, click here to visit the National Law Review.

COPYRIGHT © 2022, STARK & STARK

How Technological Advances Possibly Affect Automobile Insurance Policy Holders in New Jersey

In the 1970’s, “no-fault” insurance laws were enacted in New Jersey and several other states in response to criticism regarding the time-consuming and costly process of determining who was at-fault when an accident occurred. 

No fault insurance laws sought to streamline the claims process.  One key feature allowed insurers to pay for medical treatment of their injured policyholders.  This allowed for timely treatment and provider payment.  NJ automobile insurance policies offered up to $250,000 in coverage for medical treatment.  Recent changes in law now allow insureds to choose less coverage for medical treatment.

Further, recent technological advances change the way insurance customers choose coverage online.  While customers are served by the ease, flexibility, and pricing of policies through internet platforms, some adverse consequences naturally flow.  In this article, we discuss the changes, the consequences and subsequent response from participants and 3rd parties to address these outcomes.

Background

In the 1960’s, many more vehicles were entering into American roadways than in previous decades.  Baby boomers were coming of age and more cars were sold than ever before.  A natural consequence was automobile accidents and as a result, the necessary adjudication of which party caused the collision.

Insured and insurers alike expressed criticism of the process which consisted of petitioning the civil court system to resolve disputes.  In response, state legislatures adopted laws designed to streamline the process, and the 1970’s, many states adopted policies allowing injured accident victims to recover damages from their own auto insurance policies.

Almost half of the United States now have similar laws where policyholders are entitled to “benefits” from their own policies.  This of course means insurers are on the hook for more compensation, a fact they obviously utilized to lobby legislatures to place certain restrictions on the right to sue for damages not only against the insurer but against the tortfeasor as well.

One of the “trade-offs” made by the legislation was injured parties giving up some of their rights to sue under certain circumstances.

New Jersey No-Fault Law and Application

New Jersey’s no-fault laws have been amended throughout the years.  One of the most profound changes to the law occurred in 1998 with the passage of the Automobile Insurance Cost Reduction Act (“AICRA”).  This change in law gave NJ residents the opportunity to purchase a standard or basic policy.

The standard policy is much like a typical no-fault policy containing Personal Injury Protection (PIP) which pays for medical treatment (more on this in a moment); liability coverage for injury or property damage to another; and uninsured/underinsured coverage which kicks in if the at-fault driver has no or insufficient coverage.

A basic policy provides minimum coverage in certain areas such as personal liability, property damages, and medical benefits.  Because having automobile insurance is mandatory, the purpose of the basic policy was essentially to afford an option to those who simply wanted to follow State mandates.

With regard to the right to sue restrictions, a New Jersey insured was and still is offered a choice – give up the right to sue for “non-permanent” injuries (those with no objective medical evidence of permanency) and have the premium reflect a savings or retain the right to sue (zero threshold) and pay a much higher premium to offset the cost.  Further, one of the things insurers had to trade was that victims would have $250,000 worth of PIP coverage to pay for medical expenses.

Changes to NJ No-Fault Insurance and Consequences

The AICRA changes have been in effect for years.  Since that time, the internet altered the manner in which policyholders interact with insurers when choosing coverages.

The internet streamlines the sales process for many businesses.  Insurance is no different.  What is troubling about this streamlining is the lack of guidance users receive from insurance companies regarding their choice of coverage.

For example, one website asks you to choose between:

  • More Affordable
  • Popular Coverage
  • More Coverage

It is not so much that the choices are misleading – they aren’t.  However, other than these descriptions, there is little explanation of their consequences.  If you choose the “more affordable” option, you’re led to a screen that explains the coverages in more detail.

Do people read all the information?

Can they understand the language even if they do decide to read it?

Could it be that the ease of picking the cheapest option is too much to overcome?

Consider this description from a law firm in Maryland:

“PIP is easy to overlook, especially in this age of online insurance applications. It’s one box out of 200 that you can check. The application will say something like, “Waive PIP and save $57.” The applicant clicks and saves 57 bucks…when in reality, they’ve lost $2,500 if they get in an auto accident. Too many Maryland policyholders waive their PIP coverage. It’s really a good coverage not to waive. “

Likewise, in New Jersey’s Standard Coverage Selection Form, used by insurance companies as a questionnaire to draft a proposed policy, the PIP limits selection form actually lists the savings from choosing lower limit PIP coverage.  Remarkably, no such comparison exists on the Form for reductions in Bodily Injury/Liability limits.

In the old days, an insurance agent was tasked to explain various coverages.  A real human being who would answer questions depicting real word scenarios involving accidents.  This obviously allowed for more informed choices.

Now, a great deal of selling is done online.  Many cost-aware customers might respond only to a difference in price.  Many can and do simply choose the cheaper alternative.  This could cause problems later if an accident occurs and a claim is made.

A Potential Problem with Minimal Coverages

Consider a situation where the insured has the minimum coverages for PIP – $15,000.  The insured sustains a back injury and begins treatment.  The Emergency Room visit totals $6,000 complete with 3 level CT scans which reveal problems with the upper and lower back.  The insured then follows up with an orthopedic who requests MRI scans on the back which equal another $2,500.  Add in some physical therapy and the $15,000 PIP limits are exhausted in a couple of months.

None of this is a problem if the scans fail to reveal a major issue.  A soft tissue injury is serviceable under this scenario in that the insured gets treatment and is on the way to recovery.  If the scans reveal problems, such as multiple herniated discs and impingement on the spinal cord, treatment options become a tricky proposition.

The treatment is tricky because the benefits are gone.  Now the injured party must seek other options – some of these can be costly.

Responding to the Need

In response to the above, providers, lawyers and other market participants stepped in to serve the need for accident victims to secure medical treatment.  The following are some of those alternative payment methods.

Letters of Protection

Letters of protection (LOP’s) are agreements between the injured party’s attorney and a medical provider that the medical bills will be “protected” by the proceeds of any settlement received.  In return for the attorney’s promise to honor the lien against file, medical providers will perform a variety of treatments to the plaintiff, including surgery.  Surgery is often a deciding factor in the plaintiff’s ability to secure the treatment because normally, the case’s settlement value is increased after the procedure.

Use Existing Health Insurance to Pay Bills After PIP is Exhausted

In some instances, plaintiffs can use their own health insurance to pay for accident medical bills.  In NJ, insureds can choose which coverage is primary.  However, some health insurance policies exclude coverage for car accidents.  The standard health insurance limitations apply as well.  These include the need to pay deductibles, co-payments and sometimes co-insurance.  Further, there may be limits on the choice of medical provider.  Some policies require doctors to be “in network”.

Litigation Funding

In many cases, litigation funding is used to pay for much-needed medical treatment.  Originally utilized to bridge the gap between accidents and settlement, litigation funding sought to alleviate the need for plaintiffs to accept low-ball settlement offers simply because they were struggling financially.  Because lawsuit funding is the sale of a portion of the future proceeds of a personal injury case, they are sometimes used to pay for surgical or other procedures when there is no coverage available.

Technological Advances and Practical Trade-offs

Technology has certainly made life more convenient over the years.  Conveniences exist today that weren’t in our collective consciousness 20 years ago.  Consider being able to speak via video conference to someone on the other side of the world for FREE, when the toll charges for an overseas telephone call were many dollars only a short time ago.

But technology can cut both ways.  The ease with which insurance consumers can pick coverages that may or may not be in their best interest may be one such trade-off.  Thankfully, market participants (doctors, lawyers, litigation finance companies) step in and address the outcomes which naturally arise.  Free markets usually perform this function admirably.

Article By Paul M. Coppola of Fair Rate Funding

For more insurance and reinsurance legal news, click here to visit the National Law Review.

© Copyright 2022 Fair Rate Funding

OSHA Proposes More Changes to Recordkeeping Rules

Employers across numerous industries may soon face additional recordkeeping and reporting obligations based on a new rule proposed by the Occupational Safety and Health Administration.

In March 2022, OSHA proposed amendment of its injury and illness tracking rule, which requires certain employers to file illness and injury data with the agency each year.  The tracking rule was first implemented in 2016, and required reporting of fatalities, hospitalizations, and other serious injuries for all covered employers with 250 or more employees, and for employers with 20-249 employees in certain “high hazard industries.” The rule required most covered employers to submit their Form 300A  “Summary of Work-Related Injuries and Illnesses” annually.  It also required certain employer establishments with 250 or more employees to submit their complete Form 300 Logs of Work-Related Injury and Illnesses, and their Form 301 Injury and Illness Incident reports annually.  Finally, the rule called for creation of a public database of employer illness/injury data, including business names and illness/injury locations.

The rule generated immediate objections from the business community based on privacy concerns.  Both the Form 300 Logs and the Form 301s Incident Reports contain personal employee information related to their health status.  Employers worried that if OSHA required broad disclosure of these documents and created a public database based on their content, it would jeopardize employee privacy. Even though OSHA claimed it would not make personal identifying information available, employers were not confident the agency could prevent inadvertent disclosure. Also, employers saw myriad ways in which the information could be used against them that have nothing to do with worker safety.

In response to this criticism and after a change in the presidential administration, OSHA rolled back the tracking rule in 2019. The 2019 Rule rescinded the requirement for employers of 250 or more employees to electronically submit Form 300s and Form 301s, but continued to require them to submit Form 300A summaries each year.  Because the summaries did not contain personal information, the modified rule alleviated employee privacy worries.

Now, OSHA is poised to revive the original tracking rule, but expand the application of the most onerous requirements to smaller establishments.  On March 30, 2022, OSHA published its proposed rule in the Federal Register.  If the final rule mirrors the proposed rule, it would largely restore the 2016 rule, but apply the Form 300 and 301 reporting requirements to covered establishments with 100 or more employees instead of 250 employees. Those employers covered by the new 100+ rule are limited to the industries in Appendix B of the proposed rule.  The list is lengthy and includes many farming, manufacturing and packaging industry employers, healthcare employers as well as grocery, department and furniture stores.

OSHA received public comment on the proposed rule through June 30, 2022.  OSHA received 83 comments from a mix of private and public entities, citizens, and industry groups.  OSHA will review the comments and employers should expect the agency to issue a Final Rule by the end of the calendar year, which would become effective 30 days after publication.

If OSHA enacts its proposed rule, covered employers will face significant additional burdens.  Employers must ensure that their Form 300 and 301 Forms are maintained accurately and filed in time to comply with the rule.  They can expect that OSHA will scrutinize these forms and potentially use them for inspection purposes or to develop industry-specific enforcement programs.  Moreover, OSHA may impose redaction burdens on employers and force them to remove personal identifying information from the forms before submission, which can be an administrative burden with potentially significant privacy implications if not followed carefully.  Finally, with additional data publicly available, employers should expect enhanced media and interest group activity based on their injury and illness data.  Even if personal information is not disclosed, interest groups and labor organizations will certainly seize on the available data to criticize employers or push for regulations, without consideration of the fact that employer fault cannot be determined from the data alone.

Employers should take steps now to prepare for the proposed rule and continue to ensure their safety and health programs minimize employee illness/injury risk.  The new rule would greatly increase potential legislative and public relations risks associated with poor safety and health outcomes, and effective illness/injury prevention programs can help employers avoid such scrutiny before the enhanced disclosure requirements take effect.

Article By Susan F. Wiltsie and Reilly C. Moore of Hunton Andrews Kurth. Scott W. Burton also contributed to this article.

For more labor and employment legal news, click here to visit the National Law Review.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

Medicare Advantage: OIG Report Finds Improper Denials

On April 27,2022, the Office of Inspector General of the Department of Health and Human Services (OIG), Office of Evaluations and Inspections, issued a report on the performance of Medicare Advantage Organizations (MAOs) in approving care and payment consistently with Medicare coverage rules. In its review, OIG found that 13% of MAO denials of prior authorization requests should have been approved and that 18% of payment requests from providers were improperly denied. OIG also made a number of recommendations to the Center of Medicare and Medicaid Services (CMS) with respect to its oversight of MAOs.

Purpose and Method of the Study

OIG undertook the study to assess whether MAOs are appropriately providing access to medically necessary services and making payment to providers consistently with Medicare coverage rules. Since CMS pays MAOs principally by capitation, MAOs have a potential incentive to increase their profits by denying access to care of beneficiaries or by denying payments to providers. CMS’s annual audits of MAOs have indicated some persistent problems related to inappropriate denials of service and payment. As enrollment in Medicare Advantage continues to grow, OIG viewed it as important to ensure that medically necessary care is provided and that providers are paid appropriately.

OIG conducted the review by randomly selecting 250 denials of prior authorization requests and 250 payment request denials by 15 of the largest MAOs during a week in June of 2019. OIG had coding experts review the cases and had physician reviewers examine the medical records. Based on these reviews, OIG estimated the rates at which MAOs issued denials of services or payment that met Medicare coverage rules and MAO billing rules. OIG also examined the reasons for the inappropriate denials and the types of services involved.

Standards

MAOs must cover items and services included in fee-for-service Medicare, and may also elect to include additional items and services. MAOs are required to follow Medicare coverage rules that define what items and services are covered and under what circumstances. As the OIG states in the Report, MAOs “may not impose limitations – such as waiting periods or exclusions from coverage due to pre-existing conditions — that are not present in original Medicare.” In following Medicare coverage rules, MAOs are permitted to use additional denial criteria that were not developed by Medicare when they are deciding to authorize or pay for a service, provided the clinical criteria are “no more restrictive than original Medicare national and local coverage policies.” MAOs may also have their own billing and payment procedures, provided all providers are paid accurately, timely, and with an audit trial.

MAOs utilize prior authorization requests before care is furnished to manage care and payment requests from providers to approve payment for services provided. Beneficiaries and providers may appeal such decisions, and beneficiaries and providers are successful in many of the appeals (for a one-time period, as many as 75% of the appeals were granted).

Findings

Prior Authorization Denials

In the study, OIG found that 13% of prior authorization denials were for services that met Medicare coverage rules, thus delaying or denying care that likely should have been approved. MAOs made many of the denials by applying MAO clinical criteria that are not part of Medicare coverage rules. As an example, a follow-up MRI was denied for a beneficiary who had an adrenal lesion that was 1.5 cm in size, because the MAO required the beneficiary to wait one year for such lesions that are under 2 cm in size. OIG’s experts found such a requirement was not contained in Medicare coverage rules and was therefore inappropriate. Rather, the MRI was medically necessary to determine if the lesion was malignant.

OIG also found instances where MAOs requested further documentation that led to a denial of care when it was not furnished, as such additional documentation was not required to determine medical necessity. OIG’s reviewers found that either sufficient clinical information was in the medical record to authorize the care or the documentation requested was already contained in the medical record.

Payment Denials

OIG found in the study that 18% of payment denials fully met Medicare coverage rules and MAO payment policies. As a result of these denials, payment was delayed or precluded for services that should have been paid.

OIG found that common reasons for these inappropriate payment denials were human error in conducting manual reviews (for example, the reviewer not recognizing that a skilled nursing facility (SNF) was an in-network provider), and inaccurate programming.

OIG also found that advanced imaging services (including MRIs and CT scans), stays in post-acute facilities (including SNFs and inpatient rehabilitation facilities), and injections were the services that were most prominent in the inappropriate denials that should have been authorized for care and payment in accordance with Medicare coverage rules.

OIG Recommendations

Based on the study, OIG recommended that:

  • CMS should issue new guidance on both the appropriate and inappropriate use of MAO clinical criteria that are not contained in Medicare coverage rules. In particular, OIG recommended that CMS should more clearly define what it means when it states that MAO clinical criteria may not be “more restrictive” than Medicare coverage rules.

  • CMS should update its audit protocols to address issues identified in the report such as MAO use of clinical criteria and/or examine particular service types that led to more denials. OIG suggests CMS should consider enforcement actions for MAOs that demonstrate a pattern of inappropriate payment denials.

  • CMS should direct MAOs to identify and address the reasons that led to human errors.

CMS reviewed the OIG report and concurred with each of OIG’s recommendations. Those recommendations can affect future coverage decisions as well as utilization of prior authorization tools. AHIP, a national association of health care insurers, challenged the OIG’s sample size as inappropriate to support the agency’s conclusions, and defended prior authorization tools.

Takeaways

Given CMS’s concurrence with the report’s findings, we recommend that MAOs track these issues over the next several months in advance of CMS’s Final Rate Announcement for CY 2024.

MAOs should also be aware of potential False Claims Act (FCA) exposure in this area. FCA exposure can arise when a company seeks and receives payments despite being out of compliance with the basic terms for its participation. If an MAO knew it was denying claims that should be paid because they would be covered under traditional Medicare, but the MAO was still collecting full capitation, it is possible that a whistleblower or the government may pursue FCA liability. This risk warrants attention because whistleblowers can bring qui tam suits under the FCA, with resulting high costs for defense and potentially high penalties if a violation is proven (or settled to avoid further litigation). That said, an FCA suit based on this theory would raise serious questions, including whether any non-payment actually met the FCA’s “knowingly” standard (which includes reckless disregard), or whether any non-payment met the materiality threshold necessary to demonstrate a violation of the FCA.

Article By Alexis Finkelberg Bortniker, C. Frederick Geilfuss II, Matthew D. Krueger, Maureen F. Kwiecinski, and Kinal M. Patel at Foley & Lardner LLP

For more health law and managed care news, click here to visit the National Law Review.

© 2022 Foley & Lardner LLP

A Simple Guide to Exactech Hip, Knee and Ankle Replacement Lawsuits and Settlements

How Do I Know If I Have a Exactech Claim?

STEP 1: Obtain Medical Records

We have written extensively about the different types of defects in certain Exactech products, and the various causes of those defects, particularly to the polyethylene (plastic) liners of those products. Regardless of whether you are dealing with a hip, knee or ankle replacement, the first step in figuring out whether you have a potential claim is to confirm which type of Exactech product (and the components of that product) that you had implanted.

There is a simple way to do that. Whenever doctors use a medical implant or device, like a hip, knee or ankle implant, it comes in its own shiny new box (as you can imagine, a lot of marketing goes into the packaging of these extremely expensive products).

The box has stickers on it that specifically identify everything about the product (manufacturer, model, lot number, etc.). The surgeon takes the sticker off of the box and attaches it to the Operative Report. Consisting of only a few pages, the Operative Report is a basic summary of your joint replacement operation. The stickers are usually attached to the last page of the Operative Report. You can go to your medical provider and ask for your Operative Report (this should only take a couple of days to receive), or you can retain an attorney to formally request your operative report (this will take a few weeks).

Helpful hint: medical providers are only responsible for keeping records for a certain amount of time. If your operation happened a relatively long time ago (longer than seven years), it will be much more difficult to get the records.

STEP 2: Identify the Exactech Implant

Now that you have a copy of your Operative Report with the identifying stickers, you need to compare your Exactech implant to a list of Exactech products that are recalled, alleged to be defective or are otherwise part of the pending nationwide litigations.

Again, some of the recalled product liners are subject to premature deterioration and failure because the packaging exposed them to oxygen, and some of the (hip) liners just did not last as long as they should have. As these products have been used in tens of thousands of procedures over many years, this obviously caused, and continues to cause, serious problems in patients – including osteolysis, or bone loss.

Exactech has a website that allows you to search your implant in its recalled products list. The website also contains the recall and warning letters that should have been sent to your doctors. Finally, the Exactech website encourages patients to submit claims for defective implants through a company hired by Exactech, named Broadspire.

STEP 3: Is Revision Necessary?

Now that you have identified your Exactech implant as one of the products that are alleged to be defective and are part of the pending nationwide litigations, you have to be able to show you suffered damages that require a revision of the implant. In this case, “revision” basically means that a doctor has found it necessary to go in and try to fix or replace part or all of your defective Exactech implant.

Unfortunately, every surgical procedure has a risk of complications. Just experiencing an injury, such as an infection at the surgical site, is not uncommon and does not always mean that your injuries are attributable to a defective Exactech product. So, you will also have to be able to show that the failure of your implant was caused by the premature breakdown and failure of the plastic liner of the implant.

STEP 4: Contact an Attorney

Now that you have determined that you have a defective Exactech implant that required (or will require) revision, you will want to get some legal advice. Two things to keep in mind: 1) make sure to talk to a law firm that specializes in Exactech hip, knee and ankle litigation; and 2) do not wait – there are different deadlines and statutes of limitations that apply to your claim. Do your homework and research the firm you will be working with – there is a good chance it will not be the same lawyer that handled your last speeding ticket, or one of the 800 numbers that flash across your television screen late at night. Put this on the top of your pile of things to do. Only bad things can happen if you wait too long to pursue a claim.

COPYRIGHT © 2022, STARK & STARK
For more about personal injury cases, visit the NLR Litigation section.

Halloween Safety Tips

Innocent Halloween fun can be full of hidden dangers. While keeping an eye out for ghosts and ghouls this year, pay attention to these other factors that might put your family at risk.

Halloween Costume Safety

Children are ecstatic to select a Halloween costume each year and dress up as their favorite characters, but there are several things to keep in mind as you plan out your Halloween wear:

  • Select costumes that are made of fire-resistant material.
  • Avoid masks that restrict vision.
  • Make sure outfits fit well, and do not have any dragging pieces that may inhibit walking or running, or cause tripping.
  • Use non-toxic makeup and be sure to remove it completely before going to bed to prevent skin irritation.
  • Wash hands completely before using or removing colored contact lenses.

Halloween Pedestrian Safety

On Halloween, kids are twice as likely to be hit by a car than on any other day of the year. Exercise caution while walking with your children and make sure older children who venture on their own are aware of risks.

  • Cross at intersections with crosswalks and traffic lights.
  • Wear or hold a flashlight, glow sticks, or reflective tape after dark.
  • Stay on the sidewalks, along paths, and check driveways before crossing.
  • Plan a direct route with the fewest possible street crossings.

Halloween Teen Safety

Halloween is a fun holiday for all ages. Teenagers often look forward to a night out with their friends, an abundance of sweets, and enjoying some independence. If your teenager is going trick-or-treating with their friends, plan to speak with them about safety concerns in advance.

  • Agree on a curfew and check-in times to call or text.
  • Teach your child to never go into a car or a house with a stranger and how to call for help if approached.
  • Plan a route with your teen and walk it ahead of time.
  • If your teen is attending a party, speak to the host parents to make sure it is chaperoned.
  • Speak with your teen about alcohol and drugs and what to do if they are offered anything.
  • Be available to pick up your teen if needed.

Halloween Safety While Driving

With an influx of pedestrian traffic it is important for drivers to be vigilant of their surroundings on Halloween, especially as evening approaches and more people begin trick-or-treating.

  • Stay alert, and stay off electronic devices.
  • Slow down, especially in neighborhoods.
  • Enter and exit driveways, side streets, and parking lots with an abundance of caution.
  • Keep in mind that popular trick-or-treat hours are between 5-9pm.

Halloween Safety and COVID-19

While in the midst of a pandemic, many parents still have concerns about holiday gatherings. CDC Director Rochelle Walensky said in an interview on September 26, that while parents should exercise caution, it is generally safe to be trick-or-treating.

  • Plan to stay in small groups and avoid large gatherings.
  • Open-air venues remain the best option.
  • Trunk-or-treating* is an alternative to trick-or-treating and is typically done in more of a controlled, outdoor environment.

Use these tips to enjoy a safe and fun Halloween with your family.

© 2021 by Clifford Law Offices PC. All rights reserved.

Article By Clifford Law

For more articles on safety tips, visit the NLR Personal Injury section.

The Hot Coffee Case Revisited: Has Proximate Cause Changed in the 25 Years Since Liebeck v. McDonald’s Restaurants?

Two cases decided 25 years apart, but there were some facts in common: a hot drink, a consumer alleging that she was burned by the drink, and a lawsuit. These are the facts of the 1994 case Liebeck v. McDonald’s Restaurants that resulted in an award of millions to the consumer, but also the facts from Shih v. Starbucks, a case decided last year. In Shih, however, the court found in favor of the product supplier. What’s different about these cases? The answer: how the courts interpreted proximate cause.

In 1994, Liebeck v. McDonald’s Restaurants sparked a nationwide tort reform debate after a jury found McDonald’s liable for a consumer’s injuries after she spilled McDonald’s coffee on herself. At the time, many commentators predicted a wave of frivolous lawsuits and large judgments against businesses. But 25 years later, those predictions have not materialized. While consumers continue to sue, the doctrine of proximate cause limits the liability that businesses face from claims for injuries related to hot drinks.

Liebeck v. McDonald’s Restaurants

In 1992, Stella Liebeck bought a cup of hot coffee from a McDonald’s drive-through in New Mexico. While parked, she placed the cup of coffee between her legs and attempted to peel the cap off. The coffee spilled and Ms. Liebeck sustained second- and third-degree burns.

Liebeck sued McDonald’s, alleging that the hot coffee was defectively manufactured, that it violated the implied warranties of merchantability and fitness for a particular purpose, and that the defect caused her injuries. At trial, Liebeck’s attorneys offered evidence that McDonald’s asked franchisees to brew coffee at 180-190 degrees Fahrenheit. Additionally, the attorneys offered evidence that McDonald’s had received more than 700 reports of burns resulting from coffee spills out of billions of hot coffees sold during the time period.

The jury ruled in favor of Liebeck and awarded her compensatory damages of $200,000 and punitive damages of $2.7 million. But the jury determined that Liebeck was 20 percent at fault for her own injuries, and the court reduced the punitive award significantly, resulting in compensatory damages of $160,000 and punitive damages of $480,000.

Shih v. Starbucks

Shih v. Starbucks presents a similar set of facts, but with a different outcome. In June 2016, Tina Shih went to Starbucks with a friend, and each ordered a hot tea. Each tea was given to Shih in a double-cup – one full cup placed within an empty cup. Neither cup had a sleeve. Shih carried both teas to her table and sat down.

Shih claimed that because the cup of tea was filled to the top and was very hot, she did not want to lift it. Instead, she pulled the lid off the cup and moved her chair back to sip from the cup while it was on the table. Shih pushed her chair back to lean over the cup, lost her balance, and put her hand on the table to steady herself – causing the hot tea to spill in her lap. Shih sustained second-degree burns from the incident.

Shih sued Starbucks. She alleged that the double-cup without a sleeve was a manufacturing defect, which – combined with the cup being filled to the brim with hot tea – caused her injuries. Starbucks moved for summary judgment on Shih’s claims, arguing that Shih could not prove the alleged manufacturing defect proximately caused her injuries. The court agreed, granted Starbucks’s motion, and entered judgment in favor of Starbucks. In 2020, the appeals court affirmed.

Proximate Cause is Key the Difference

The differences between Liebeck and Shih are the litigants’ defect claims and their respective theories of proximate causation. The proximate cause inquiry examines the relationship between the defendant’s alleged conduct and the plaintiff’s injury: if the defendant’s conduct is too attenuated from the consumer’s injuries, the defendant cannot be held liable for those injuries. Proximate cause exists when the defect in question increased the risk of harm to the consumer, and the consumer sustained injuries resulting from the increased risk. Courts generally test proximate cause by looking at whether the harm was a foreseeable result of the defect – meaning the business could reasonably have predicted the harm.

Liebeck’s attorneys successfully argued that the coffee was defective because it was served too hot and that the excessively hot temperature put Liebeck at an increased risk of burns. Liebeck established proximate cause by showing that her burn injuries were a foreseeable result of the alleged defect – the coffee being served very hot.

Shih could not establish proximate cause because the court held that the alleged defect was too attenuated from her injuries. Shih’s attorneys argued that the lack of a cup sleeve and the fact that the hot tea was full made it defective. Specifically, Shih would not have removed the tea lid, leaned forward, moved her chair, lost her balance and grabbed the table – causing it to wobble and spill the tea on her – if Starbucks had given her a cup sleeve or not filled the cup to the brim.

The court held that the alleged defect did not increase the risk of Shih being burned or otherwise injured by the hot tea; therefore, the defect was not the proximate cause of her injuries. The lack of a sleeve and the fullness of the tea did not increase Shih’s risk of losing her balance “while attempting to execute [this] kind of unorthodox drinking maneuver,” and spilling the tea on herself. The court’s use of “unorthodox” illustrates that, in the court’s view, Shih’s injuries were not a foreseeable result of the alleged defect. The court noted that while it is foreseeable that consumers could lose their balance and spill their drinks, losing one’s balance is not “within the scope of the risk” created by Starbucks’ decision to use a double cup and to fill the cup to the brim. Thus, Shih could not prove Starbucks’ actions proximately caused her injuries.

Twenty-five years after Liebeck sparked a national conversation about hot coffee and corporate liability, Shih demonstrates that courts continue to follow public policy limitations like proximate cause to protect businesses from unforeseeable consumer injuries.

© 2021 Schiff Hardin LLP

Article by Emilie McGuire and Jeffrey Skinner with Schiff Hardin LLP.

For more articles on class action lawsuits, visit the NLR Litigation section.

New Jersey’s Safe Passing Law Aims to Protect Cyclists and Pedestrians on the Road

The COVID-19 pandemic may have halted or reduced travel for many in New Jersey, but the end of the year also came with a surprising and sobering statistic: the number of fatal accidents involving cars in New Jersey rose in 2020 despite the pandemic.

Last year, 587 fatal accidents were reported across the state, up from 558 in 2019. Fatal accidents involving pedestrians have also risen, and so have fatal accidents involving cyclists. Eighteen cyclists lost their lives on New Jersey roads last year, up from only twelve the year before.

In response to these alarming numbers—and the long-term work of certain local bike safety advocacy groups—the New Jersey state legislature recently passed a bipartisan bill to increase the safety of New Jersey’s bikers and pedestrians. This bill, now known as the New Jersey Safe Passing Law, was signed into law by New Jersey Governor Phil Murphy on Thursday, August 5th.

The New Jersey Safe Passing Law

Under the New Jersey Safe Passing Law, drivers who are passing cyclists or pedestrians must move over one lane if it’s safe to do so. If moving over one lane isn’t possible or safe, drivers must allow four feet of space between their vehicle and the pedestrian or cyclist until they’ve safely passed them. In the event that it isn’t possible to safely allow four feet of space, the driver is required to slow their vehicle to 25 miles per hour.

In addition to cyclists and pedestrians, the bill also covers New Jersey residents with mobility issues who are riding electric scooters or in wheelchairs. Drivers who fail to follow the new law may face fines of $100, while drivers who cause bodily injury by failing to comply may face a fine of up to $500 and have two motor vehicle points added to their driving record.

Struck by a car while cycling? Here are a few next steps

While the Safe Passing Law is certainly a significant step toward making the road a safer place for cyclists, negligent drivers can still present a danger on the road.

If you’ve been injured by a vehicle on the road while biking, you may be wondering what recourse you have for paying medical bills and recovering damages.

Once you’ve carefully documented the accident, spoken to any police dispatched to the scene, and gotten any needed medical attention, the following steps can help ensure you receive the proper compensation and help:

  1. Contact an attorney. Having an experienced attorney on your side can be crucial if you need to pursue damages from the party at fault or need help making an insurance claim.
  2. Since New Jersey is a “no fault” insurance state, medical bills should be covered through your own health insurance or through the Personal Injury Protection benefits included in your auto insurance (P.I.P. benefits may be applicable even if you’re injured while riding a bike).
  3. Depending on the specifics of your auto insurance policy, you may also be entitled to pursue additional damages for pain and suffering or non-economic loss. A skilled attorney can guide you through your options for pursuing damages and help to ensure that you receive what you’re entitled to.
COPYRIGHT © 2021, STARK & STARK

Article By Domenic B. Sanginiti, Jr of Stark & Stark

For more articles on state legislation changes, visit the NLR Public Services, Infrastructure, Transportation section.

Will Louisiana’s New Laws for Self-Driving Delivery Devices Prevent Accidents?

Retail chains, grocery stores, and restaurants have been actively developing methods to deliver products faster. With inventions like self-driving cars and drones, it was only a matter of time before delivery services took advantage. But with any new technology comes safety concerns.

Republican Sen. Rick Ward sponsored a new bill to outline how driverless delivery devices are allowed to operate on Louisiana streets. Governor John Bel Edwards signed the bill and it went into effect immediately. With these new laws in place, Louisiana lawmakers hope to keep motorists and pedestrians safe as they share travel alongside self-driving delivery devices.

Self-Driving Technology

Self-driving cars have been in the works since the 1920s. Carnegie Mellon University’s Navlab and ALV projects built a computer-controlled vehicle in 1984. Since then autonomous technology has expanded to other devices to serve various markets.

Autonomous Cars

When most people think of self-driving technology, they think of autonomous cars. This type of self-driving machine can go long distances and carry larger cargo. Autonomous cars typically transport people while vans may transport smaller self-driving bots.

Surprisingly, the largest safety risk posed to autonomous cars is human unpredictability. The vehicles are programmed to obey strict safety guidelines along with the rules of the road. In theory, that should be adequate to ensure safety. In reality, these vehicles are bullied by human motorists who drive aggressively.

Drones

The first modern drone was developed in 1935. These small, unmanned aircrafts transformed from military equipment to personal aerial cameras. In June 2021, Kroger became the next company to utilize self-driving devices by launching their first drone flight to deliver groceries.

Airborne drones can fly over traffic jams or obstructions. This would allow them to make deliveries in rural areas that traditional delivery trucks cannot reach. Potential complications arise from privacy issues and Federal Aviation Administration (FAA) regulations.

Last-Mile Bots

Last-mile bots, also known as ground drones, are typically small robots that travel short distances. They may cross streets but otherwise tend to remain on sidewalks as they complete a delivery’s last leg of the journey. These robots are designed to navigate sleep inclines, curbs, and unpaved surfaces.

The biggest limitation of last-mile bots is the size and weight of the deliveries they can carry. Severe weather may also pose challenges. Companies like DoorDash and Postmates successfully use last-mile bots to make multiple short deliveries that delivery drivers typically don’t want to accept.

Louisiana’s New Laws for Self-Driving Delivery Devices

As new technologies emerge, so do new laws to govern their usage. Under Louisiana’s Senate Bill 147, self-driving delivery devices must move at low speeds. They cannot exceed 20 miles per hour. They are limited to 12 miles per hour in pedestrian areas, which is roughly the speed of a person jogging.

These autonomous delivery robots must yield to pedestrians. They cannot obstruct the flow of traffic. They must also be equipped with lights on the front and rear.

The companies utilizing robot delivery must ensure each vehicle carries at least $100,000 insurance coverage. Additionally, these devices are not permitted to transport hazardous materials.

Are Self-Driving Delivery Devices Safe?

Due to the high standards of robotics developers, driverless vehicles are generally safer than cars with human drivers. Safety is paramount, since according to a car accident lawyer in New Orleans, nearly 14% of Louisiana drivers don’t have auto insurance.

Louisiana’s new laws aim to prevent accidents both to motorists and pedestrians. Multiple states have passed similar legislation to protect people sharing space with these vehicles. However, Louisiana’s bill permits governing officials and airport authorities to establish additional laws or ban self-driving delivery devices if they pose a danger to public safety in the future.

Who Is Liable When a Self-Driving Delivery Vehicle Causes an Accident?

At this time, no delivery vehicles that are 100% automated are in use, so there are no laws or regulations to determine who would be liable in an accident. However, if there were an accident involving a self-driving delivery vehicle and it could be proven that the vehicle’s operators were negligent, in theory, they would be legally liable.

There are several ways a company’s negligence could lead to an accident. For example, they could fail to maintain the vehicle or to perform critical software updates. Just as with any other type of vehicle on the road, self-driving delivery vehicles can and will get into accidents. When it happens, expect to see increased regulations and lawsuits.

© Laborde Earles Law Firm 2021

Determining Fault When Unsafe Road Conditions Cause Accidents

While most car accidents are the result of driver negligence, there are also a number of crashes that happen each year because of bad roads and missing or incorrect signage. Recent numbers show that in Illinois alone, 57 percent of major local and state roads (in Peoria and Bloomington) are in poor condition, and statewide, 8 percent of bridges are structurally deficient. And those numbers don’t even include the numerous potholes, damaged signage, and other hazards drivers face on a daily basis.

What makes roads unsafe?

Safe Roads USA lists a number of unsafe road conditions that are likely to cause accidents. Among them are potholes, missing barriers and guardrails, missing or confusing signs, uncleared ice and snow, faded or poorly painted lines, and unannounced changes in the road surface (e.g., uneven lanes).

Factors like these can cause any number of issues for drivers that lead to accidents:

  • Confusion. Poorly maintained roads and signage can mislead drivers into actions they may have otherwise not taken. Someone driving on a highway with faded lines may unknowingly veer into the next lane and hit another vehicle, for example.
  • Panic. Confusion often causes panic, which in turn leads to impulse decisions behind the wheel. If a driver encounters an uncleared pile of snow in their path, they may swerve to avoid it without noting who is around them. If the road is busy, they could crash into another driver or, even worse, hit a cyclist or pedestrian.
  • Missed directions and warnings. Signage that is not clearly marked and maintained also causes accidents. The simplest illustration here is a missing stop sign. A driver that doesn’t know to stop at an intersection could hit another vehicle and cause serious harm.
  • Damaged property. Poorly kept roads can also damage the vehicles themselves. Potholes alone cost drivers an estimated $3 billion per year in the U.S. Driving a damaged vehicle around presents its own set of hazards and challenges.

Who is responsible when an accident happens?

If you have been in an accident and suspect faulty or poorly maintained roads to be the cause, one very important thing to keep in mind is that responsibility for those roads doesn’t fall solely to the Federal government. Ownership—and therefore maintenance and upkeep—of roads falls to different governing bodies, from the Federal government to state governments to cities and even private organizations. Given that, it is important to know who owns the road you were on at the time of your accident, which means you may have to do a little research. Start by going to your local courthouse to research property records.

Also note that because road ownership varies, the statute of limitations for filing a claim for an accident also differs from one governing body to the next, as well as what requirements need to be met by the injured party.

When should I seek an attorney?

Determining negligence and liability follows a specific set of steps, and while it’s always a complex process, it gets even trickier when dealing with municipal agencies and responsibility of road maintenance.

If you have been in an accident and suspect faulty roads or improper signage is to blame, it is best to seek an experienced attorney who can help you understand your situation and decide whether or not to press a case.

© 2020 by Clifford Law Offices PC. All rights reserved.

 

ARTICLE BY Clifford Law

For more articles on car accidents, visit the National Law Review Personal Injury section.