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Apartment Pool Drowning a Horrible Tragedy

Fred Schultz — Mon, 17 Aug 2009 11:55:50 GMT

It broke my heart to see that a 4 year old boy drowned in the pool at the Bachelor Heights apartment complex. I have a five year old son and simply cannot imagine, and don't want to even pretend to image, the pain his family is suffering.

Pools are a lot of fun in the summer, but they are also very dangerous. There is a good reason why homeowners insurance premiums can go sky-high when people have pools. As we all know, kids are curious, and the younger they are, the less they are able to appeciate danger.

A 4-year-old boy drowned Sunday in an apartment swimming pool just south of Bloomington.
The drowning happened at the Batchelor Heights pool, on West Gordon Pike, about 4:30 p.m., Monroe County coroner Nicole Meyer said.

Most apartments and hotels that have pools do not provide lifeguards, and often post signs that warn people. Many times the owners of the property think that this warning somehow eleviates them of any liability in the future. This is not the case, especially in a situation like this where you have a child that is incapable of appreciating the danger.

Property owners, whether commercial, apartment owners, or homeowners, who choose to have pools also have a duty under Indiana law to take reasonable steps to secure their property (including the pool) to make the premises safe. What is "reasonable" depends on the circumstances in each case.

Basically, the law recognizes that each situation may be a little different. What is "reasonable" for a homeowner to do may be different than what is "reasonable" for an apartment complex. It's not reasonable for a homeowner to have a lifeguard on duty, but it is reasonable to expect the homeowner to have a fence. Whether its reasonable to expect a commercial property to have a lifeguard or attendant also varies. For example, how often the pool is used, how many people have access to the pool, does the property charge admission to the pool, etc.

Much more needs to be known before anyone can assess blame in this situation, and the article in the paper references that the Sheriff's Department will be reviewing security camera footage. What is clear is that this a terribly sad story.

Originally posted at InjuryBoard by Fred Schultz

Man Dies in Workplace Crane Accident

Fred Schultz — Fri, 12 Jun 2009 12:22:56 GMT

I was sorry to read about another workplace death involving a crane accident last week. According to the report, a worker fell over ninety feet to his death from a crane up in Gary.

A coroner says a Valparaiso man fell 90 feet from an overhead crane and died at U.S. Steel’s Gary Works.

The Lake County coroner’s office says 54-year-old Alexander Santoyo was pronounced dead of massive blunt force trauma about 4:30 p.m. Saturday.

Tragically, serious workplace injuries and deaths frequently occur, especially in factories or on construction sites. There are many rules and regulations that are supposed to be followed to help keep workplaces safe. These rules are put in place to try and protect people. Often, though, they go unheeded. The (Indiana Occupational, Safety & Health Administration) IOSHA is looking into this particular tragedy and will issue a report of their findings in the near future.

Workplace injuries are obviously very, very difficult not only for the injured worker, but their families as well. In addition to medical expenses and lost wages, there are also often serious readjustments that have to be made in life due to either the tragic loss of a spouse or parent, or learning how to deal with a severe injury. For example, when a father suffers a permanent back injury at his construction job, he has to learn a new skill or trade that does not require such demanding physical activity. This means that the family has to find a way to cope with lost income until the dad is able to either finds a new job or obtain disability benefits, while the dad also copes with dealing with the debilitating injury.

Worker's compensation benefits are often available to help ease the transition, but they usually don't cover the injured worker's full loss. However, depending on how the injury occurred, the person or their family can sometimes make what is called a third-party liability claim. For example, if a worker is injured on the job because an employee of a different company did something wrong, then the injured person can bring a claim against the other company's insurance, in addition to his own employer's worker's compensation benefits. Another example would be if a driver for a delivery company was in an auto accident while on the job, the delivery driver could receive worker's compensation benefits, but also bring a claim against the negligent driver's insurance.

Originally posted at InjuryBoard by Fred Schultz

Clergy Sexual Abuse Lawsuit Filed in Indiana

Fred Schultz — Fri, 05 Dec 2008 17:13:39 GMT

We've all heard and read about the sexual abuse lawsuits that have been filed against Catholic Church Clergy over the years. A new one was filed this week in Lake County against the Gary Diocese.

The lawsuit filed Wednesday in Lake Superior Court says Richard Emerson, while a priest at St. Thomas More Catholic Church in Munster, repeatedly molested a boy in the parish during 2003 and 2004 and forced him to watch a pornographic video. The suit was filed on behalf of the boy, now 15, referred to in the lawsuit as John Doe of Hobart.

The case against this particular Catholic Diocese unfortunately seems to fit along the lines of some others that have been reported where there was evidence of past abuse by the particular priest in question.

A 2004 letter from Melczek to Cardinal Joseph Ratzinger — now Pope Benedict XVI — said the bishop had warned Emerson about taking boys on vacations and letting them stay in his rectory.

The letter said that “on a number of occasions priests and laypeople have expressed their concern to me about Father Emerson.”

I have handled a number of sexual abuse cases over the years, and they are nothing short of excruciatingly painful. Dealing with the emotions that naturally go along with such an abuse of power by those who would prey upon innocent children or the elderly is, honestly, one of the hardest things about any case like this. After all, I'm a parent, too. I can relate to the victim's family, and put myself in their shoes to some degree.

Indiana law allows for victims of sexual abuse in these types of situations to bring a claim against the molester or abuser. Also, depending upon the circumstances, the victim can sometimes bring a claim against the abuser's employer, such as the Catholic Diocese in this case. However, there are certain requirements under Indiana law.

First, in order to hold the employer vicariously (jointly or equally) responsible, the abuse must have happened while the abuser was within the course and scope of his/her employment when the abuse occurred. Second, and equally important, the Indiana Court of Appeals has held that the abuser's job requirements must include physically touching the victim for a legitimate reason.

For example, there are times when clergy touch parishoners for prayer or other legitimate reasons related to their job. Likewise, nurses or home health workers must physically touch their patients. There are two Indiana Court o Appeals case dealing with sexual misconduct that are most often cited. The first involves a nursing home patient being abused by a staff member (Stropes by Taylor v. Heritage House Children's Ctr. of Shelbyville, Inc., 547 N.E.2d 244 (Ind. 1989). The second case involves kids who participated in little league baseball being sexually assaulted by a little league official, (Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind.Ct.App. 2000).

In both of these cases, the Indiana Supreme Court and Appellate Courts held that there was a sufficient requirement of physical contact for the employer to be held responsible for the abuse of their employee. However, a recent Court of Appeals decision held that an employer could not be held responsible for the criminal sexual assault of a member of the community when the person's job requirements did not require physical contact. In that case, a township trustee sexually assaulted a woman who came to his office for help. After the woman sued the county and township, the Court of Appeals held, that the trustee's job did not require physical contact in such a manner that the employer could be held liable or responsible for the criminal acts of their employee.

The distinction seems arbitrary in some ways, but that is where the law seems to be at this point. My guess is that this particular case will be able to make the necessary connection between the priest's job requirements and the assault so as to hold the local diocese vicariously liable. Let's hope that it does, and that the case acts as a deterrent and wake-up call so that this kind of abuse does not happen in the future.

Originally posted at InjuryBoard by Fred Schultz

Another Drunk Driving Accident Causes Injury

Fred Schultz — Mon, 26 Jan 2009 13:22:41 GMT

Unfortunately, another person in Monroe County was injured by a drunk driver last Friday evening. The accident occurred at the intersection of S.R. 45 and Elwren Road when the drunk driver was unable to stop his vehicle in time and proceeded into the intersection, causing a collision with another vehicle. The driver ofthe other vehicle was taken to Bloomington Hospital, while the drunk driver was taken to jail.

After medical staff reported the smell of alcohol on Harden, Monroe County Sheriff’s Deputy Randy Jacobs conducted field sobriety tests, Thomas said. Harden failed them and was brought to Monroe County Jail.
His blood alcohol content was 0.11, police said.

Many people fail to realize that they are not just endangering themselves, but other people as well, when they drink too much and try to drive home. Depending on the person's body weight, it often takes significantly less than one might expect to register 0.08 BAC, which is the legal limit.

Of course, people who are injured by drunk drivers are able to bring claims against the drunk driver and their insurance company for their medical expenses, lost wages and compensation for the injury itself, ofte called "pain & suffering." However, the injured party can also seek punitive damages from the drunk driver because Indiana law recognizes drunk driving as being a wilful, wanton and reckless act. Punitive damages are intended to punish the wrongdoer, not necessarily to compensate the victim. Therefore, punitive damages are generally not covered by insurance. Also, Indiana law holds that any amount of punitive damges received is divided between the victim and the State of Indiana.

Bottom line, if you drink too much, it is far cheaper to just call a cab or have a friend take you home. Unfortunately, not everyone understands this and people are still being hurt because of it.

Originally posted at InjuryBoard by Fred Schultz

Topps Beef Burgers Recalled for E. Coli Contamination

Chrissie Cole — Thu, 27 Sep 2007 22:53:14 GMT

Topps Meat Company announced a voluntary recall of more than 300,000 pounds of ground beef tainted with E. Coli O157:H7, after receiving over 22 reports of illness.

The recall was announced this week after the CDC said 21 people across eight states had become ill after eating burgers that may have been contaminated with E. coli.

According to the CDC, two cases in New York and one in Florida have been confirmed and linked to the recalled burgers, while 18 other cases are still being investigated.

Six people became ill in New York, three of which required hospitalization, according to state health officials.

Consumers are advised to discard any recalled Topps Burgers they may have in the house or return them to the store of purchase for a full refund.

According to the USDA, the recall affects 331,582 pounds of frozen beef patties that were distributed in the New York City area and across the country. They were produced in June or July and carried the phrase "Est. 9748" inside the USDA mark of inspection.

E. coli symptoms include: diarrhea (often times bloody), abdominal cramps and nausea. Very young patients and those with compromised immune systems are at a risk for kidney failure.

For more information on this topic, please visit our section on E. coli Lawsuit Information.

Originally posted at InjuryBoard by Chrissie Cole

Report Finds Thousands of Unsafe Trucks on America's Highways

Fred Schultz — Fri, 28 Aug 2009 16:18:43 GMT

The American Association for Justice, or AAJ, recently released a report on trucking safety violations entitled “Warning! Safety Violation Ahead: Motor Carrier Companies Keep Unsafe Trucks on U.S. Roads.” AAJ analyzed a million lines of data on the safety performance of U.S. trucking companies which they obtained from the Federal Motor Carrier Safety Administration. The incredible results of this study found that over 28,000 trucking companies with safety violations, representing over 200,000 trucks, are currently operating in the U.S.

In an original analysis of data not previously available to the public, the American Associationfor Justice found commuters are sharing roads with trucks that have incurred thousands of safety violations, such as defective brakes, bald tires, loads that dangerously exceeded weight limits, and drivers with little or no training or drug and alcohol dependence.

These findings clearly demonstrate a need for more aggressive enforcement of safety regulations that govern the trucking industry. Trucks make up only 4% of the vehicles on the road, but account for 12% of the fatalities. Specifically, nearly 5,000 people die every year and another 80,000 are seriously injured in motor vehicle accidents involving semi tractor-trailers. According to the report, 147 people died in Indiana in 2007 as a result of being involved in a motor vehicle accident with a truck.

The report found certain violations that seemed to be common among the industry. The driving force behind the violations was to take short cuts on regulations designed to promote safety, but which ate into profit margins. Often, drivers would overload their trucks and not do proper routine maintenance in order to make more money and reduce their operating costs.

These violations include such practices as overloading trucks, allowing unqualified or untrained drivers on the road, failing to maintain tires and brakes, and compensations systems that encourage truck drivers to exceed speed limits and maximum driving hours.

The unfortunate result is that all of us are forced to use the same roads as these trucks. Hopefully, this report will spark more enforcement these regulations and punish those companies that refuse to act responsible manner.

Originally posted at InjuryBoard by Fred Schultz

Medical Malpractice Verdict a Lesson in Real Aspects of "Tort Reform"

Fred Schultz — Thu, 18 Jun 2009 17:12:13 GMT

An Indianapolis jury recently awarded $5 million to a woman who was misdiagnosed in the emergency room. This case is illustrative of several things. First, any verdict over $1 million is very rare, which is why it makes the news in the first place. Believe it or not, juries do not just hand money out like that.

Second, Indiana's Medical Malpractice Act limits the amount of money an injured person can receive in a malpractice case to $1.25 million per act of malpractice. Therefore, even though this jury believed that the harm suffered by the injured person was worth $5 million, the award is automatically reduced by the judge after the fact. It's really unfortunate. Our system of justice allows juries to decide whether a criminal charged with murder should receive the death penalty, but we don't trust juries to award the appropriate amount of money in a civil case.

The third reason this case caught my attention is because the act of malpractice occurred in 2000, nearly nine years ago.

Roxxanna Smith, then 18, arrived at the emergency room in July 2000 with a ruptured diaphragm after playing softball. But through a series of miscommunications about what was shown by X-rays, her lawyers said, doctors instead diagnosed a urinary tract infection and muscle strain -- and sent Smith home.

Her condition deteriorating, she saw doctors several times over more than two weeks. Emergency surgery confirmed the correct diagnosis, court documents say, and resulted in the removal of a third of her stomach.

The reason malpractice cases like this can take so long is because Indiana's Medical Malpractice Act forces cases to undergo an enormously time consuming Medical Review Panel process. My experience has been that the panel review process adds at least two or three years to the normal lenghth of time it takes to resolve cases. Often times, it takes even longer than that to get a case through the panel process.

Essentially, what happens is that the lawyers in the case must submit medical records and depositions to a panel of three doctors with the same or similar specialties to those who are being sued for malpractice before ever formally sueing the defendant medical provider in court. As easy and reasonable as that might sound, it takes a very long time, and is extremely biased in favor of the defendant health care provider.

The panel process is biased for a very simple reason. We are all human, and we all have biases and opinions. We all have a tendency to want to help a friend or colleague. Health care professionals are no different. My experience has been that if a panel can find even a lame excuse to find in favor of the medical professional, they will. Don't get me wrong. I have good friends and family members who are physicians. I'm just saying that there is a basic human tendency to look the other way when being asked to judge a colleague's conduct.

Essentially, the real winners in the way the current system is set up are the insurance companies who write medical malpractice policies in Indiana. They are limited in the amount of coverage they have to provide, they can virtually ignore people who have been horribly injured or suffered the loss of a loved one because of malpractice, and the medical providers they insure face a medical review panel of their peers who often find ways to look the other way.

The real losers are not only plaintiffs in malpractice suits, but patients as well. Over 90,000 people every year die from preventable acts of malpractice. Instead of capping damages and making litigation egregiously difficult for those who are wrongly injured, we should focus efforts on reducing the number of acts of malpractice in America.

I would love to see changes made to indiana's Medical Malpractice Act. However, the only people who can make changes are the Indiana General Assembly. To learn more about Indiana's Medical Malpractice Act, and to contact your State Representative, go to www.in.gov.

Originally posted at InjuryBoard by Fred Schultz

Feds Make Positive Change to Mental Health Insurance Coverage

Fred Schultz — Wed, 08 Oct 2008 13:32:37 GMT

Congress recently required our nation's health insurance companies to address mental health issues as real concerns. This is potentially very good news for everyone who suffers from depression or other types of mental health conditions, and good news for employers as well. Finally, people who struggle with mental health concerns will be able to receive the same level of treatment as someone who has a chronic heart condition, and will be able to maintain their level of productivity at work because, as with any other health-related condition, early detection and intervention by qualified professionals generally leads to a better outcome for the patient.

People struggling with depression or other such diseases have been treated in a dismissive manner, or worse, for far too long. It wasn't more than a few decades ago that families would essentially turn an autistic child or a child struggling with paranoid psychozophrenia over as wards of the state. Finally, we as a society are beginning to come to the realization that mental health issues are not only real, but also treatable. To me, this new action by Congress is a very positive step in the right direction and will shine much needed light on this subject.

The bill does not require all insurance companies to cover mental health treatment. However, if an insurance policy offers some level of mental health treatment coverage, then it must be covered to the same degree that other physical ailments are covered. This would mean keeping co-pays and deductible the same, and providing total coverage limits at the same level. My guess is that we will see health insurance companies who write policies for large employers such as Indiana University begin to phase in this coverage and see how it goes, and then begin to expand the coverage in a more standard way thereafter.

“There’s no question that insurance companies have been discriminating against the mentally ill,” said Jill Taylor, president of the Greater Bloomington Area Affiliate of the National Alliance on Mental Illness. “I’m thrilled that this legislation will put an end to that.”

Taylor said most insurance plans have lifetime payout caps of $1 to $5 million for the treatment of physical ailments, but lifetime caps as low as $25,000 for treating mental illness.

The majority of mental health conditions are very treatable if a person has reasonable access to doctors, counselors, and prescription medication. As someone with a sister who struggles with mental health issues, I have seen dramatic positive changes when people have access to mental health professionals, compared with when they don't.

The unfortunate reality is that many people cannot afford treatment without insurance coverage to pay for most or all of the care they need. Historically, health insurance companies have not considered mental health treatment as being on par with traditional physical conditions, and have provided far more limited coverage for treatment. Even when coverage existed, the co-pays and deductibles were much higher for mental health treatment, and the maximum lifetime benefit was so low that one hospitalization could wipe out the coverage entirely.

Often, this lack of proper care leads to the person not being able to cope with the normal daily stresses that come with any full-time job. Eventualy, many people, like my sister, end up not being able to keep their job and end up applying for disability benefits. Even worse, some people with serious mental health problems that go untreated simply slip through the cracks in our society and end up not only jobless, but homeless or in jail.

Let's hope that this new regulation has a positive effect on every day people who struggle with mental health issues because, if it does, it will have a positive effect on all of us.

Originally posted at InjuryBoard by Fred Schultz

Barbie Accessories Recalled for Lead Hazard

Chrissie Cole — Mon, 10 Sep 2007 19:56:38 GMT

Mattel announced a voluntary toy recall of 675,000 Barbie accessory toys, made in China, due to the surface paints on the toys containing excessive levels of lead.

This toy recall involves several Barbie accessory toys that were manufactured between September 30, 2006 and August 20, 2007. A full list of recalled Barbie toys can be found on Mattel's website. The date and product codes are printed on the largest piece of the toy sets.

Consumers should take the recalled toys away from small children immediately and contact Mattel for more information about receiving a free replacement toy.

This is Mattel's third toy recall, for more information please visit our section on Mattel Toy Recall Information.

Originally posted at InjuryBoard by Chrissie Cole

Man Tasered by Police Dies Five Days Later

Jenny Albano — Fri, 25 Apr 2008 17:06:56 GMT

A man in Chicago died five days after being tased by police outside a bar near Miami University. Kevin Piskura died just after 5 p.m. on Thursday, April 24 at the University Hospital in Cincinnati.

Oxford officer Geoff Robinson used the device early Saturday morning as he tried to break up a fight, police said. The Butler County offices of the sheriff and prosecutor are investigating the officer's actions.

According to the police, Piskura, who graduated from Miami University in 2006, was arguing with a police officer after his friend was thrown out of a bar. Apparently the officer took out his Taser gun and told Piskura to stop arguing. When he did not comply the officer used the stun gun and hit Piskura in the chest. A video from a camera attached to the Taser shows Piskura being shocked for approx. 10 seconds as he rolls around on the sidewalk.

The officer has been placed on paid leave pending the outcome of the investigation. Robinson has been on the force for two years, and had just taken a refresher course on Taser use a week before the incident.

Originally posted at InjuryBoard by Jenny Albano