TOV Injury and Safety Blog

A story you won't believe

The 2005 McKim case arising out of Ogemaw County is likely to startle anyone who reads it and who is unfamiliar with the prejudices of the current conservative majority of the Supreme Court.

A hotel in West Branch sprayed hot water on its roof in an attempt to remove ice.  In the process, though, the employees created a skating rink out of the north end of the hotel parking lot.  Nothing was done that day or the next to remove or salt the icy condition.  A guest, Vera Dolle, fell on that ice the next day and suffered a serious injury.  Two hotel employees came out to help Vera and the Assistant Manager, one Jane Healey, also slipped and fell on the ice, breaking her ankle.  Now we have two women down on the ice in the lot.

The employees summoned two ambulances, and McKim, a volunteer EMT who arrived with the second ambulance, crossed the parking lot to give aid.  On her way back to her ambulance for equipment she also fell on the ice, striking her head and suffering a closed head injury.

She filed a lawsuit seeking compensation for her injuries and out-of-pocket expenses, however, the trial court dismissed the case, holding that the icy condition was "open and obvious".  Meanwhile, Ms. Dolle (an Ohio resident) had filed suit in Federal Court over her injuries, and discovery in that case disclosed for the first time that the Defendant not only knew about the icy condition, but had actually created it the day before and then neglected to address it.  The hotel had not revealed these facts in the McKim case.

Because the trial court had dismissed the McKim case, McKim appealed to the Court of Appeals, where the panel of reviewing judges disagreed with the trial court.  They held that the circumstances of this case, where the Plaintiff was summoned to a hazardous condition to aide victims of the Hotel's negligence, constituted a "special" situation and that the Defendants could not excuse their negligence by simply alleging an "open and obvious" danger.

Unfortunately, the Republican majority of the Supreme Court reversed, without issuing an opinion.  They merely stated that the condition was "open and obvious" and presented no "special aspects".

We doubt if one Michigan citizen out of ten would agree with this outcome.  It is dreadful public policy to suggest that ambulance attendants who are summoned to assist helpless people injured by another's stupidity, should not be compensated if they also suffer injury as a result of the hazardous condition.  Perhaps the one person in ten who agrees with this decision should lie on the ice in a cold parking lot while Good Samaritans debate whether it is safe to come to their aid:  some of us suffer from a dreadful shortage of empathy in this state.

Head Injury and Depression

  The University of North Carolina recently published a study involving more than 2500 retired NFL football players.  The study confirmed that players who suffered concussions during their career are far more likely to exhibit clinical depression years later.  The study directly contradicts the claims by the NFL that concussions don't result in long-term medical consequences, but corroborates the findings of medical studies showing that even "mild" head injuries can have a long-term impact.

    The study documented that NFL players who reported no history of concussion reported a depression rate similar to the population at large.  The likelihood of depression increased with an increase in the number of concussions suffered.  Players who reported suffering three mild head injuries exhibited a twenty percent likelihood of exhibiting clinical depression, compared to a reported rate well under ten percent in the "normal" population.

While the NFL criticized the study for relying upon a survey format, it was professionally peer-reviewed prior to publication and independent experts found that it was likely to be reliable.  The authors and the NFL are currently investigating whether a history of concussions increases the likelihood of cognitive impairment and early-onset Alzheimers or dementia. 

Previous medical studies have documented the serious long-term consequences which may flow from "mild" closed head injuries in civilian populations.  High profile examples from the NFL were cited by both sides of this debate to support or contradict these claims.  A neuropathologist claimed that repeated concussions probably contributed to the November 2006 suicide of Philadelphia Eagles linebacker Andre Waters, and New England Patriots linebacker Ted Johnson's neurologist linked his depression and cognitive decline to on-field concussions.

Studies performed outside the NFL have also documented a higher-than-expected fatality rate among head injury survivors, which experts attribute to a combination of impulsiveness, impaired judgment and depression. 

It seems apparent that victims of even mild closed head injuries should be examined and watched carefully for head injury sequelae, particularly including clinical depression.

Discrimination in pay

President Bush's impact on the U S Supreme Court was apparent on May 30, 2007, when his new appointments formed a 5-4 majority that rejected a woman's lawsuit over a disparity in pay.  Lilly Ledbetter was the only woman among 16 men at the same management level with a Goodyear Tire plant in Alabama.  She was the lowest paid manager, despite having more seniority than several of her peers.  The disparity in pay was as much as forty percent, as she earned $3727.00 per month and the lowest-paid man earned $4286 per month.

Goodyear conceded that Ledbetter did not learn of this disparity until late in her twenty-year career with the company.  The Civil Rights Commission and the Federal District Court agreed that she was within her rights to sue over the disparity when she belatedly learned of it.  A jury awarded her back pay.  The Supreme Court majority, including Bush's new appointments, and Justices Thomas, Kennedy and Scalia, held that Ledbetter was barred from bringing her action because she didn't sue within 180 days of the first disparate pay increase--even though she was unaware of the disparity at the time.

The opinion written by new Justice Alito--who replaced Sandra Day O'Connor and reversed her probable vote--held that Ledbetter could not base her claim "on the cumulative effect of individual acts", despite their substantial and unfair impact on her.  Justice Ginsberg's dissent, with four Justices signing, stressed the unfairness and impractical aspects of the majority's decision and pointed out that it will be up to the Congress to re-write Title VII to address the Supreme Court majority's overly-constricted interpretation.

The Michigan Courts punish patience

  In an update to the "one year back" rule debate, on May 24 the Court of Appeals reluctantly denied the Henry Ford Health System's right to collect for $130,000.00 in care it provided to a badly injured young girl after a car accident.  Henry Ford provided the care in 2004 and Traverlers Insurance did not deny the claim until May of 2005.  When the conservative majority of the Michigan Supreme Court decided Devilliers v. Auto Club, holding patients and providers to one year in which to sue, (and overturning 19 years of previous practice), the Henry Ford system had only one day in which to sue Travelers.  The Appellate Court judges determined that the Supreme Court left them no alternative but to deny Henry Ford's legitimate claim as a result of this "loophole" or technicality, despite its unfairness.

This is just one of many recent Michigan decisions which punish a party with a legitimate claim for its exercise of patience in negotiating with insurers prior to filing suit.  Unfortunately, a majority of the Michigan Supreme Court is willing to punish potential litigants who have patiently attempted to negotiate rather than jumping to litigation, despite paying lip-service to a desire to make the courts less crowded, more efficient, less expensive and more "fair".

FDA immunity in Michigan

The recent disclosures regarding Avandia, a commonly prescribed Type II diabetes drug, confirm yet again the absurdity of the Michigan law granting complete immunity to drug manufacturers if their drug was approved by the FDA.  When the New England Journal of Medicine reported that Avandia may increase the risk of heart attack by as much as 43 percent, researchers then documented that a leading diabetes physician  in North Carolina had warned the FDA of a "worrisome trend in cardiovascular deaths" seven years ago.  Five years ago a safety monitoring group within the FDA expressed similar concern.  These concerns were not examined by the FDA at the time of approval of the drug in 1999, and nothing was done by the agency when it learned of legitimate concerns after approval. 

In 2005 when the manufacturer reported a study of its own that showed a 31 percent increase in cardiovascular risk, the FDA refused to act, in part in reliance on the manufacturer's claim that it had additional contradictory studies.  These studies are only being discussed publicly today because the manufacturer agreed, as part of a settlement with the State of New York arising out of Paxil deaths among teens, to make the results of its clinical studies public.  When the manufacturer posted its research on Avandia, physicians from the Cleveland Clinic subjected them to analysis and documented the extraordinary risk involved.

It is a travesty that a wealthy industrial like the United States' pharmaceutical industry is not obligated to make public its safety data.  Some six million Type II diabetics take Avandia, for example.  It is even more repulsive that this data is not closely monitored by the FDA, which, unfortunately, is more-or-less controlled by manufacturer's representatives.  It is outright despicable that the right of Michigan citizens to seek redress for unsafe or negligently marketed medications has been delegated to a governmental agency that appears to be under-funded, under-motivated and under-regulated.

Severe injuries, pain and depression

An April, 2007, study by the University of Michigan Health System documented some of the connections between pain and depression.  The study noted that people suffering from severe pain are at high risk to suffer severe depression, as well.  We have observed this same phenomenon over several decades of injury practice and we have documented it with many of our clients' treating physicians.  The U of M study goes a step further to quantify the problem. 

The researchers at U of M noted that depression is often caused by chronic pain, alone.  In addition, inability to participate in physical activity, inability to maintain fitness levels and general deconditioning all contribute to cause depression or to make it clinically more severe.  Jarring life transitions resulting from injury and financial concerns also can contribute.  None of this is rocket science or jarring, but it is good to see the problem documented and confirmed in a reliable way.

The existence of depression is a complicating factor in healing and coping, as well.  The U of M study documented that people reporting moderate to severe depression were 11 times more likely to report that they are experiencing difficulty sleeping.    They are also likely to experience injury to social relations and loss of social support, difficulty with alcohol or drug use, difficulty with maintaining even a part-time job, and difficulty with fitness, weight control and hygiene.

If you or a loved one has experienced a severe injury, please be alert to the symptoms of anxiety and depression.  If you observe them, discuss them with the care givers to assure that the medical problems experienced by the patient are not compounded by clinical depression.  Over the years, we have observed a number of our clients who were very severely injured--particularly men--but who refused prescription drugs for depression in the following months.  Eighteen months to two years later, many of them were willing to acknowledge that their overall recovery and well-being was delayed as a result, and that their pain control and emotional health did not gain momentum until they began taking anti-depressants and re-establishing healthy sleep patterns.

Deadlines to Sue

      One of the many "reform" decisions issued recently by the Michigan Supreme Court addressed the issue of how long an injured person, or people providing services to the person, can delay before filing suit against an auto insurer for PIP benefits [PIP benefits are medical expenses and three years of lost wages or domestic services, payable normally by the injured person's own insurance].  From the 1970s when Michigan's No Fault Act was adopted, the Supreme Court had consistently held that the injured person, or a service provider, could delay suit until the auto insurer actually denied the benefit claim in writing.  This approach made sense, since it encouraged the parties to negotiate claims without litigation and it allowed unsophisticated consumers the opportunity to manage claims themselves, without fear of inadvertently losing the right to enforce their rights.

         The arch conservative Michigan Supreme Court majority decided to overturn this rule, however, and reversed 19 years of law that had appeared to be expressly resolved and stable.  It held that the injured person, or persons providing services to the injured person, must sue within one year of incurring the original expense, or lose their claim.  It also held that insurers who negotiate through this deadline are not estopped to raise the deadline to deny the claimant the right to sue.  It also applied this deadline to infants and incompetent persons, and denied them the protections of extended deadlines that the Legislature had previously established in the Revised Judicature Act.  In other words, it took away all the established exceptions and protections and instituted a hard-line one year statute of limitations protecting auto insurers from PIP lawsuits.  Unfortunately, most citizens are unaware of this one-year deadline, or of the fact that if a provider's bill is not paid by the first anniversary, and no suit is filed, the billing may become an obligation of the family.

          Since this change in interpretation came as a surprise to most claimants and medical providers, it caught many flat-footed, holding claims that were legitimate but had not been placed in suit while the parties were negotiating compromises.  Under the existing rules, the claimants and their service providers would have enjoyed the right to exhaust negotiations and then sue within a year if no satisfactory compromise could be reached.  The Supreme Court overturned that right and also made its decision retroactive, so that people who had patiently attempted to negotiate without rushing to Court were punished by the complete denial of their [now stale] claims.  We can't imagine how many millions of dollars this dropped in to the laps of auto insurers in Michigan, in one fell swoop.

          While conservative "reformers" have paid lip service to reducing the amount of litigation and the need for families to aggressively protect their rights by hiring lawyers and involving the courts, this decision helps to demonstrate the real goal of "insurance reform":  preserving and enhancing the profit margin of Michigan's insurers.  No wonder they were willing to contribute heavily to the Justices' re-election campaigns.

          The message for families with a severely injured loved one is also clear:  consult with a knowledgeable person to confirm your rights and don't trust or rely upon an insurance representative.  While some insurance adjusters and case managers are honest, dedicated and decent, many are not; and families have too much at risk to rely upon their [conflicted] advice exclusively.  Most experienced attorneys will consult with a family for free, and capable attorneys can be hired on an hourly or contingent fee basis, depending on what is best for the family, to provide knowledge and guidance.

Fox in the Henhouse, redux

          In yet another example of Bush cynicism, the President has nominated the number two lobbyist of the National Association of Manufacturers to head the Consumer Product Safety Commission.  The NAM is frequently "at odds" with the CPSC, according to media accounts of the appointment, and recently lobbied the Federal government to relax the requirements governing when a company must notify the CPSC of a defective product.  The American Academy of Pediatrics criticized the appointment, noting that the appointee, Michael Baroody, had a history of acting "in opposition to the interest of consumers"...and "opposed numerous initiatives to protect children and the public from unsafe products". 

          Now, it will be Baroody's job to spearhead the CPSC's efforts to protect us.  To assure that he is inclined not to embark too aggressively on this new role, his former employer, the NAM, wrote him a $150,000.00 bonus as a departing gift, on top of his $380,000.00+ salary.  Baroody reported this "bonus" to the White House, as he is required to do (since it was negotiated after his appointment was announced), however, neither he nor the White House would provide his notification or his "severance agreement" from NAM to the media.

Other notable examples of Mr. Baroody's work include efforts to limit the liability of asbestos manufacturers and an effort to persuade Governor Pataki of New York to veto legislation intended to reduce the fire risk associated with cigarettes.

Insurance propaganda

The first week of May, one of Michigan's major insurers sent a fancy three-color mailing to Michigan households decrying and criticizing the fact that "lawsuits are more common and are resulting in bigger payouts".  The company cited no statistical support for this claim, which was made as part of an attempt to persuade families to purchase more expensive coverage to protect their own family and its assets.

Sadly, the entire premise of the claim is completely false.  Following extensive insurance "reforms" and a "reform" campaign by Michigan jurists, the number of injury claims is substantially reduced state-wide.  For example, despite significant population growth in Grand Traverse County since 1991, the actual number of personal injury lawsuits IS LOWER THAN IT WAS FIFTEEN YEARS AGO.

Insurers use this form of propaganda to induce consumers to continue to pay high premiums, to prepare them to serve as "stingy" jurors, and to justify additional "reforms".  Because the Legislature does not require them to open their books, no one correlates these false claims with insurance company reported record profits (described in the spring 2007 New York Times) and unjustified limits on innocent victim compensation.  Consumers deserve to see "reforms" that make the system more fair, rather than more lucrative for corporations.

Road Liability "reform"

Responsibility for unsafe roads:  The most extreme majority of the Michigan Supreme Court has launched a five-year crusade to eliminate the rights of victims injured by the errors of government actors.  In May of 2007, they took one more step in that direction by overturning several decades of established Supreme Court decisions addressing the notice requirement for road defects.

The statute allowing injured citizens to sue if they are hurt by an unsafe road allows suit only if the road authority receives a detailed notice of the claim within a couple of months of the injury.  When the Supreme Court interpreted this statute on several occasions in the past half-century, it held each time that the short notice period was only Constitutional and legal if it was applied only if the road authority could prove that it suffered prejudice as a result of not receiving notice:  after all, the purpose of the notice requirement was to assure that the unsafe condition could be investigated and relevant evidence preserved by the road authority.

This month, the Supreme Court overturned these long-standing decisions and held that the Road Authority can require the dismissal of any claim where it did not receive the early notice--even if it was on the scene within hours and had completely preserved and documented the evidence.  Of course, this decision has nothing to do with preserving "justice", since the pre-existing decisions protected both victims and the road authority of no notice was given and evidence was lost.

This case should be considered alongside decisions that interpreted "reasonably safe road" to include only the road bed, and NOT signs, traffic control devices, or even road shoulders.  The conservative minority says that the statute applies only to road bed maintenance, and not to design characteristics.  It doesn't apply to depressions in the road surface, if they are made slippery by ice or other material, because in that case the "cause" of the problem is the slippery material--NOT THE DEPRESSION THAT ALLOWED IT TO ACCUMULATE.  (We used to believe that this kind of decision about "proximate cause" was a jury decision.)

If the Road authority notices a stop sign knocked down, and decides to fix it in ten months out of next year's budget, it bears no liability for the road remaining unsafe for the rest of the year, because the sign "is not a part of the road".  Whether the downed sign (or any other excluded condition) causes 1 death or dozens, the Road authority never becomes responsible.

The road ends in a rural lake with inadequate warning?  No responsibility, because that represents a "design" flaw--even if a doctor and her three kids drown as a result.  No matter that they are not the first fatality at the site and the Road authority has had years to fix it but does not.

A Traffic control signal continues to malfunction, leading to intervals of conflict at a busy intersection:  sorry, not a "road condition"; no one is liable.  Inadequate barricading at a construction project?  Sorry, the road isn't open for public use--only for local use.  The misleading design of a highway regularly results in people misunderstanding a freeway exit and stiking a T at freeway speed without warning?  Doesn't matter how many fatalities result:  no duty to re-sign or redesign.

Railing missing or not repaired:  not the roadbed; no liability.  The shoulder is deeply rutted or has an exposed culvert:  these wise justices decided that it was designed for travel, so no responsibility.

We have argued for years that it makes no sense to protect government actors from carelessness or stupidity.  The cost of governmental mistakes should be borne by all of us--through the at fault authority--rather than by the victim.  Unfortunately, our representatives have chosen a far less altruistic, less "Christian", approach which apparently meets with the approval of uninjured taxpayers who have been misled by insurance propaganda.

FDA immunity

This week's New York Times contained several related articles and an excellent dramatization of why Michigan's "reform" of liability matters should offend all consumers.  Several years ago, Republican legislators in Michigan granted complete immunity to all drug manufacturers who had secured FDA approval of their product.  In the May 11 NYT, the reporters recounted the Federal Court guilty pleas of three drug company executives who admitted misleading doctors, patients and the FDA about the addictive properties of OxyContin.  The article also contained a reminder that Bristol-Myers Squibb pleaded guilty on May 10 to making false statements to the government about its anti-clotting agent Plavix.

The FDA approval process is only as good as its component parts.  Where approval is based on false safety documentation; where it is secured through biased approval panels made up of drug manufacturing reps or their consultants; where it is policed by politicians who either don't believe in regulation or have placed the wolves in charge of the henhouse, it is unsafe and inexcusable  to grant a  drug manufacturer immunity from suit.  It is a special-interest favor purchased by large multi-national corporations at the expense of individual victims, and one more abuse of the Constitutional right to a jury trial.

What's more, where the Federal government allows companies caught red-handed to buy peace by simply re-paying part of what they stole, and when doctors are paid six-figure "bonuses" by manufacturers simply for administering a particular company's drugs, the entire system of regulating drugs has come undone.  [Refer to the NYT OpEd  of May 14, confirming that some cancer treatment facilities and oncologists add 25 percent to their gross income by providing anemia drugs to patients and then receiving so-called "rebates" from the manufacturer:  turns out, not only were they making a fortune (an Oregon group of six doctors earned $1.8 million in last year, alone), but by administering higher doses, they were increasing the risk of infarct and stroke to an unacceptable level.]  I'd be shocked if it turned out that their patients knew their medical decisions might be influenced to the tune of 300K per doctor.

Sadly, these drug manufacturing companies and their consultants make so much money by these practices that ordinary consumers and victims will never shake their hold on the Federal and State government and the cash-swollen political election and regulatory process.  That is bad enough.  When the same income-tainted process also blocks the entrance to the courthouse for injured patients, "reform" becomes a description worthy of Orwell or Kafka.

Notice of Defect

The first week of May, the Michigan Supreme Court continued its assault on precedent, when 4 of the 7 Justices decided to overturn more than thirty years of precedent in dealing with the statutory immunity granted to governmental entities.  One of the statutes addressing immunity in Michigan requires that governmental entities receive actual notice of an injury within sixty days of the date of injury.  Several decades ago, the Supreme Court addressed this issue in a series of cases, and held that the governmental entity could raise the issue of compliance with these notice requirements only if the governmental entity suffered actual prejudice as a result of the injured person's failure to give notice. 

The activist majority of the Supreme Court concluded that these prior cases were in error and overturned these decisions.  The four consenting Justices concluded that since the government does not have to allow suit at all, it may condition suit in any manner it chooses, even if the injured party is a child or physically or mentally disabled.  The statute provides a six-month deadline "escape clause" in some cases, and in other limited cases, it may allow notice immediately after a disability is removed.  In total, the decision represents a denial of justice for many people--particularly disabled people, based upon a reactionary and arbitrary interpretation of victims' rights.