TOV Injury and Safety Blog

Sixth Circuit reverses lower court, dismisses claims against officers who shot 15 year-old in his closet

Dorothy Chappell sued on behalf of the Estate of Brandon McCloud, alleging that the Cleveland Police officers who fatally shot McCloud several times, should be responsible for his death.  The City argued that the officers did not act unreasonably, and therefore that they should be immune from damages for killing McCloud.  The lower court denied the City's motion for summary disposition, holding that there were questions of fact regarding the reasonableness of the officers' claims.  The Sixth Circuit disagreed, however, and dismissed the case, holding that no reasonable person could dispute that the officers acted reasonably, given their testimony that McCloud was wielding a knife when he "lunged" from his bedroom closet.

Michigan Supreme Court says a housewife has "economic" value

In a landmark ruling perhaps staking out the high-water mark of the insurance industry's dominance of Michigan jurisprudence, yesterday the Michigan Supreme Court ruled that "Yes, Virginia, taking care of the kids has economic value."  For more than ten years, the Supreme Court majority hand-selected by John Engler had given the insurance industry literally everything it asked for. 

Regardless of precedent, common sense or sound public policy, insurance industry and Chamber of Commerce advocacy was rewarded in every context.  This week we learned that with last November's defeat of one of Engler's lackeys, perhaps the tide has crested.  In a 4-3 decision, three Democratic Court nominees and one Republican voted to recognize that a mother's household contributions have economic value.  One would have thought that even to arch conservatives, this principle would have been sacrosanct.

Progressive's attempt to avoid coverage is rejected in death case

Progressive wrote insurance on the trucks operated by Rozafa Transport, however when William Neill was killed during the unloading of one of Rozafa's trucks, Progressive denied coverage.  The insurer admitted it had coverage if liability arose out of the "use, ownership or maintenance" of the semi-tractor and trailer, however, it argued that since a forklift was being used in the unloading process, the coverage was eliminated by an exclusion relating to injuries "caused by movement..of an unattached..mechanical device."

Family of murder victim can sue contractor who failed to report escape immediately

Sharon Brooks, P.R. of the Estate of Dominique Wade sued Starr Commonwealth after a juvenile escapee killed Mr. Wade.    Starr ran a residential treatment program under contract with Wayne County.  Despite a long arrest record and a history of violence and escapes at Starr's facility, Michael Kirksey was not placed in a locked facility.  After his fourth escape (he had not been disciplined for the prior three, either), he killed Mr. Wade.  Wade's Estate claimed that Starr could be held responsible for the death because it violated a safety statute requiring that it "immediately" report an escape to police.  In this case it did not report the escape of Kirksey and three others for nearly two hours.

Court refuses to interpret Release to immunize third-parties: no free ride for State Farm

Regina Randolph was struck by a car, landing in the center of a Pontiac Street.  While bystanders activated flashers and attempted to assist her, she was struck again by a drunk driver and killed.  Titan, the cheap insurer for the first driver, paid its liability limits of $20,000.00 in settlement to her family and required that they execute a release.  The family then sued the drunk who last struck Randolph and the bar where the drunk had been drinking, along with Randolph's own Uninsured Motorist insurer, State Farm.

State Farm and the bar persuaded the trial court to dismiss the family's claims against them, arguing that they had been released by the boiler-plate language in the earlier Titan release.  The Court of Appeals reversed.  Two judges distinguished the language and facts of this case from the Romska v. Opper decision, where a similar argument was upheld.  These judges ruled that this incident involved two separate "accidents" and therefore the broad release language in the Titan release did not apply to State Farm. 

In a brief but well-reasoned concurrence, Judge Wilder pointed out that by prior Supreme Court precedent, State Farm and the bar were not direct "third-party beneficiaries" intended to benefit from the language of the Titan release.  In Koenig v. South Haven, the Engler majority had held that the family of a young man who drowned on an ill-protected breakwall could not sue the City for failing to maintain the breakwall in accordance with its contract with the State, as potential injury victims were not "intended third-party beneficiaries."  Judge Wilder logically pointed out that if this law applied to deny injury victims' rights, it should also apply to potential defendants who claimed to be third-party beneficiaries to a contractual arrangement.

The case is Brown v. State Farm Automobile Insurance, et al.

Wrongful Death allocation evaluated

In a brief paragraph, the court unanimously rejected the claim that the allocating court should not consider all wrongful death distributions:  the court is required to consider all of the relevant circumstances, and prior distributions are certainly relevant.

Next, the Court pointed out that the lower court's decision was supported by evidence that after the legal separation, the widow did not enjoy a meaningful relationship with the decedent.  There was even evidence that she had entered into a new romantic relationship with a third party.  Under the circumstances, it was not error for the lower court to weigh credibility and determine that no further award to the widow was appropriate.

Complications of being "overcome by the spirit of the Lord"

Judith Dadd answered an "altar call" made by the pastor of her Eaton County Mount Hope Church during a leadership rally.  She was "overcome by the spirit of the Lord", fainted, and fell backwards striking her head.  She had apparently been overcome in this manner "over 100 times" during her membership in the church.  The pastor invited members of the congregation to make these altar calls and assured them that if they were "slain in the spirit" and collapsed, ushers were trained to catch them. 

When the church informed Dadd that it would not pay more than $5,000.00 in medical expenses, she filed suit, claiming a head injury and arguing that the Church should have fulfilled the pastor's promise to protect "overcome" parishioners.  Her pastor responded by suggesting she was faking and might be trying to commit insurance fraud (apparently he felt the spirit of the Lord had left her just as abruptly as it had overcome her). 

Sixth Circuit reinstates death claim against Providence Hospital

The family of Marie Irons sued Providence Hospital after it failed to admit Irons' estranged husband to a psychiatric unit.  A phyisican who examined the husband in the Providence E.R. had recommended admission, but apparently a second doctor counter-manded the order and the husband was discharged.  Ten days later, he murdered Irons with an axe.  The case had been dismissed in 2007 by the trial court after the St. John Health System, which runs Providence, contested the Estate's standing to sue and the application of the Emergency Medical Treatment and Active Labor law.  The appellate judges of the Sixth Circuit concluded that the lower court was in error in deciding factual questions that should have been considered by the jury.

Successor Personal Representative of Estate can file suit after limitations period has run on initial P.R.

In McGill-Kohler v. Hasan and North Oakland Medical Center, the Court of Appeals reaffirmed the right of a successor Personal Representative to file a wrongful death claim, if the claim is filed within two years of the successor's appointment by the Probate Court.  The trial court had dismissed the claim, measuring the two-year statute of limitations from the date letters of authority were issued to the original P.R.  The case had been dismissed once before, without prejudice, when the initial P.R. failed to file suit within two years of her appointment.  The Estate's attorneys took advantage of the wrongful death savings provision to secure a new limitations period by appointing a new P.R.

Ambulance transfer of entubated patient is an emergency resulting in immunity

Alvin Provot needed to be transferred to a different facility because the ICU where he was placed on a ventilator did not have services for chronically ventilated patients.  In preparing for the transfer, he was paralyzed and placed on mobile ventilating equipment.  The ambulance attendants claimed that this equipment was functioning properly initially, however, 25 minutes into the transfer, Mr. Provot "coded" and the EMTs concluded he was not being properly ventilated.  They did not attempt to resuscitate him manually.  Instead he was transported to the nearest Emergency Room, where he was pronounced dead.

Court upholds malpractice verdict over insurer's frivolous defenses

Tim Egeler sued Bradford Wylie, M.D. and Chelsea Area Primary Care, PLLC, after Wylie prescribed an antibiotic for Egeler's wife that is contraindicated.  His wife suffered from myasthenia gravis, and the antibiotic Ketek contains a clear product warning, advising doctors not to prescribe for M.G. patients:  the warning alerts doctors to the potential for a life-threatening respiratory collapse.

Within a half hour after taking the antibiotic Wylie prescribed, Dorothy Egeler collapsed and suffered severe anoxic brain injury before she was revived.  Nine days later she was removed from life support and passed away.  The doctor's insurer denied that the respiratory collapse was related, claiming that her death was coincidental.  The jury didn't buy that and awarded that ultimately resulted in a judgment of more than $800,000.00.  The Defendant appealed arguing several claims of error:  the Court of Appeals unanimously dismissed the claims and upheld the judgment, with minor adjustments.

Insurers' argument that wrongful death act does not allow recovery for lost household services is rejected again.

It would seem to be a Neanderthal position, but Michigan insurers, intoxicated by their success before the Engler Supreme Court, have been arguing that a family cannot collect damages to compensate them for a decedent's services.   In other words, if a mom was a stay-at-home mom and didn't work outside the house, the insurers would place no value, whatsoever, on the domestic services she provided her family.  The party responsible for her "wrongful death" would owe no compensation to the family for her "economic" value.  The Court of Appeals has twice rejected that theory in the past two months.  In Thorn v. Mercy Memorial Hospital, and again in May v. Mercy Memorial Nursing Center, el al., separate panels of the Court of Appeals unanimously rejected this argument and identified domestic services as a compensable element of economic damage.  With Justice Cliff Taylor happily--if involuntarily--retired from the Supreme Court, the potential for reversing these decisions is very small.

Traffic accidents are primary killer of teenagers in developed world

A recent report by the World Health Organization addressed childhood fatalities in developed and undeveloped countries.  It noted that world-wide, accidents kill 830,000 children each year--the equivalent of all of the children in metropolitan Chicago.  The major causes are drowning, burns, traffic accidents, falls and poisoning.  In the developed world, motor vehicle collisions are the primary threat to kids.

Michigan Supreme Court reduces malpractice death recovery

The MIchigan Supreme Court recently decided not to hear argument on the Young v. Nandi, et al., medical malpractice wrongful death case.  The Plaintiff in Young had obtained a jury verdict against his wife's doctor.  The insurers for the doctor and his practice had raised a number of appellate issues, most of which were dismissed by the Court of Appeals.  The Supreme Court upheld the fact of the verdict and rejected the Defendant's argument that  the higher cap on non-economic damages ($500,000) can never apply to a death case because "an estate can't suffer neurological damages".  Nevertheless, the Court also reduced the verdict to the lower cap ($280,000.00) because the wife might have recovered brain function and communication ability if she had ever recovered enough to be weaned from the respirator she was placed on after the Defendant's malpractice.  That's right--her neurological dysfunction arising from being sedated and ventilated  (placed in a coma, in other words) was not "permanent" because if she hadn't died, she might have improved.

The Court is currently split, with 3 Republican activists arguing that a dead malpractice victim should always be limited to the lower ($280,000) cap on non-economic damages.  The four remaining justices essentially believe that at a minimum, a person suffering permanent, serious neurological injury before dying--which would qualify for the higher cap--retains the right to recover the higher cap even if he or she later dies prior to a verdict being rendered.

On the bright side, the entire  Court rejected all of the insurer's additional arguments of error except its claim that a hearing must be held to determine the proper award of attorneys fees to the Plaintiff arsing out of the Defendant's rejection of case evaluation.  The Court dismissed for a second time an insurer's claim that the victim's failure to schedule a hearing on the victim's Blue Cross medical expenses within 10 days of the verdict relieved it of paying  for those expenses. The Court noted that Blue Cross had been advised of its lien and the purpose of the statute had been served. (Basically, the Defendants wanted to force the victim to pay Blue Cross for the treatment the Defendant's negligence had caused, out of the victim's $280,000.00 non-economic recovery.)

Fatalities in the workplace

Recent figures released by the Occupational Safety and Health Administration raised some controversy, but also shed light on developments in the American economy.  The number of workplace fatalities was down significantly when compared with figures from 1992.  Union members pointed out that most of the recent reduction occurred in transportation industries which are not governed by OSHA.  We presume the numbers are also a reflection of more dangerous manufacturing activities moving overseas in the past 15 years.  The four occupations with the highest fatality rates in 2007 were fishing, logging, aircraft crews, and structural iron and steel workers.  Fatal falls rose 39 percent from 1992, while workplace homicides increased by 13 percent in the past year,  and deaths among police officers rose by 30 percent from 2006 to 2007.

Fifteen million dollar damage award upheld; discussion of race questions in jury selection

A recent case against an airport shuttle operator provided insights into the operation of damage claims where there is a "deep pocket" who has admitted fault.  It also addressed questions of race in the context of jury selection, and the threshold for proving head injury under the no fault law. 

Leading cause of death for teens age 15 to 19

Motor vehicle accidents are the leading cause of death for teens between 15 and 20.  We have seen enough of this carnage over the past 30 years to anecdotally confirm this statistic.  The most dangerous time to ride with a young driver is after 10 pm, and a car with four teens driven by a sixteen-year old driver is more dangerous, statistically, than riding with a drunk.  Several states, including Michigan, have responded to these statistics with "graduated" drivers licenses that limit young driver's privileges.  These graduated programs have reduced teen deaths in the affected states by from 20 to 40 percent.

Treatment of widows and children

   Sometimes we lose track of how humane our culture is when contrasted with much of the rest of the world.  It is always a disaster, emotionally, when a father and husband dies--particularly if the family is young.  In the United States, however, we have several safety nets in place that at least alleviate the suffering of the family on a financial basis.  Between Social Security, Workers Compensation, life insurance, welfare and the potential of wrongful death recoveries, many families are at least maintained at poverty level.  A few are even able to maintain their pre-existing standard of living.

     This is not the case for widows and children in much of the world.  Although it is exceedingly rare for a widow to throw herself on her husband's funeral pyre, as happened just five years ago in India, it is still true that the plight of many widows and children is desparate after the death of a husband and father.  In rural Nepal and India, widows are still expected to shave their heads, sleep on the floor and avoid being seen by men for the rest of their lives:  what a shameful waste.  Self-immolation wouldn't seem so desparate when compared with a lifetime that bereft of normality.

     In Afghanistan, where nearly two million women have lost husbands in decades of civil war, widows have no means of supporting themeselves or their children.  In Tanzania, they may well be denied the opportunity to inherit their husband's property.  It is estimated by the United Nations that there are 30 million widows in India struggling to provide for themselves and their children, under various legal and cultural limitations and degradations.  Some estimate that 100 women worldwide face similar hostility and indignities.

     While we work to better the condition of widows and children worldwide, we must also celebrate and preserve what we have created in this country.  We must be vigilant to protect this modest safety net we have created from the pressures of industry and commerce which would--left unchecked--relegate the protection of workers and their families to churchs and non-governmental charities and other "thousands of points of light".