May 6, 2010

Bike Safety in an Evergrowing Bicycling Culture

I was driving home today and listening to the NPR discussion about bicycling culture and growing number of bicycles on the road. As expected, a large percentage of the discussion concerned bicycle safety and preventing bicycle accidents. The situation is particularly difficult in major cities like Providence or Boston where a large number of bicyclists commute to work and bike messengers are everywhere delivering packages.

As an avid bike rider myself, I know how dangerous city streets can be. I have had my fair share of falls and close calls. Fortunately, no accident has been serious, but I remain constantly defensive on the road. Drivers are not accustomed to looking out for bicyclists and we are often lost in blind spots or completely unseen. This creates an obviously precarious environment for bikers. One commentator on the NPR show also pointed out how some drivers, particularly teenagers, find it funny to beep or yell out of windows to try and startle bikers.

Of course, any bike accident is dangerous. An unprotected biker is likely to suffer fractures, brain injuries, and even death in an accident with a 2000 pound vehicle.

Many of those on the discussion panel also pointed out the need for bikers to adhere to rules of the road and take steps toward their own safety. Too many bikers tend to run stop signs or red lights, ignore yield signs, and assume that they are safe along the side of the road. To prevent injury on a bike, bicyclists must ride defensively and take every precaution. Adhere to traffic signals, wear protective gear, and never assume that a vehicle is aware of your presence.

The panels envision an increased use of bicycles for daily commute and exercise. In many European countries, in which gas prices have topped 5 or 6 dollars a gallon for years, bicyclists are absolutely everywhere. I expect that we may see a similar upsurge in bicyclists as gas prices continue to rise, particularly in the cities of Providence and Boston.

May 4, 2010

Black Eyed Peas Record Setting Download Confirms Music Industry is Forever Changed

The Black Eyed Peas insanely infectious song "I Gotta Feeling" has become the most downloaded song in history topping 5 and a half million legal downloads. I would venture to guess that the number of illegal downloads would bring the total number to well over ten million.

Itunes has also recently reported that it has sold ten billion downloads from its site. That lucky track belonged to Mr. Johnny Cash. These numbers, only a few years after MP3 became a household term, confirms that the music industry is forever changed. Think about it - 10 Billion downloads!

The Recording Industry Association of America would likely say that the internet has decimated the music industry due to piracy and illegal downloading of music. This is evidenced by the number of lawsuits against every day people who illegally downloaded a few songs off limewire or similar peer networks. I think it is preferable to say that the internet has reinvented the music industry. While big name performers and major record labels may feel their wallets tightening, artists and musicians across the globe can thank the internet for new opportunities that would never have been available before.

Social networking,, Myspace, Internet Radio, youtube, and sites like Itunes, offerring legal downloads allow anyone who has recorded a song or full length CD to become a professional artist. A savvy internet user can create buzz about their band and generate sales without the help of major record label or publishing companies. In fact, many well known artists are now publishing their own records and/or releasing albums solely online. With the right contacts and initiative, artists can also find commercial venues to license their music. No longer do artists have to wait and pray that a record label will somehow discover them and make them famous.

While it is easier to get one's music out to a larger audience, certain precautions still need to be made. It is imperative that you trademark your artist name, properly copyright your material (and I don't mean mailing a CD to yourself), and learn about music publishing and online distribution. If necessary, it is also helpful to have a band partnership agreement so that there are no disputes when the money starts rolling in or the lead guitarist decides to move to Vegas. When you've done all that - your may be off and running. Luckily, my office can help with all of this.

I have advised and represented many artists and I can help jumpstart your music career.

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May 1, 2010

Will New Jersey Allow Drunk Drivers to Sue the Bars That Served Them?

I found this interesting article on the legal blog watch. Following my recent post about the Red Room and liquor liability, comes news that a New Jersey Appellate Court has now ruled that drunk drivers, injured in an auto accident of their own causing, can now sue the bar or club that served them despite obvious intoxication.

I suspect that such a ruling will be shot down at the Supreme Court level or overturned by the legislature, not necessarily because the reasoning is flawed, but because public policy demands it. In fact, the ruling is already in conflict with a New Jersey law that states a driver convicted of DUI shall have no cause of action over his or her injuries. A reading of the decision shows that the Court gave greater weight to the Dram Shop Act than to the above stated law. The NJ Dram Shop Act, similar to our own, indicates that ANYONE injured as a result of the negligent service of alcohol may have an action against the licensed provider of that alcohol. The New Jersey Appellate Court reasoned that there is no bar to ANYONE including the drunk driver.

Drunk drivers are often vilified because it is well known that it is a reckless and dangerous activity that puts peoples lives at risk. This is indisputable. Unfortunately, one of the effects of alcohol is to reduce our ability to reason and use proper judgment. Isn't it reasonable, therefore, to hold the negligent server of alcohol responsible since they profit heavily from increased intoxication. Please know that I am only playing devil's advocate here, and I understand that a reasonable person would cut himself off before he gets to a point in which he can no longer drive.

I found this ruling interesting. It expands the scope of the Dram Shop Act, and I believe rightfully so. That is not to say that drunk drivers should be awarded for their reckless behavior, but a licensed vendor of liquor, an intoxicating and dangerous drug, needs to be more carefully regulated and held responsible when they place profits over safety. Again, I imagine that this ruling will be overturned for public policy reasons - but it is interesting nonetheless.

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April 27, 2010

Older Motorcyclists Suffer More Frequent and Serious Injuries

The Boston Globe had this interesting article discussing not only the growing number of older bike riders, but the fact that these motorcycle riders sustain more frequent and severe injuries than younger riders.

The mean age of motorcycle ownership has risen in the past decade from 33.1 in 1998 to 40.2 in recent years. Whether 40 is the new 20 or baby-boomers are reconnecting with their youth, the fact is that bike riders are older in age. The study highlighted in the Globe article, indicates that riders over 40 years old sustain more serious injuries, have longer hospital stays, and increased risk of dying from motorcycle accidents than riders under 40 years of age.

Some of the troubling findings include:

  • rib fractures are twice as common for riders over 40

  • 32% of bike riders over 40 required stays in the intensive care unit compared to 27% of riders under 40

  • Riders over 40 were more likely to suffer from pneumonia, infections, or blood clots

  • Older riders are twice as likely to die from less serious injuries

Citing the State Department of Health, the Globe report also shows that in Massachusetts, the rate of motorcycle related deaths and injuries among 55 to 64 year olds increased by 400%.

As the body ages it is less able to deal with trauma and this is the reason cited for these startling statistics. For instance, older riders have thinning bones and less resilient tissue. Older riders are more likely to have pre-existing complications such as diabetes and heart problems.

Finally, the study reported that helmet use is only around 73% for both the under and over 40 age groups. This is far too low for any age rider because wearing a helmet is the single easiest thing one can do to prevent serious injury.

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April 25, 2010

Examining the Link Between Cerebral Palsy and Medical Malpractice

Cerebral Palsy is a permanent disorder affecting motor skills and coordination. It is caused by damage to the motor control center of the brain (cerebrum) and can occur in utero, at birth, or up to three years after birth. Newborn children may not immediately display signs and symptoms of Cerebral Palsy but you should immediately contact a doctor if you notice any of the following:

  • poor coordination
  • stiff muscles
  • unusual posture
  • involuntary movements
  • difficult or delayed crawling and walking
Cerebral Palsy and Child Birth Medical Malpractice

There are many forms of Cerebral Palsy and the condition can occur for any number of reasons, some of which are unavoidable. A percentage of Cerebral Palsy cases, however, occur due to medical error during childbirth.

Infection, head injury and lack of oxygen are three of the ways in which Cerebral Palsy can occur during childbirth. A few of the mistakes that doctors might make during delivery leading to Cerebral Palsy are:

  • Failure to detect and treat a prolapsed umbilical cord
  • Improper use of forceps and/or vacuum
  • Leaving the child in the birth canal too long despite lack of oxygen
  • Inadequately responding to fetal distress or changes in the fetal heart rate
  • Failing to perform a C-section despite fetal distress
  • Failure to identify and treat seizures after delivery

All medical malpractice cases are a challenge and the burden is on the plaintiff to prove that a child's Cerebral Palsy was caused by doctor error and not another cause. If your child has recently been diagnosed with Cerebral Palsy, especially if the child had a difficult birth experience, it is in your best interest to contact an attorney right away.

Damages for medical malpractice

Victims of Cerebral Palsy are unable to operate in society and in the workforce at the same level as others. They may also suffer a reduced IQ. Therefore, Cerebral Palsy is truly a life changing condition. While it may be impossible to place a value on such a condition, one report conducted in 2003 suggested that those suffering from Cerebral Palsy lost $921,000 due to medical expenses and inability to work.

This amount, which already seems slightly low, does not include damages for pain and suffering which could be in the millions.

Unfortunately, there is no known cure for this terrible condition.

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April 22, 2010

Some Answers if you Have Been Hurt in a Car Accident and Do Not Have Health Insurance

This topic is a big one and comes up very often. While our federal government is working out a new health plan for our Country, the fact remains that roughly 46 million people in America do not have any health insurance, including 140,000 people in our small State of Rhode Island. Many people without health insurance have no idea what to do following an auto accident even though they are seriously hurtdiscount-card.gif.

The at-fault driver will be responsible for all of your medical bills. Unfortunately, you will not receive this money until the case is settled or a verdict is reached at trial. That means you could be waiting several months to a few years. There are options, however, and an experienced auto accident attorney can help you through the process.

In Rhode Island, many auto policies contain Medpay.

Medpay acts just like health insurance. If you, or the owner of the vehicle you were in at the time of the accident, has medpay on the auto policy, this coverage will pay all of your medical bills up to either $2500 or $5000 depending on the policy. Many people are unaware that medpay exists, but it is a very affordable coverage that is often grouped with a "full coverage" policy. This money comes directly from your insurance company so you do not have to wait as with a settlement or jury verdict.

Massachusetts drivers have personal injury protection (PIP)

PIP will cover you for up to $8000 in medical bills if you have a Massachusetts auto policy and no health insurance. Like medpay, this money is available to you right away and can help with emergency room bills or necessary diagnostic testing such as MRI's and CT scans.

What if there is no medpay, no PIP, and no health insurance?

Honestly, this could get a little tricky. Understand that you have a right to be seen at an emergency room following an auto accident. If they know that you have no health insurance, the care may not be the best, but they will at least stabilize your injuries. Hospitals and emergency rooms often have to wait for payment and if they know that you are represented by an attorney, they will often wait to receive payment at the time of settlement.

In addition, many doctors, chiropractors, physical therapists, and other specialists, are willing to treat your injuries right away and wait for payment from the accident settlement. The more trusted your attorney, the more likely a doctor or specialist will trust him or her to pay the bills when the claim is resolved.

I have an excellent reputation among doctors and medical providers in this community and can always find a physician willing to treat your injuries while delaying payment. In one case, in which my client suffered traumatic brain injury, I was able to arrange treatment with a neurologist and psychiatrist who both agreed to delay payment until the case settles.

In summary, if you hire an experienced personal injury attorney such as myself, there are always options to ensure that you get the medical care that you need right away. Never feel pressured into settling early and for little money in order to pay your medical bills.

Continue reading "Some Answers if you Have Been Hurt in a Car Accident and Do Not Have Health Insurance" »

April 20, 2010

Further Charges Possible For Driver who Fled Scene of Fatal Accident

The news has been covering the story of Kevin Killoran who is now being charged with leaving the scene of an accident, death resulting; driving on a suspended license; and, driving to endanger following the tragic death of his passenger and employee, David Clinton.

The family of the victim is quite rightfully enraged that the victim was left in a car to die while the driver fled the scene and alluded police. Speculation is rife with reasons why Killoran fled the scene, but regardless of his reasoning he may face additional and much more serious charges. If medical examination shows that David Clinton could have survived his injuries if he received prompt medical attention, the State could increase the charges against Killoran (the facts of the case once fully uncovered might also give the State cause to levy additional charges). Charges including, but not limited to involuntary manslaughter could reasonably be brought forth.

Of course, the family of the victim will be able to pursue Killoran in a civil Court as well and proceed against any and all assets including his insurance policies and the Z bar & Grille which Killoran owns. A tragic and sad story that most certainly was avoidable. I wish the family the best.

April 20, 2010

Is Rhode Island Behind the Times in Imposing Social Host Liability

Yesterday I wrote a post about a Virginia Supreme Court decision imposing liability on the hosts of a sleepover following a fatal auto accident. The parents of the victim had requested that their daughter not be allowed to ride in any car with teenage boys, and the Court imposed liability on the hosts for failing to follow through with that instruction and for failing to adequately care for their guest.

I began thinking that the Rhode Island Supreme Court would almost definitely deny such a claim. Rhode Island is among the States which do not recognize social host liability. Ferreira v. Strack, 652 A.2d 965, Willis v. Omar, 954 A.2d 126. Social host liability laws hold hosts and homeowners responsible for injuries sustained by a third party as a result of their actions. For example, if a homeowner throws a party in which a person becomes severely intoxicated and later kills a person in a car accident, the homeowner would be responsible for the role they played. It is dram shop liability on the homeowner.

Rhode Island, however, fails to recognize this liability because the Supreme Court does not believe that the host owes a duty to an unrelated third party. Rhode Island will only impose social host liability if the homeowner allows underage drinkers to become intoxicated or provides alcohol to minors which later results in a tragic accident. This law is relatively recent and is a product of the legislature. The Supreme Court has often stated that it defers to the legislature in establishing new causes of action. Therefore, social host liability will never be imposed in RI unless the legislature drafts such a statute.

I realize the Virginia case does not compare factually to the long line of RI cases denying social host liability, but I can only project that the RI Supreme Court, faced with a similar case, would reject this theory of liability.

April 19, 2010

Virginia Supreme Court Sets an Interesting Precedent

Today I came across an interesting case out of Virginia. A judge has approved a $1.75 million dollar settlement in a case arising out of the death of a teenage girl who was sleeping over a friends house. The parents of the victim told the parents hosting the sleepover that they did not want their daughter to drive in any cars with boys. Unfortunately, the host mother gave permission for the girls to go for a car ride with a teenage boy that ended in the tragic death of the victim. The lawsuit sought money from the homeowner's policy of the hosts alleging that they were negligent in caring for the girl.

In approving the settlement, the Supreme Court of Virginia stated that a parent who agrees to supervise and care for a child has a common law duty to do so with reasonable care. One could make an argument that it was not unreasonable to allow the girls to get in a car with a properly licensed driver - but considering that teenagers often drive recklessly, particularly when in a group setting, an accident is arguably foreseeable. Furthermore, the parents of the victim specifically requested that the daughter not be allowed to get into such a situation.

I am unsure if any other State has similar case law (searching the case law of all 50 States isn't all that appealing) but I thought this was a novel and interesting ruling.

April 15, 2010

Jury Finds Providence Police Officer Guilty of First Degree Sexual Assault

The Providence Journal is reporting that the jury charged with deciding the fate of patrolman, Marcus Huffman, has today returned a guilty verdict in a case many of us have been following in the news. Officer Huffman was standing trial for the alleged rape of a 19 year old woman, that was committed on May 17, 2007 while he was on-duty.

The victim reported that she was offered a ride home from Huffman after she was turned away from a night club for being too intoxicated. Huffman took the victim to an empty police substation where she was raped in the bathroom. The victim, in and out of consciousness, awoke to find her clothes undone. She managed to walk to a nearby Aunt's house.

She admitted that she was so drunk that she did not remember details of the event. This, of course, made the job much more difficult for the prosecution. She was adamant, however, that she never gave Officer Huffman any indication that she was interested in him sexually. In fact, the victim identifies herself as a lesbian.

Huffman's attorney attempted to poke holes in the victim's story and highlight her inconsistencies. The jury, however, found the victim credible and today returned a guilty verdict. The defendant plans to appeal.

April 13, 2010

Uninsured Motorist Will Cover Your Damages if Injured in a Hit and Run

Many people injured in car accident, whether in another vehicle, a pedestrian, or on a bicycle, may not be aware that uninsured motorist will cover their damages if the at-fault driver flees the scene. While uninsured motorist obviously covers you if the other driver fails to maintain mandatory liability insurance, or if they fail to carry enough insurance to pay all of your damages, it will also cover you in a hit and run auto accident.

Regardless of whether the at fault driver who flees the scene is ever caught by police, your coverage under uninsured motorist will cover all of the typical damages that you can recover in an auto accident claim including: medical bills, lost wages, and pain and suffering.

It seems that Rhode Island has had a flurry of hit and run accidents in recent weeks including the terrible story of Earlene Sally and Nikia Phillips, the mother and daughter who were seriously and permanently injured by a driver who fled the scene. The driver accused of hitting the two women with his car and fleeing the scene has been charged with two counts of driving under the influence - serious injury resulting, and other counts.

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April 12, 2010

Fatal Bike Accident Underscores Need for Increased Safety

The Boston Globe is reporting today that bicycle safety groups are calling out for increased safety following the tragic death of Eric Hunt last week. Bicyclists are incredibly vulnerable on city streets and cycling advocates are calling for increased awareness and safety measures.

Tragic accidents involving bike riders happen with unfortunate frequency in Boston and Providence. The reality is that motorists are not well trained to keep a look out for bicyclists or pedestrians on the road no matter how many may be walking around the area. This accident, in particular, demonstrates a common and dangerous scenario. It appears that Mr. Hunt was attempting to pass an MBTA bus that was pulled over collecting and dropping off passengers. The bus merged back into traffic and struck Mr. Hunt causing his fatal crash. The bus driver never saw the bicyclist at the rear of his bus.

Drivers are aware of blind spots and potential hazards on the road, but are not as aware of bikers, runners, and pedestrians. Particularly in heavily congested cities, we need to share the road and be aware of one another to prevent any further fatal accidents. As a biker myself, I am increasingly aware of the danger. My condolences to the family.

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April 8, 2010

Settling Auto Accident Claims with Geico Insurance

In recent years, Geico Insurance has become one of the leading insurer's throughout the Country, including a strong foothold in Rhode Island. Their popularity has skyrocketed thanks to effective ad campaigns featuring the lovable English accented gecko and the highly civilized cavemen. Unfortunately, Geico is anything but lovable, friendly, or civilized when it comes to settling personal injury claims.

Geico Insurance has taken, a la Allstate, to making insultingly low offers without justification. Regardless of the injury sustained or the amount of damage to an automobile, Geico responds with a very low offer. I have often asked the adjuster how they arrive at such a low amount, only to hear that a computer gave them their negotiation range.

So why am I telling this to Rhode Island and Massachusetts accident victims? It is important to understand that if you are injured in an auto accident that was not your fault and the other driver is insured with Geico, you may need to file a lawsuit in order to receive fair compensation. For this reason, it is all the more important that you hire the right attorney when involved in an auto accident with a Geico insured driver.

Be sure that you speak with your attorney to discuss what amount you are looking for in settlement. If that amount is unobtainable in settlement be sure that your attorney is prepared to go to trial, if necessary. Geico Insurance is counting on the fact that most auto accident victims are unwilling to wait for a fair settlement and that most attorneys are unwilling to file suit following a car accident, motorcycle accident, or ATV accident (Geico insures all three). Therefore, most of their unreasonable offers are accepted. My office now has the majority of it's Geico cases headed to litigation.

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April 7, 2010

What to Expect in a Lawsuit Following a Personal Injury Claim

Recently I was speaking with a client who was involved in a serious car accident. Negotiations have been ongoing with the insurance company for over a month already, but I felt that their offers to settle the case were too low. I presented the offer to my client and reminded him that it is his choice whether to accept the offer, and that if he feels it is too low we can proceed to a lawsuit.

My client then asked me - how is a lawsuit going to affect me and my case? I realized that this might be a question that a lot of personal injury victims share and will be a good topic for a blog post.

In a previous post "Some Thoughts on Settlement", I offered some advice regarding the decision to accept or decline an auto accident or other personal injury settlement. Here is some additional information to consider if you choose to decline the offer.

A lawsuit is filed directly against the person, persons, or corporations that caused your injury from an auto accident, slip and fall, motorcycle accident, wrongful death, etc. His or her insurance company is not named in the lawsuit, but they will likely supply the defense attorney.

Your personal injury attorney will handle all of the additional work required with a lawsuit. Personally, the impact on you as plaintiff should be very little. You will be required to assist in discovery (answering questions and producing documentation that the defense requests) and you will likely have a deposition (a lengthy interview concerning the facts of the accident and the injuries sustained).

Beyond these obligations there should be little other impact on you personally. Of course, a lawsuit will greatly delay the amount of time before you recover the money to which you are entitled. The amount, however, is likely to be greater.

Filing a lawsuit does not always end in an actual trial. In fact, more often than not, a lawsuit will never make it to trial. Often, personal injury cases can be resolved by settlement, mediation or arbitration after a lawsuit was filed. Mediation and arbitration are similar dispute resolution processes. An impartial third party (not a judge) hears both sides and makes determinations as to a fair and equitable settlement.

If you have a strong case, then filing a lawsuit can really give you leverage in negotiations. The insurance company knows that they will have to pay a defense attorney to defend the case and that you are willing to wait for your day in Court rather than accept what little money they are offering you at the time. Of course, you need to speak with your attorney about your individual case and filing a lawsuit is not always the right thing to do.

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April 5, 2010

Massachusetts Might Set Precedent in Criminalizing Bullying

Rhode Islanders and our local news stations have been focused, appropriately, on the flooding that has ravaged our State in the past weeks. Another interesting story, which many of you may have missed, is developing in Massachusetts.

The Massachusetts District Attorney is charging 9 teenagers
with various charges relating to the bullying and subsequent suicide of 15 year old Phoebe Prince. The South Hadley teenager was apparently the subject of months of continuous bullying before committing suicide in January. Her mother twice notified the school of the seriousness of the problem and the impact that it was having on her daughter. Unfortunately, nothing was done and Phoebe Prince ended her life.

Phoebe Prince came to Boston from Ireland. Her tormentors apparently sought her out after Prince, a freshman, had a brief fling with a Senior football player. It appears some of the girls in the high school wanted to show Phoebe "her place" and that she didn't belong.

Bullying is an epidemic in our schools today that often continues after class is dismissed in online forums and social network groups. At its worst, it can result in the tragic death of a teenage girl who found suicide the only way to relieve her torment.

Ms. Prince's death might set a precedent that has implications in Massachusetts and beyond. Bullying as we generally understand it, is not a crime. In fact, many might suggest it is a high school right of passage. From my recollection, bullying is a means by which insecure high school students pass their insecurities onto even more insecure high school students. Ms. Prince, however, was subject to far worse than the occasional taunt. She endured constant and repeated abuse, physical threats, attacks and worse. One of the teens arrested went so far as to write "accomplished" on Phoebe's facebook wall when notified of her suicide.

The Massachusetts district attorney believes that the tormentors crossed a line and the AG office is using the law in a highly creative way to find charges to press against all of the girls tormentors. The nature of the charges range from criminal harassment and civil right violations to stalking and statutory rape. One girl, who previously knocked a red bull can out of Phoebe's hand, is being charged with assault with a deadly weapon.

This type of creative prosecution is what is occurring with most of these charges. Defense lawyers will be hollering from the rooftops that the charges are unreasonable and the DA will likely be applauded for bringing someone to justice for the death of Phoebe Prince.

Criminalizing bullying may set a very important precedent not only in Massachusetts but in every State in the Country. It will be fascinating to see how this case pans out.

Beyond the legal issues that I have chosen to discuss in this post, I give my heartfelt condolences to all of Ms. Prince's family and friends.