Rhode Island Injury Lawyer Blog

Although similar attempts have been made in the past, the Rhode Island legislature is once again considering a bill to toughen state seatbelt laws. It goes without saying that seatbelts can save lives and reduce the severity of injuries in serious auto accidents, yet thousands still fail to buckle up every time they get in their car.

Under the current laws, the police can issue a citation for failure to wear a seatbelt, but only if they stopped you for another moving violation. In other words, the police can not pull over an adult driver (the laws are different for drivers under 18) if the only law he or she is breaking is failure to wear a seatbelt.

Under the new proposal, police would be allowed to make a traffic stop solely for seat belt use and issue a $75 citation if caught operating without a seatbelt. Thirty States already have similar laws, but previous attempts to pass such a law in Rhode Island have failed. This time around, however, there is $4 million dollars in federal money available if the State should pass such a law.

What I like about this newly proposed law is that it prevents the police from conducting a search of the vehicle unless a violation other than the seatbelt was also committed. In other words, police will not be able to use lack of a seat belt to conduct random unwarranted searches of vehicles and persons, unless additional probable cause exists.

I do not often hear inquiries about traumatically induced cataracts, but I recently had a conversation with a fellow attorney who was speaking of a case he settled with traumatically induced cataracts. I thought that it was an interesting topic to write about and an injury that many might be unfamiliar with.

Traumatic cataracts can occur when the eye lens is damaged by blunt trauma or penetrating eye injury. Such an injury can occur in a car accident from the impact of the airbag or windshield and is particularly a danger for those who wear glasses. The glasses, or contact lens, can pierce the eye lens capsule which may eventually result in cataracts. Because of the severity of impact required for this type of injury, it will generally occur in very serious car accidents with significant injuries such as head trauma or facial lacerations.

Cataracts are a very serious disability that severely limits vision and often require surgery. If you have suffered this unique injury following a serious car accident, contact our office to discuss your status and a potential claim for damages.

The cost of an attorney can be prohibitive for young musicians or bands starting out. I understand that in the early stages a band is so excited for an opportunity that they will sign whatever contract comes to them in hopes of making it big. I have also heard a lot of artists say that “the contract seems pretty straightforward.” I ensure you that in the music industry nothing is “pretty straightforward”. If it were not drafted in lengthy “lawyer speak” it would not take a 12 page contract to license one song from a band. Do not make the mistake of assuming that you understand every provision in the contract.

As an attorney who has reviewed hundred of recording, publishing, licensing, and management contracts, I must tell you that you absolutely must have an experienced entertainment lawyer review the contract. If you take your music and your band seriously, you can not afford to blindly enter into contracts that you do not understand. I have seen contracts that tie up the artist for several years without a chance to exit. I have seen contracts that grant the record company or manager power of attorney. I have also seen contracts that wrongfully take all the rights to music created and recorded by you. Furthermore, many of these contracts offer nothing in return. There is often no financial advance, no intellectual support, and no promise to promote the band or your music.

I can review most contracts and provide a detailed opinion letter as to its strengths and weaknesses for much less than you might expect. I will make it absolutely clear if it is a contract you need to avoid. In most cases, I will have the response to you within a week. It is an incredibly small price to pay for a service that may save your bands career and save you hundreds of thousands of dollars if the song becomes a hit.

Furthermore, I can review contracts for artists around the Country. While I am admitted to practice in Rhode Island and Massachusetts, the language of music contracts is often universal and I can review a contract offered to an artist anywhere.

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If you are pulled over for suspicion of driving under the influence, you may be aware that you are allowed to refuse to take a breathalyzer test. If you refuse to take a breathalyzer test, you will be charged with refusal to submit to a breathalyzer test and will be subject to additional penalties, including a six month license suspension. The benefit of a refusal to submit is that the police will not be able to introduce chemical evidence of your intoxication.

Many people, however, fail to realize that even the field sobriety test is voluntary. You are under no obligation to submit to a field sobriety test when asked by the police. If you refuse, the police will be forced to make a decision whether to arrest you based on what little evidence that they have observed (i.e. slurred speech, bloodshot eyes, etc.)

Most people will submit to a field sobriety test because a) they think that they have to; or b) they feel that they can pass the test. As to part “A”, I have already informed you that you do not have to submit to the test. As for part “B” – DO NOT ASSUME THAT YOU CAN PASS THE TEST!! Even someone who is completely sober or had a single drink can fail a field sobriety test because it is difficult. I know that if I were asked, even without drinking, that I would have a terribly tough time standing on one leg for thirty seconds without wobbling. In addition, the police officer will be making you nervous and this will make it more likely for you to make a mistake.

Furthermore, the field sobriety test is entirely subjective. There is no scientific basis for this test. Instead, police officers are given a number of signals to look for to identify a drunk individual. However, there is no magic number to the amount of mistakes that you can make and still pass the test. If you still do not believe me, ask a police officer friend of yours how many people suspected of drunk driving actually pass the field sobriety test.

Based on the way you were driving your vehicle, or based on your speech patterns and conduct, the police officer may still decide to arrest you if he feels that he has probable cause. However, by giving the police little additional evidence to support the arrest, you will put yourself, and your criminal defense attorney in a better position to win at trial.

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Dog bites are very common in the United States. On average, over four million people are bitten by dogs each year. Nearly a million of those people suffered injury severe enough to require medical attention. Most concerning, however, is that roughy 80% of dog bite victims are children under 10. In fact, dog bites are one of the most common causes for visits to the emergency room by children.

There are a number of reasons why a child is more prone to attack from a dog. Children are at the animals eye level and are seen by the dog as less of a threat than an adult. Also, children, unaware of the danger, are more likely to taunt or tease animals which results in an attack.

A dog bite can have serious and permanent consequences. As dogs are prone to attack the face, it is quite common for a child to suffer facial scarring and/or injury to the eyes. In fact, one study indicated that when very young children (under 4) are attacked by dogs, injury to the eyes occurs in about 15% of cases.

It is imperative to exercise caution when your child is around dogs. It does not matter if it is a strange or familiar dog as statistics suggest that children are most often attacked by the family pet. The laws in Rhode Island and Massachusetts are strongly in favor of the dog attack victim and the owner of the pet may be responsible if your child is attacked. Like other personal injury claims, the victim of a dog attack is entitled to:

  • Past and future medical expenses;
  • Lost wages or loss of earning capactity;
  • Money for scarring or permanent disfigurement;
  • Pain and suffering.

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Despite ample evidence (here, here and here) that medical malpractice lawsuits are not the cause for soaring health care costs and poor patient care, Massachusetts Governor Deval Patrick is proposing a bill intended to reduce medical malpractice lawsuits. The Governor, taking a page from steps taken in other States, is proposing a bill to amend medical malpractice law in Massachusetts. Under the proposal:

…doctors in Massachusetts would be able to apologize to patients — without the risk that their apology could be used against them later, in court. The state would also implement a six-month “cooling off period,” so that hospitals and patients could try to resolve problems without lawsuits.

President Obama, as part of his healthcare reform and recently discussed at the State of the Union Address, is also suggesting potential reforms. One such suggestion is the creation of a Health Court which will remove the jury from the process (despite the Constitution guaranteeing the right to a trial by jury) in favor of a single Judge. The intent is to streamline medical malpractice awards because juries often have a wide range in the amount of money that they award.

It has been said on numerous occasions… malpractice reform will only result in lesser quality care for patients, reduced ability to exercise Constitutional rights in open Court and WILL NOT reduce health insurance costs. A number of independents studies continue to show that eliminating medical malpractice lawsuits all together would save approximately 1% of the total cost of healthcare. One Percent!!

A criminal defendant has the Constitutional Right to confront his accusers in open court. This is referred to as the Confrontation Clause in the United States Constitution. The purpose of the clause, for one, is to prevent false accusations by requiring that the complaining witness appear in Court and testify against the accused. It also allows the defense an opportunity to show or demonstrate that the complaining witness is lying (if he is lying), or not credible.

The United States Supreme Court ruled today on Michigan v. Bryant, and may have complicated the Confrontation Clause. In this case a shot and dying man told police at the scene that he was shot by Richard Bryant. The victim died from his wounds before trial. The police testified as to what they were told, namely that the victim identified Richard Bryant as the shooter. Bryant was convicted at the trial, but the Michigan Supreme Court overturned the conviction stating that the judgment ran afoul of the Confrontation Clause. Today, the Supreme Court, in a 6-2 ruling, held that the conviction was valid and hearsay evidence (the testimony of the police) can be used when a victim of violent crime is unable to testify. The admission of the testimony has to do with the purpose of the statement. Justice Sotomayor, writing for the majority, said:

…the state court had made a mistake in considering Mr. Covington’s statements to be “testimonial” and hence subject to the Confrontation Clause. Testimonial statements, she explained, are ones solemnly made to establish facts about past events.

The primary purpose of Mr. Covington’s statement was something else, Justice Sotomayor wrote. It was to aid the police in addressing an “ongoing emergency,” given that the person who shot Mr. Covington had a gun and was on the loose.

The testimony may have been allowed based on the “dying declaration” hearsay exception. A dying declaration will allow testimony that is otherwise hearsay, if:

  1. The declarant is unavailable;
  2. The declarant’s statement is being offered in a criminal prosecution for murder, or in a civil action;
  3. The declarant’s statement was made while under the belief that his death was imminent; and
  4. The declarant’s statement must relate to the cause or circumstances of what he believed to be his impending death.

However, the prosecution never raised this issue, nor did the supreme Court in today’s decision. So now the interplay between a dying declaration and the Confrontation Clause, are completely in turmoil.

Justice Scalia wrote a scathing dissent of the decision, and while I never believed that I would agree with Justice Scalia on anything, I believe he is correct here. There already exists an exception for such evidence to come into evidence. If the testimony is not properly entered, we should not be creating further exceptions and loopholes for the admission of tainted evidence. In the end, a conviction based on no more than the words of a police officer allegedly recanting the words of a dying man, who may or may not have been delirious from pain or loss of blood, is troubling.

Rhode Island enacted the Racial Profiling Prevention Act in 2004 (under R.I.G.L. 31-21.1) in response to similar statutes passed in most States. The unfortunate reality is that racial profiling exists and happens everyday, everywhere. The racial disparity in the number of traffic stops, arrests, convictions, and length of sentence between whites and all other races can not be ignored. Some statistics from Amnesty International are hard to be ignored:

Racial profiling is a proven failure in the ‘War on Drugs.’ Statistics show that using racial profiling to interdict highway-bound drug couriers is not just wrong, but ineffective. A survey by the Department of Justice in 1999 reveled that while officers disproportionately focused on African American and Latino drivers, they found drugs more often when they searched whites (17%) than when they searched African Americans (8%). A similar survey in New Jersey found that although people of color were searched more frequently, state troopers found drugs in vehicles driven by whites 25% of the time, by African Americans 13%, and by Latinos 5%. According to a study of the US Customs Service’s practice by Lamberth Consulting, when Customs agents stopped using racial profiling to target potential smugglers and began focusing on race-neutral factors such as behavior, they increased the rate of productive searches by more than 300%.

The Rhode Island General Assembly admitted that racial profiling existed in R.I.G.L. 31-21-2.2 (c) “In many communities nonwhite drivers in Rhode Island, subjected to discretionary searches, are twice as likely as whites to be searched.” They also admit that racial profiling causes fear, anxiety, humiliation, and resentment among people unjustifiably treated as criminal suspects and can result in a loss of confidence and public trust in the police and criminal justice system.

The new proposed laws look to take an even tougher stance to combat racial profiling. Some of the suggested components include:

  • requiring officers to document in writing their probable cause for conducting a search during a traffic stop
  • bar police from requesting documentation other than license and registration without reasonable suspicion of criminal activity
  • bar officers for asking passengers for identification without probable cause
  • restrict searches on juveniles

While probable cause for search and seizure always plays a role in a criminal defense case, those who feel they have been subjected to racial profiling are also allowed to sue for damages in civil court.

This week a new client came into my office following a very serious car accident. He suffered significant injuries and was rushed to Rhode Island Hospital. The accident happened over a week ago and he told me that he thought he had to wait for the police report before contacting an attorney. For my client, the delay did not effect the case, but it occurred to me that other people may also be under the belief that they need to wait for the police report.

This is absolutely untrue. In fact, in order to ensure that things go smoothly and that you receive fair compensation, it is best for your personal injury attorney to get started right away on your case. For my clients, I begin working cases immediately after the consultation. In addition, my office handles the property damage claim and we can get started on that right away so that you are not without your car for longer than necessary.
Your lawyer will obtain the police report when it becomes available. Depending on where in Rhode Island your accident occurred, the police report can take anywhere from 2-7 days to become available. It is not worth waiting this much time before calling your attorney. After all, police reports are helpful to identify insurance information and confirm the facts of loss, but they rarely make a major difference in a personal injury case.

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A herniated disc is one of the more common serious injuries to occur following an auto accident. It is a potentially life changing injury that may require high risk spinal surgery. It is a more serious injury than ordinary whiplash and must be treated as such by your attorney.

What is a Disc Herniation?

Each of us has a small gel like cushion (the disc) between each vertebrae in our spinal column. This disc is what allows us to bend, twist, and turn our spine without pain. In a serious auto accident, the shock to the spine can cause this disc to rupture. This causes a great deal of pain for two reasons. First, you no longer have the necessary cushion to protect the vertebrae from “rubbing” against each other. Second, the herniated disc can move inside the spinal column and rub against spinal nerves causing a great deal of pain not only to the back, but radiating into the arms and legs. If your pain extends away from your back and into your limbs, your doctor will likely order an MRI to confirm the existence of a herniated disc.

The Insurance Company Will Almost Always Deny These Claims

If you have suffered a bulging disc (a disc injury that has not completely ruptured) or a herniated disc, you need to have an experienced personal injury attorney who understands how insurance companies think and who is willing to file a lawsuit to ensure you receive fair compensation. This is because insurance companies frequently deny that a herniated disc is related to an auto accident. Here’s why…

The vertebral discs, like every other part of our body, tends to break down as we age. People as young as 30 can already show signs of disc deterioration and a high percentage of the population already have bulging discs. Men and women who are athletic or work in physical occupations are very likely to show some evidence of disc damage even before an auto accident. For this reason, insurance companies will always argue that the disc injury was pre-existing and unrelated to the auto accident.

Don’t Let the Insurance Companies Ignore Your Disc Herniation

Most auto accidents result in damage to the soft tissue of the neck and back, a so-called whiplash injury. A disc herniation is not the same as whiplash and your settlement amount should not be the same as a whiplash victim, either. As a former insurance adjuster, I know how the insurance companies approach spinal injury claims, and I will use that knowledge to obtain the best possible result for you.

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