Rhode Island Injury Lawyer Blog

This is an unfortunate story that seems unable to run out of steam. A nationwide outbreak of meningitis is being linked to a specialty pharmacy company here in Massachusetts. Every day the Center for Disease Control has increased the number of victims who have caught a deadly strain of meningitis after receiving a tainted steroid shot intended to relieve back pain. The current number stands at 119 cases of meningitis with 11 documented deaths related to the tainted steroid injections. The cases of reported illnesses has spread to ten States.

The company voluntarily recalled the steroid that was sent to clinics in 23 States after a tainted vial was found on their own premises. They have since expanded the recall to include everything they have distributed.

While there are no confirmed cases of meningitis here in Rhode Island, the Department of Health continues to notify potential victims of the possible exposure. An additional 50 patients have been notified of the link today. Victims who have contracted meningitis from the tainted injections will have a strong product liability case against the manufacturer who clearly released an unsafe and defective product into the market.

Meningitis is an inflammation of the protective membranes covering the brain and spinal cord. It is an extremely serious and potentially fatal disease because of the bacteria’s proximity to the brain and spinal column. The most common symptoms of meningitis include headaches, neck stiffness, photophobia (aversion to bright light), fever and confusion. Antibiotics and antiviral drugs are used to treat meningitis once discovered by lumbar puncture.

UPDATE – October 30, 2012

Yesterday, the first confirmed case of meningitis has extended into Rhode Island. The total number of people sickened by the tainted injections is now over 300 with 25 associated deaths. This is a sad story that continues to develop each day.

If you or anyone that you know contracted meningitis after receiving the tainted steroid injections, should contact our office right away. Our experience in product liability and medical malpractice cases will help ensure that you obtain everything to which you are entitled.

My office has represented many injury victims who were struck by a car while crossing a street, or simply walking along the road. These injuries are almost always traumatic and frequently result in broken bones, head injuries, scars, etc. Providence has seen a recent surge in pedestrian accidents over the past couple of months including two pedestrians struck this weekend alone. Most recently, Stephen Petrick, 19 of Providence, was struck and hit by a vehicle while crossing a crosswalk near Providence College.

Pedestrian accidents can occur for a variety of reasons. Distracted driving may be one of the leading causes of the increase in pedestrian accident frequency. Distracted driving, most typically while using a smartphone to text, read emails, check Facebook or Twitter, is possibly the greatest danger on the road right now, more dangerous even than drunk driving. Drivers who use their smartphone while driving their vehicle are completely distracted for an average of 5 seconds at a time. That is sufficient time for a vehicle to travel several hundred feet.

If you or a loved one is struck by a vehicle while walking or crossing a street, it is absolutely imperative that you speak to an experienced personal injury attorney right away. Even though, pedestrians have little control over these types of accidents, insurance companies will look at every possible reason to find you at fault. If you have been injured in this type of accident, you will be entitled to medical bills, lost wages, and pain and suffering.

My office is ready to assist you! We will come to your home or hospital and get your case started within minutes of meeting with us. There is no fee unless we are successful in obtaining money for you.

The story that Progressive Insurance defended the person “responsible” (I put this in quotes and will explain the legality further on) for the death of a policyholder is completely taking over Twitter and the news circuits following a series of blog posts, tweets, and other correspondence between Progressive Insurance and the family of the deceased, Kaitlynn Fisher, nicknamed Katie.

I have tried to learn as much about this story as possible but there are some conflicting reports. I apologize to those intimately involved with this case, in advance, for any errors or misunderstandings.

The Facts of the case

Katie Fisher, a 24 year old John Hopkins graduate, was killed in an automobile accident on June 19, 2010. The accident occurred at an intersection and an independent witness seemed to indicate that the OTHER driver ran the red light and struck Katie, thereby causing her death. That driver seems to have been insured by Nationwide. Nationwide did defend the case as they are contractually obligated to do, but quickly paid out the entire limits of their auto policy (that amount has not been disclosed). Katie, however, also maintained an UNDERINSURED auto policy. This means that if the other driver does not have enough coverage to pay for your damages (and in the case of a tragic death – no amount is enough) then your own insurance company, in this case Progressive, should cover the difference. Katie was entitled to $100,000 under this policy.

Maryland, however, has very strict “contributory negligence” statutes which hold that if you are even 1% at fault for the accident, then you are barred from recovery. Luckily, here in Rhode Island and Massachusetts, where I practice, we do not have such a strict and incomprehensible law (at least, in my humble opinion.) This law is where the trouble for Progressive began!

Progressive, like all insurance companies, does not want to pay back the money they take from policyholders. Therefore, if they could prove that Katie was even 1% at fault for this accident, then they would not have to pay her estate any of the $100k policy. So, even though the facts seemed to suggest that Katie was not at fault for this accident, and even though, Nationwide already paid the full amount of their policy limits, it was not PROVEN that the other driver was at fault for this accident and Progressive refused to volunteer payment to their policyholders estate. Instead, the estate had to file a lawsuit. And this is where the trouble for Progressive Insurance gets worse!

The attorneys for Progressive Insurance (who are most likely employees of the Company which clearly creates a conflict of interest that no one seems to acknowledge or care about) went about the case as if Katie, their insured was at fault. They called witnesses who placed negligence on Katie and gave statements to the jury arguing that Katie was at fault. This means that Katies OWN INSURANCE company was at her trial, which as a result of her tragic passing she was unable to speak for herself, trying to prove her guilt.

The jury didn’t buy it and awarded the family estate over $700,000.

And this is where the proverbial **** really hit the fan!

Katie’s brother, Matthew Fisher, took to his personal blog to discuss the case and what his family had been through with Progressive. The story went viral on twitter and is absolutely everywhere now. Progressive initially only made a canned response to all of the Facebook postings and re-tweets that the story presented, but made a formal explanation soon thereafter. They explained that they were within Maryland law to act as they did and that they did not “defend” their policy holders killer, because that person was defended by his insurance company, Nationwide. Matthew Fisher responded with another post describing the way Progressive tried to prove her negligence at trial and RIGHTFULLY stated that this was, in fact, a defense.

It was already too late for Progressive – the public relations nightmare is already at full tilt!

My Take

This story is not unusual. It is only unusual that it is receiving so much attention. The reason every person injured in an accident needs an experienced personal injury attorney, is because insurance companies are only out to protect their own interests. Progressive (at least in Rhode Island) is not one of the worse insurance companies out there, and I almost wish this was an Allstate case because it is perfectly fitting to the way they do business. Nevertheless, insurance companies are corporations first and foremost with an eye on the bottom line – never mistakenly believe, no matter how cute their spokesperson or mascot, that they care about you.

I believe that there is ample evidence here to support a conflict of interest on the part of Progressive Insurance. In Maryland, as in every State, an insurance company is legally obligated to act in good faith. It will be really interesting to see how this story plays out if the family pursues an action against Progressive Insurance directly. If Progressive did not act in good faith, they may be sanctioned by the State, required to pay huge fines, and may end up owing the family much more than the $100k the policy required them to pay. I think it was bad faith, I think it was a terrible business decision, and I wish the family the best of luck in their pursuits.

Approximately four million Bumbo Baby Seats have been recalled from the manufacturer due to increasing safety concerns. This story from Boston.com was sent to me by a friend and I took notice because both of my children have used and enjoyed the Bumbo seats. My wife and I have always been very careful with the Bumbo seats because there is no seat belt or other restraint to protect our kids and we were aware of the chance of injury. After reading this report, I am not surprised to find that dozens of cases have been reported of children suffering skull fractures and other very serious injuries after falling out of or escaping from Bumbo Baby Seats.

Bumbo Baby Seats were recalled once before several years ago when increased warning labels were placed on the units. While the unit has long since warned parents not to leave children unattended, the new warnings advised parents to never use the Bumbo Baby Seat on a raised surface, such as a kitchen counter, for fear that the child could fall a great distance. Unfortunately, even with the increased warnings, at least 50 known cases have been reported of children suffering very serious injury after falling from a raised surface. Following this new recall, the company that makes the Bumbo Baby Seat is voluntarily providing a free repair kit that includes a safety belt restraint.

If your child was injured while using a Bumbo Baby Seat, you may be entitled to compensation for medical bills, both current and future, and any pain and suffering that your child has experienced or will experience in the future. The reported skull fractures are obviously a very serious injury and can also result in long term permanent brain damage. The compensation may be made by filing a product liability lawsuit against the manufacturer of the Bumbo Baby Seat, and potentially the many retailers selling the product.

If you can prove that a product is defective, then you may be able to place liability on the manufacturer entitling you to compensation. There are three common methods of attempting to demonstrate that a product is defective:

  • Defective product design;
  • Defective product manufacturing;
  • Inadequate or insufficient warning.

From the outset, it looks like a viable case can be made against the manufacturers of the Bumbo Baby Seat under categories one and three above.

Defective Product Design

A product is defectively designed if it is dangerous even when assembled and used correctly. In this case, the fact that children can fall or “roll” out of the chair and injure themselves may be enough to establish negligent design. Furthermore, the fact that seat belts could easily be added to the Bumbo Baby Seat, increasing the safety of the chair, raises the question as to why seat belts were not included from the very beginning. Perhaps, some of these horrible injuries could have been prevented.

Ineffective or Inadequate Warning

The Bumbo Baby Seat was already recalled once for inadequate warnings about using the Baby chair on raised surfaces, but the warnings apparently did not get through to consumers. If it was not clearly explained that children can roll out of the Bumbo Baby Seat causing a fall, then the manufacturer may be liable. If the risk of injury was not clearly expressed, then the manufacturer may be liable.

If your child has been injured while using a Bumbo Baby Seat, contact my office right away for a free consultation. We are experienced product liability attorneys and will begin working on your case right away. A great deal of investigation and discovery will be required to prove that the manufacturer sold a defective product so it is imperative that you contact a personal injury attorney right away. There is never any fee unless we are successful in obtaining compensation for you and your child.

I have previously written posts about the extreme danger of head-on auto accidents and the increased likelihood of serious injury and death. Today, I came across an article discussing a report from the Institute for Highway Safety which highlights the fact that partial overlap front end crashes may be the most dangerous of all collisions. These accidents which may occur on indirect frontal crashes or accidents with a pole or tree, greatly compromise the integrity of the vehicles body and can result in extremely serious personal injury.

Despite great advances in highway safety from the automobile industry, over 10,000 people per year are killed as a result of a car crash. A quarter of such fatalities may come from these so-called partial overlap accidents. Manufacturers score highly for direct frontal collisions, but according to this most recent study, only 3 out of 11 mid and high end vehicles (foreign and domestic) scored “good” or “acceptable” on the partial overlap collision test. The video included in the report is frightening.

The institute points out that on direct front end accidents, the force of the impact is spread across the entire front end of the vehicle allowing it to compress and protect the interior passengers. On a partial overlap accident, the entire force of the impact is isolated in a much smaller area and cars are simply not designed to absorb such dramatic force. The passengers inside experience the most serious of injuries: broken bones, scars, head injuries, paralysis and even death.

A serious auto accident requires a serious law firm. If you have been seriously injured in a front end collision you must retain an attorney who nows how to fight for you and win every dollar available for your case. You do not need an attorney looking to make a quick settlement. If you were involved in an auto accident resulting in a serious or catastrophic injury, contact this office right away for a free consultation.

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Missouri was one of many States that impose caps on noneconomic damages (i.e. pain and suffering) in personal injury cases, specifically medical malpractice. In Missouri, an injured person could receive no more than $350,000 above his or her economic losses (medical expenses and lost wages). While that may seem like a great deal of money, it is very little to someone catastrophically injured by another’s negligence. For a simple example, consider a medical malpractice case where the doctor amputates the wrong leg (think it can’t happen – look here). That person will spend the rest of his or her life in a wheelchair and would legally be unable to recover more than $350,000 in damages!

Yesterday, the Missouri Supreme Court in Watts v. Cox Medical Center, ruled that the cap on damages was an unconstitutional infringement of ones right to a trial by jury. The Federal Constitution (mirrored by the States) guarantees the right of anyone with cause to have a trial decided by a jury of his peers. It should always be the jury who decides the outcome of a case including the damages, and not lawmakers influenced by insurance companies.

It has long been an argument of the plaintiff’s bar and American Association for Justice that caps on tort awards were unconstitutional, and this Supreme Court decision affirms our position. Hopefully, this decision will influence other States to make the same decision which they should agree is constitutionally mandated. This decision should also strike a blow for the tort reform movement (although this election campaign has not brought up the topic of tort reform nearly as much as four years ago). Numerous studies, including those conducted by independent groups with no stake in the tort reform debate, have shown that medical caps and restrictions on personal injury claims do not reduce health care costs and lead to lower quality patient care.

I want to personally applaud the attorneys behind this decision for their tireless work and to the Missouri Supreme Court for amending a wrong.

On July 22, Cargill voluntarily recalled 30,000 pounds of ground beef products. Now the CDC is reporting that at least 33 people have been sickened with salmonella linked to the Cargill ground beef. At least one of these persons is reported to be here in Rhode Island and several more in Massachusetts. It appears that these products were sold in Hannaford supermarkets throughout New England. It is highly likely that additional cases will be reported increasing this number well above 33 cases of food poisoning. The product has been recalled and the sell by date has passed so there should be no danger of buying the affected product any longer. Consumers, however, are instructed to look at products they placed in the freezer. If the establishment number Est. 9400 is in the USDA mark of inspection, you may want to dispose of the meat for possible contamination.

These victims of food poisoning range in age, remarkably, from 6 to 101! Food poisoning is particular hard on children and the elderly who have weaker immune systems. Of the 33 victims already reported, 11 have required some period of hospitalization. Thankfully no deaths have linked to this recent salmonella outbreak.

Food poisoning cases are largely product liability cases and require thorough and aggressive investigation. It is imperative that you speak with an experienced food poisoning attorney right away if you or a family member has been diagnosed with salmonella or other food borne illness. Attorney Joseph Lamy has recently handled many cases of food poisoning from high profile Rhode Island cases including the DeFusco’s Bakery outbreak and a half dozen victims of the Uncle Sushi outbreak.

MSN.com has reported, using statistics gathered from the NHTSA, that traffic related accident deaths have surged during the first quarter of 2012. They estimate that 7,360 motor vehicle fatalities occurred between January and March of this year compared to 6,720 deaths during the same period last year. The huge increase marks the second largest quarterly jump in over 30 years!!

Vehicles continue to make improvements in safety, including advanced and multiple airbags, so experts are hard to explain what is causing the increase in auto accident related deaths. The number one suspect is increased cell phone use. Text messaging and driver distraction has been an ever increasing problem across the country leading a number of States to ban texting while driving. Of course, texting is not limited to actual texting but includes Facebook checking, tweeting, reading emails, and everything else that smartphones can do. Recent studies have shown that distraction from cell phone use is even more dangerous than drunk driving.

The good news, if any exists, is that motor vehicle related deaths are down annually from a peak in 2005. The two most common mistakes that lead to motor vehicle fatalities are veering left of center (over the double yellow line) causing a head on collision, and driving off the road.

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The Institute for Highway Safety has recently revealed the most dangerous vehicles on the road. The 7 cars identified in this report received poor marks in crash testing and are likely to cause personal injury and serious bodily injury in an automobile accident. The institute for highway safety uses four primary tests for assessing a cars crash ratings:

  • A 40 mph offset crash in which the vehicle strikes a stationary object;
  • A side impact test in which a heavy SUV-type vehicle T-bones the test car;
  • Rollover testing in which the car intentionally strikes a metal strip to see how much force is required before the car flips; and
  • A rear-end impact in which the head restraints and seat belts are tested to identify the ability to reduce or eliminate whiplash.

The cars on this list that were the lowest scoring generally received poor marks in two of the four above categories. The seven vehicles identified in this test were:

  • Suzuki SX4 which received poor marks for rear end impacts and vehicle rollovers;
  • Jeep Wrangler which received poor marks for side impacts and rollovers;
  • Nissan Pathfinder which received poor marks for rollovers and rear end impacts;
  • Mazda CX-9 which also received poor scores for rollovers and rear end impacts;
  • Mazda CX-7 (see above);
  • Chevrolet Colorado Crew Cab which scored poorly for side impacts, rear end impacts and rollovers;
  • Dodge Ram 1500 which received poor scores in side impacts and rollovers.

Trucks and SUVs have a notorious history of vehicle rollovers in single vehicle and other serious auto accidents. A vehicle rollover is one of the most serious car accidents that can occur often resulting in catastrophic injury or death. For this reason, cars that perform poorly on the rollover test are never going to be recommended by the Institute for Highway Safety.

In addition to the increased likelihood and severity of injury, cars that score poorly on these types of tests might also cost you in increased insurance premiums. Poor design and engineering of SUVs or other vehicles likely to rollover might also justify a product liability claim. If you were involved in a rollover accident, either as a driver or passenger, it is worth speaking to an experienced personal injury attorney right away.

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I have written a few previous posts discussing the importance of uninsured motorist coverage on your auto insurance policy if you are involved in a serious auto accident, but no posts focused solely on underinsured motorist coverage. Uninsured motorist coverage will also serve as UNDERinsured motorist coverage if you are involved in a car crash with someone who has too little insurance. In Rhode Island the minimum liability coverage is only $25,000 and in Massachusetts it is even less at $20,000. If you have been seriously injured in a car accident or a motorcycle accident, your medical bills alone might easily exceed these small amounts of money.

Depending on the coverage you have on your policy, and the amount thereof, you may be able to use your uninsured motorist coverage to help pay for the damages over and above the amount of coverage that the at-fault driver maintained. Your insurance company will essentially “take the place of” the at-fault driver’s insurance company. There is a major difference between Rhode Island and Massachusetts when it comes to underinsurance law.

Underinsurance in Rhode Island

Rhode Island has more favorable laws than Massachusetts if you have been seriously injured in a car accident and need to utilize your underinsurance coverage. If the at-fault driver’s insurance company has paid it’s policy limits, whether that amount is the minimum $25,000 or $300,000, but it is less than the full value of your claim, then you can turn to your own policy. Your insurance company will be able to “write-off” the amount that you already received from the other company but you are still entitled to the full value of your uninsured motorist policy no matter how large or small. For example, if your full value is approximately $100,000 and the at-fault driver has a $50,000 policy, then you have roughly $50,000 that you are still owed. If your uninsured motorist policy is equal to $50k or more then you are likely to be fully compensated. If your policy is for the state minimum of $25k, then you are entitled to the full amount but you will still not be fully compensated for your loss.

Underinsured motorist coverage in Massachusetts

The concept and workings of uninsured motorist in Massachusetts is largely the same as described in the Rhode Island section above with one major exception. In Massachusetts, you can not “stack” your insurance policy on top of the at-fault driver’s insurance policy. Your coverage amount must be in excess of the at-fault driver’s policy or you will not be able to access any money from your own insurance. For example: Your injury is worth $50,000 and both the at-fault driver and your own policy is for the Massachusetts minimum of $20,000. In this scenario you are not entitled to ANY of your underinsured motorist because your policy is not in excess of the at-fault driver’s. This is why Rhode Island law is much more advantageous because in this scenario you would be entitled to $40,000 in Rhode Island but only $20,000 in Massachusetts.

Some Other Points

arbitration v. court

If you begin the process of trying to settle your serious injury claim with your own insurance company, you are bound to your insurance contract. This means that you must cooperate with the insurance company in ways that you did not have to with the at-fault driver’s insurance company. Another major difference is that many insurance companies have written arbitration provisions into their insurance policies. This means that all disputes, including underinsured motorist claims, must be dealt with by arbitration rather than litigation. This can be either a blessing or a curse, but arbitration is for another blog post.

other household members

Your car accident attorney should also review all of the household members at your residence because their auto insurance policies, if different than yours, might cover you for underinsurance.

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