Medical Device Legislation

As some of you know, the U.S. Supreme Court recently made it all but impossible to pursue claims against the makers of medical devices. The decision has slammed shut the courthouse doors and allowed the manufacturers to continue making harmful devices without any worry about taking responsibility for the dangerous products they make.

There is pending federal legislation to help individuals who have been injured by medical devices. This proposed legislation is known as the Medical Device Safety Act of 2009 (“MDSA”) and it was introduced over a year ago. As of the date of this newsletter, neither the House of Representatives version, nor the Senate version of the MDSA has been passed. Without approval of the MDSA, it will be very difficult to defeat any corporation making harmful devices including Medtronics. Please, please contact your Congressman and both U.S. senators and ask them to support the Medical Safety Act of 2009. If ordinary people do not make the contact, this legislation will die along with the people using the defective devices.

Visit www.senate.gov or www.writerep.house.gov to contact your senators and congressmen.

Boating Accidents Increase Every Year

Many boating accidents were the result of alcohol use, and most of all boating fatalities could have been prevented by wearing personal flotation devices.

Remember, drinking while boating is just as dangerous as drinking while driving an automobile. If you do either, you'd be better off in the long run to donate your boat or donate a car to charity rather than becoming another boating accident or automobile accident statistic.

4th of July

Every year, we celebrate the declaration of our independence with great fanfare. We burst fireworks, and host barbecues. Unfortunately, the Fourth of July is also the single deadliest day of the year, with the maximum number of accidents occurring on this day. Between 1986 and 2002, an average of 161 people died in automobile accidents on Fourth of July.

You can’t avoid the traveling that goes hand in hand with the holiday, but you can take steps to make sure you're safe on the roads. It’s best to drive keeping in mind that it is the biggest holiday of the year, and there are likely to be hundreds of motorists around you driving under the influence of alcohol. Stay within speed limits, avoid driving while drunk, and wear your seat belts.

Motorcycle Accidents - Law

Motorcycle Accidents usually occur because of negligence and frequently involve personal injury law but can sometimes involve products liability law. Liability for accidents is generally determined using the rule that a less careful person involved in an accident must pay for at least some of the damages suffered by a more careful person. Common issues related to motorcycle accident litigation include traffic and registration law compliance, medical expenses, and liability determinations. Motorcycle accidents also involve unique insurance provisions. Motorcycle insurance is required by most states and can protect an injured rider against an underinsured or uninsured motorist.

Animal Liability – Dog Bites

Dog attacks represent some of the most gruesome personal injuries that are suffered, particularly where a child is involved (as is often the case). old), and 8 were adults (ages 17, 44, 64, 70, 73, 75 and 87). It is important to teach children to be safe around dogs to prevent these catastrophic events from occurring.

Ohio has a strict liability dog bite statute that states that the owner of a dog is labile for damages inflicted by his/her dog if it bites a person who is either in a public place or lawfully on the dog owner’s property (invitee or guest). Ohio Revised Code §955.28. The dog owner is liable regardless of whether the dog had ever been vicious before and regardless of whether the owner had reason to believe it would behave in a vicious manner. The dog does not get “one free bite”. The only defenses for the strict liability statute arise where the injured party provoked the dog (Ohio Revised Code §955.28). In essence, the dog’s owner is an insurer of the dog.

In addition, the old common law approach is also available for injured plaintiffs. Under the traditional approach, if the owner knows or has reason to know of the dog’s violent propensities, the owner of the dog is liable for damages caused by the dog. Due to the enactment of the strict liability statute, this type of theory is not normally employed.

In all dog bite cases it is essential that measures be taken to preserve evidence, investigate ht incident in question and to enable physicians or other expert witnesses to thoroughly evaluate any injuries. If you or a loved one is a victim of injury caused by an animal,call Scott Smith Law at 614.846.1700

What is Personal Injury?

Personal injury is the name given to the branch of tort law that covers any wrong or damage done to another in his person, property, rights, or reputation. A personal injury can happen at work, in a traffic accident, because of a faulty product or a faulty repair, because of a mistake during medical treatment, or because you slipped and fell on a wet floor or pavement. The personal injury can be physical or psychological but, to be considered actionable, it must occur due to the negligence or unreasonably unsafe actions of your employer, a manufacturer, your doctor, your landlord, or some other person or organization who owes you a duty of ordinary care. Examples of personal injury law causes of action include professional malpractice, wrongful birth, wrongful death, liable, slander, trespass, and nuisance. If you think you may have a case for a personal injury settlement, please contact a personal injury lawyer or personal injury attorney. Visit Scott Smith Law Office at www.sestriallaw.com

Astrology and Car Crashes

Website InsuranceHotline.com, conducted a study that demonstrated individuals with certain zodiac signs were more likely to be involved in car crashes, yet another example of the insurance industries arbitrary and less than sophisticated means of determining auto insurance rates. What do you think?

Motorcycle Accidents

In Ohio, motorcyclists are subject to the same speed restrictions as other vehicles. All motorcyclists are required to drive at a speed that is reasonable and prudent. Ohio Revised Code §4509.11. Any speed in excess of the following speeds is evidence of unreasonable driving:

• 20 mph approaching a school crossing
• 55 mph in other locations O.R.C. Ann. §4509.11

Approximately 2000 motorcyclists are killed, and more than 50,000 are injured in traffic crashes each year. Many of these injuries and deaths could be prevented if motorcycle riders and their passengers wore helmets. In 2001, more than 3,181 motorcyclists were killed, and another 60,000 were injured in traffic crashes in the United States. More than 7,000 of those injured were riders between ages 15 and 20, and 36% of those who died were between ages 16 and 29. Ninety percent of the people who died were male; nearly all of them were operating the bike. Among females who died, 72% were passengers.

Per mile driven, motorcycles are about 21 times more likely than persons in a car to die in a motor vehicle crash, and they’re about 4 times more likely to be injured. While motorcycles make up less than 2% of all registered vehicles in the U.S., motorcyclists account for 8% of total traffic deaths. In 2001, 39% of all motorcyclists involved in fatal crashes were speeding, approximately twice the rate for drivers of passenger cars and light trucks. The percentage of alcohol involvement was more than 37% higher for motorcyclists than for drivers of passenger vehicles.

Wearing a helmet lowers a motorcycle rider’s risk of fatal injury by 29% and reduces the risk of traumatic brain injury by 67%. Despite the documented effectiveness of helmets, many motorcyclists choose not to wear them, especially when state laws don’t require helmet use. Surveys show that in states without universal helmet law, only 34-54% of motorcycle riders wear helmets. But in states where helmet use is mandatory for all riders, 98% of motorcyclists use this safety gear. Currently, less than half of the states require helmet use by riders of all ages.

In most other locations the Department of Transportation department may determine and declare a prima facie speed limit of 60, 55, 50, 45, 40, 35, 30 or 25 miles per hour, whichever is found most appropriate.

In all motor vehicle accidents it is essential that measures be taken promptly to preserve evidence, investigate the accident in question and to enable physicians or other expert witnesses to thoroughly evaluate any injures.

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.

Personal Injury & Tort

Personal Injury and Tort occurs when a person has suffered some form of injury, either physical or psychological, as the result of an accident, medical malpractice or through any other action which leads to physical or emotional distress. Personal injury laws usually provide people with the rights to compensation when another person harms their legally protected interests. Personal Injury and Torts cases are usually dealt with in the jurisdiction of State and Local courts.

Dangers of Cell Phone Use While Driving

An estimated 28 percent of all traffic crashes – or 1.6 million each year – are caused by drivers using cell phones and texting. Cell phone use has increased dramatically during the last 15 years. According to NHTSA, an estimated 11 percent of drivers are talking on cell phones at any point of the day. We need to reverse this alarming trend. Even if you aren't using your phone while driving, it's important to be aware of others who are and to drive defensively.

New Cell Phone Law

Several studies show cell phones are a leading cause of car crashes. It is estimated that cell phone distracted drivers are four times more likely to be in a car wreck. According to a Harvard University study, cell phones cause over 200 deaths and half a million injuries each year.

Ohio has recently passed a new law banning texting while driving. Should they ban cell phone usage all together while driving?

Swimmers, Be Careful Diving Into Unknown Waters

Diving into unknown waters makes news headlines every summer across America. Young people need to understand the dangers that are caused by swimming in unknown waters.

Serious head, neck, and back injuries can occur when you dive into shallow water.

Please be sure you know what you are doing and do not dive into water of unknown depth, and do not dive into shallow water.

Americans aren't in the mood to spend much on travel this summer.

More people are expected to hit the road than did last year, but their budgets will be tighter because of high unemployment, stock markets in retreat and a still-fragile economy.

Do your research to find the best travel deals....there are lots out there!

Insurance Law Intimidates Emergency Room Doctors from Alcohol and Drug Testing

Because a 1953 Ohio insurance law permits health insurance companies to deny claims for injuries that result from alcohol or drug use, emergency room doctors and nurses don’t test patients for fear the costs of the procedure would be denied. Accordingly, many hospitals don’t routinely test patients for drug or alcohol use and won’t until the law is overturned. Of course, if the ingestion of alcohol or drugs would affect the patient’s treatment or mortality, the appropriate tests would are performed.

Grant Hospital of Columbus, Ohio, claimed through it’s representative, about one-half of motor vehicle accident victims taken to Grant have alcohol or drugs in their systems. Inasmuch as Grant estimates they have approximately 2400 Emergency Room patients a year, 1200 patients potentially could have their health insurance claims denied if tested and found to have drugs or alcohol in their system.

To not screen patients for drugs or alcohol ingestion has a negative far-reaching effect. Not screening patients permits the individual to escape being assessed as needing help for alcohol or drug abuse.

Moreover, many of the automobile collisions that occur in Ohio are a direct result of those operating a motor vehicle under the influence of alcohol or drugs. If the individual who caused the collision is not tested, the innocent injured person who suffers an injury as a result is without medical evidence of the at fault party’s drug or blood alcohol level.

If the patient committed a traffic offense or crime that resulted in hospital treatment a criminal defense attorney could argue the at fault party was not under the influence of alcohol or drugs as no test would be available to contradict this claim. The same would hold true if the patient was not under the influence of alcohol or drugs and a test would exonerate the person.

In addition, property and casualty insurance company claims adjustors and insurance defense attorneys often argue the fact that because no alcohol or drug testing was conducted no evidence exists to prove the culpable but injured patient is guilty of recklessness.

Ohio lawmakers are currently preparing a bill that would overturn the 1953 law and would require hospitals to test patients for alcohol and drugs to maintain Level I and II Trauma Center status as set forth by the American College of Surgeons in Chicago which verifies that medical centers meet particular standards to maintain the rating. Mandatory patient screening for alcohol and drugs is not only beneficial to the patient but also to those who are injured by the patient.

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