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Fairness in Nursing Home Arbitration Act of 2009

Robin Bara — Thu, 09 Apr 2009 11:23:00 GMT

In March 2009, The Fairness in Nursing Home Arbitration Act of 2009 (HR 1237) was introduced to the House. The act prohibits nursing homes from inconspicuously placing mandatory arbitration clauses in its contract, which are often overlooked by family members when signing the forms.

These clauses waive the families' rights to a jury trial, which means that if a loved one is injured or dies from neglect while in the care of the facility, the family is forced to have their case heard by an arbitrator and not a jury.

“The Fairness in Nursing Home Arbitration Act will make sure negligent nursing home corporations can be held accountable by our most vulnerable citizens,” said American Association for Justice President Les Weisbrod. “This bill will prevent nursing home corporations from unfairly preying on seniors and stripping away their legal rights. Arbitration should only be voluntarily, not hidden away in the fine print of contracts during our seniors’ greatest time of need.”

The Fairness in Nursing Home Arbitration Act of 2009 will help people like Minnesota resident Dean Cole, who received unconscionable care from a negligent nursing corporation. Suffering from dementia, Dean needed help eating meals every day; but during his 22 day residency, Dean lost 20.6 pounds without his physician or wife ever being notified. After being admitted to the hospital, he was found to be severely dehydrated, with a water deficit near 10 liters. Dean died less than a month later. His family sought justice by bringing a suit against the nursing home for negligent care, but learned they would be forced into one-sided mandatory binding arbitration on the corporation’s own terms and denied the right to trial by jury. The case is still pending.

Although arbitrators are supposed to be unbiased, they are in fact a business, and the nursing homes are the repeat clients. As such, the arbitration may be one sided and the families of the family of the victim is left with little to no recourse.

Originally posted at InjuryBoard by Robin Bara

Chinese Drywall Now Affecting Canada

Karl Truman — Mon, 18 May 2009 13:42:30 GMT

Homeowners in British Columbia and Vancouver have now joined the surge of Chinese Drywall claims. Chris Montgomery, of Canwest News Service, provided that:

Thomas Martin, president of America's Watchdog, says that in the past two weeks about a dozen Lower Mainland callers have all reported experiencing the same nose bleeds, breathing problems and allergy-type symptoms that have affected homeowners across the U.S.

Chinese Drywall is alleged to contain high level of sulfur, which releases a strong, rotten egg smell. The sulfur may cause insomnia, coughing, headaches, dizziness, and breathing difficulties. Homes in the United States were built with the Chinese Drywall, due to the shortage in drywall during the post hurricane season in 2004.

The AP reported that:

Shipping records indicate that imports of potentially tainted Chinese building materials exceeded 500 million pounds during a four-year period of soaring home prices. The drywall may have been used in more than 100,000 homes, according to some estimates, including houses rebuilt after Hurricane Katrina.

Michael Foreman, head of construction consulting firm Foreman & Associates in Sarasota, Florida, said he's been investigating drywall complaints in that state since last year and is sharing information with at least one group of lawyers preparing lawsuits on the matter. Based on shipping records, Foreman estimates the United States in 2006 and the first two months of 2007 imported enough drywall from Chinese manufacturers named in lawsuits to produce at least 50,000 homes at a size of 2,000 square feet each.

However, the use of Chinese Drywall is not limited to new home construction in Florida and Louisiana. Reports of its use has been found in homes in Georgia, Arizona, Texas, Nevada, Connecticut, Maryland, to name a few. Many states have implemented class-action lawsuits against the manufactures of the drywall.

It is currently unknown what, if any legal recourse Canadian citizens may take against the Chinese Drywall manufactures. However, it does appear that the Chinese Drywall issue has reached international importance and has dramatically impacted the lives of many families in both the U.S. and Canada.

Click here to get more information on Chinese Drywall from the Consumer Product Safety Commission (CPSC).

Originally posted at InjuryBoard by Karl Truman

Family Smoking Prevention and Tobacco Control Act

Karl Truman — Thu, 11 Jun 2009 18:00:28 GMT

On Monday this week, the Senate agreed to give the Food and Drug Administration authority to regulate cigarettes and tobacco products. The bill, entitled the Family Smoking Prevention and Tobacco Control Act, was passed by a 61-30 vote. Kentucky Senator, Mitch McConnell, among others who opposed the bill, are concerned how this new law will impact local tobacco farmers, and contend that it places additional burdens on the already overwhelmed FDA.

The AP reported:

Under this law, the FDA has the power to order removal of hazardous ingredients, restrict the marketing and distribution of cigarettes and smokeless tobacco, clamp down on sales to young people, require stronger warning labels and stop use of characterizations such as 'light' or 'low tar' that give people the impression of lower health risks.

The FDA plans to set up an office devoted solely to tobacco and cigarette regulation which is to be paid by a fee from tobacco companies.

The debate over FDA control over tobacco has been ongoing for over a decade. Opponents contend that regulation of the tobacco is necessary to set national standards to control the manufacturing of tobacco products and regulate the type and amount of ingredients used in these products. It’s estimated that over $400,000 people die each year from tobacco related illnesses. Philip Morris USA, the industry leader supports the new legislation.

USA Today reported Spokesman Bill Phelps, of Phillip Morris as stating that:

The company hopes it will be a "framework to pursue tobacco products that are less harmful than conventional cigarettes."

Greg Connolly of Harvard University's School of Public Health stated that he supports it but has "very, very serious concerns." He fears the FDA may do Philip Morris' bidding and focus on finding a "safer cigarette." Instead, he said, it should focus on reducing tobacco use.

"The critical issue," he said, "is what route the FDA will take."

Originally posted at InjuryBoard by Karl Truman

Arbitration Fairness Act of 2009

Karl Truman — Mon, 11 May 2009 16:39:08 GMT

The Arbitration Fairness Act of 2009 was introduced in February of this year. The act proposes that "pre-dispute arbitration agreements will not be enforceable if it requires the arbitration of employment, consumer, or franchise disputes." The act is aimed at preventing mandatory arbitration clauses from being enforceable against parties of unequal bargaining power.

Arbitration agreements are found in many consumer contracts. Since these agreements contain boiler-plate take-it-or-leave-it terms (commonly referred to as adhesion contracts) and are often in fine print, many people do not realize the rights they are waiving and the legal ramifications or impact they may face by signing such an agreement. Congress stated that its purpose for amending the Federal Arbitration Act is to level the playing field between consumers and corporations.

Why are mandatory arbitration clauses so controversial? In 1995 the Supreme Court held in Allied Bruce Terminix Companies v. Dobson, 513 U.S. 265, that mandatory arbitration agreements are enforceable under the Federal Arbitration Act. However, this precedent has been the source of much controversy since many opponents of these clauses contend that it takes away from the 7^th amendment right to a jury trial.

Congress stated that "the Federal Arbitration Act was meant to be applicable only to disputes between commercial entities of generally similar sophistication and bargaining power," and that the proposed amendment was due largely in part to the Supreme Court's construction of the act.

This bill, if passed, will affect nearly all consumers. As stated by the American Association of Justice (AAJ),

Forced arbitration clauses are hidden in the fine print of everything from cell phone, home, credit card and retirement account terms of agreement to employment and nursing home contracts. Just by taking a job or buying a product or service, consumers and employees are forced to give up their right to take their case to court if they are harmed by a corporation.

Even though these provisions may be declared enforceable by a court if they are deemed unconscionable, there is no standardized test for making such a determination. Furthermore, the burden of proving unconscionability is on the party seeking to void the provision, which is most often the consumer or employee.

Since most consumers and employees do not have the same monetary resources as large companies, bringing a claim asserting the unconscionability of an arbitration agreement may be too costly to pursue. Therefore, many people grudgingly submit to these arbitration agreements.

Under the Arbitration Fairness Act of 2009, these mandatory provisions will be declared unenforceable and will protect consumer, employees, and franchisees from mandatory arbitration agreements unless both parties consent.

Originally posted at InjuryBoard by Karl Truman

Understanding Injuries in Low Impact Car Accidents

Robin Bara — Thu, 16 Apr 2009 17:54:00 GMT

It is a common misconception in a low impact auto accident that if the vehicles involved sustained minimal damages, the people in that accident received minimal to no injuries. While it’s possible for people to get in an accident and walk away uninjured, the reality is that victims in a low impact auto accident may have difficulty understanding or even explaining to their insurance company the extent of their injuries. This is especially true with low impact accidents since insurance companies often look at the amount of damages to both vehicles in assessing the seriousness of the accident.

In an article entitled The Truth about Low Speed Accidents, Dr. Dr Barry L. Marks sheds some light on the issues surrounding an injured party in a low impact auto accident:

This causes tremendous disputes between injured parties and the insurance companies that are responsible for compensating them for their car accident claim. To insurers, there really is no speed at which they want to admit an injury could occur. For economic reasons they try to dismiss whiplash or car accident injuries entirely, as if they don’t exist.

Thanks to recent irrefutable research studies proving the existence and exact mechanism of whiplash car injuries, insurers are hard pressed to try the “whiplash is a hoax” defense nearly as much as in the past.

A more recent tactic is to claim the speed of the collision is too low to cause injury.

The fact is that low impact injuries are one of the leading causes for soft tissue injuries such as whiplash. Although not every cut and bruise as a result of an accident is claim worthy, a person should have themselves evaluated by a physician as soon as possible after an accident to ensure that any non-prevalent injuries are documented and most importantly, treated to prevent any long term consequences.

Originally posted at InjuryBoard by Robin Bara

Social Security Disability Experiencing Backlog

Karl Truman — Sun, 24 May 2009 18:16:37 GMT

The national average processing time for the month of March 2009 was 501 days, which is two days above January and February 2009. The cumulative average processing time for the first six months of fiscal year (FY) 2009 was 490 days, a lower number attributable to an average processing time of 479 dyas for October to December 2008, the first quarter of FY 2009. It appears that the processing time is creeping up after some months of improvement.

A growing problem appears to be getting case decisions by the Administrative Law Judges. The average time waiting for a decision to be written has increased. What do the numbers from the backlogs tell us?

- Average processing times are staying around 500 days.

- The number of pending hearings has dropped three months in a row.

- The number of hearings requested has increased about 10% this fiscal year.

- Dispositions are clearly up from last year.

- The number of decisions waiting to be written continues to climb. The number of decisions to be written per decision writer is also climbing.

- The number of cases pending to be pulled is dropping, with the number of days a case is waiting to be pulled at the lowest level in nearly five years.

The backlog continues to frustrate claimants and attorneys alike. Those applying for disability benefits often have little means to subsist while their claim is pending.

Information provided by the National Organization of Social Security Claimants' Representatives also known as NOSSCR.

Originally posted at InjuryBoard by Karl Truman

The Credit Card Legislation Act of 2009

Karl Truman — Fri, 22 May 2009 13:57:18 GMT

CNN Money Reports that Obama is set to sign new-credit card legislation today. The Credit Card Legislation Act of 2009 includes a consumer “Bill of Rights” geared towards protecting consumers and makes it more difficult for credit card companies to increase interest rates.

Under the act, interest rate hikes are prohibited unless the credit card holder is late 60 days or more with a payment. Even then, the original interest rate must be reinstated if the card holder has maintained six months of steady payments.

Furthermore, if a consumer is subjected to an interest rate increase, the credit card companies are banned from retroactively applying that new interest rate to pre-existing balances.

For example, a consumer has a credit card with a balance of $5,000 and is notified by their credit card company that their interest rate is increasing due to a late payment. That new rate only applies to any new purchases. After six months of regular timely payments the interest rate will divert back to the original interest rate.

The act also changes the way credit card payments are applied. Although minimum monthly payments will be allocated as usual, overage fees must be applied to the charges bearing the highest interest rate.

The act is scheduled to come into effect in approximately nine months. Opponents of the act contend that it may force credit card companies to drop some of its risky card holders and may make it more difficult for small businesses to obtain credit cards.

In an article titled US Retailers Fear New Law Could Curtail Store Credit Cards, some retailers are asserting that the new legislation will decrease business. This is largely because store cards are often used to offset the price of a big ticket item. This is done by either offering an immediate discount or teaser rates of no payments or interest for six months.

Now, retailers may have to conduct a more thorough credit report on the consumer. Retailers claim this could now take days instead of minutes, which would deter some people from purchasing expensive items.

CNN Money reported that:

Treasury Secretary Tim Geithner said Monday he was not concerned about a consumer debt "bubble."

"Americans are going to be reducing how much they borrow, improving their balance sheets, saving more," he said. "Banks are still going to have losses they're going to have to adjust to. And that's what's going to make the process of repair here longer. . .But that's a necessary, healthy process of adjustment for us to go through."

Originally posted at InjuryBoard by Karl Truman

The Medical Device Saftey Act and its Impact on Reigel v. Medtronic, Inc.

Karl Truman — Mon, 29 Jun 2009 17:37:00 GMT

Recently Medtronic recalled over 37,000 pacemakers due to defects in the wiring which may cause the pacemaker to short circuit. The FDA classified the recall as a Class 1 due to the reasonable probability that the pacemakers may pose serious health risks and even death.

The FDA provided that:

Patients with malfunctioning pacemakers may experience a return of symptoms associated with abnormal heart rate, such as fainting or lightheadedness.

There are more than 1.7 million Kappa or Sigma pacemakers implanted in patients throughout the world. Of those, only about 21,000 pacemakers are affected by this recall, most of which have been implanted in patients for five years or longer.

Medtronic Inc. issued a letter to physicians alerting them to this problem on May 18. The company communicated with patients via letter on May 27.

Due to the March 2009 Supreme Court ruling in Wyeth v. Levine, pharmaceutical companies are no longer exempt from liability. However, per the 2008 Supreme Court decision in Reigel v. Medtronic, Inc., medical device manufactures have immunity when their products fail and cause injury or death. The Supreme Court held that in instances where the FDA has approved the medical devises, the manufacturer cannot be held liable if the device is defective, even in cases when the device has been recalled.

In response to this ruling, Congress introduced The Medical Device Safety Act.

The AJJ stated that:

The act has been introduced in Congress to restore the rights of injured consumers and to hold negligent medical device manufacturers accountable for the safety of their products in state tort actions.

The purpose of this act is to negate the Supreme Court’s holding in Reigel v. Medtronics and to provide some recourse to patients and families that have been injured as a result of a defective medical devise.

Originally posted at InjuryBoard by Karl Truman

Exxon Valdez to Pay Interest on Punative Damage Award

Karl Truman — Thu, 25 Jun 2009 17:37:50 GMT

The 9^th U.S. Circuit Court of Appeals held on Monday that the plaintiffs, mostly seafood and fishing companies and the defendant, Exxon Valdez should have to pay their own legal expenses incurred for the appeals stemming from the 1989 Exxon Valdez oil spill. However, the panel ruled 2-1 that Exxon Valdez should have to pay the interest on the punative damage award of $507.5 million.

Roughly 33,000 people were plaintiffs in the lawsuit from the initial lawsuit that was filed two decades ago, it’s been reported that Exxon has begun repaying the victims last year.

Initially, the punative damages award of $5 billion was later reduced down to $507.5 million in 2008 by the U.S. Supreme Court which held that a ratio of 1:1 was the upper limits for punitive damages under maritime law. The U.S. Supreme Court directed the decision on the interest to the appellate court.

Bloomberg News reported:

The victims are entitled to interest at the rate of 5.9 percent accruing from 1996, when the original damage award was made final, the U.S. Court of Appeals said today. Jeffrey Fisher, an attorney for the victims, said that formula comes to about $500 million in interest.

In addition the punative damage award, Exxon Valdez estimated the cleanup cost for the oil spill to have cost the company $3.4 billion and the legal fees incurred to be roughly $70 million.

The oil spill occurred on March 23, 1989, when the vessel carrying 53 million gallons of oil crashed into a reef. Over 11 million tons of oil was dumped into the Price Williams Sound destroying local businesses and wildlife. The ship’s caption, Joseph Hazelwood was accused of being intoxicated at the time of the incident. He was never criminally charged, but was convicted of negligently discharging oil, a misdemeanor. He was fined $50,000 and given 1,000 hours of community service.

Originally posted at InjuryBoard by Karl Truman

How Do You Feel About Direct Mail Advertising by Lawyers?

Karl Truman — Tue, 10 Feb 2009 17:21:45 GMT

There is currently a great debate among lawyers in Indiana about allowing lawyers to send direct mail solicitations to prospective clients. I would like comments to know how you feel about that?

The Indiana State Bar Association has commissioned a study at the cost of $25,000.00 of member dues to support their effort to enact a 30 day waiting period for attorneys to send direct mail to prospective clients. They claim enacting this rule will improve the public image of lawyers and that those in automobile accidents are traumatized by receiving a letter from a lawyer.

I feel that as long as we have television advertisements of lawyers with talking cars, talking dogs and space alien clients, not much is going to improve our image. I also feel that if a consumer does not like the mail in their mailbox, they will just throw it away with all the credit card offers and other junk mail.

How do you feel about this issue? I would like to know how the public feels about this issue, so post a blog comment and let me know!

Karl Truman

Originally posted at InjuryBoard by Karl Truman