Brien Roche Law http://www.brienrochelaw.com Fri, 19 Dec 2014 18:00:32 +0000 en-US hourly 1 Surgery Center Negligence http://www.brienrochelaw.com/blog/surgery-center-negligence/ http://www.brienrochelaw.com/blog/surgery-center-negligence/#comments Fri, 19 Dec 2014 18:00:32 +0000 http://www.brienrochelaw.com/?p=9357 Surgery Center Negligence from Brien Roche Law

Surgery center negligence has become a big issue since the death of Joan Rivers. Joan Rivers, the famous comedian, passed away during the course of a routine procedure.  The procedure was performed in a surgery center operated by her GI … Continue reading

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Surgery Center Negligence from Brien Roche Law

Surgery center negligence has become a big issue since the death of Joan Rivers.

Joan Rivers, the famous comedian, passed away during the course of a routine procedure.  The procedure was performed in a surgery center operated by her GI doctor.  The doctor at the time was performing an endoscopy.  An endoscopy is where a scope is placed down the esophagus to look at the esophagus and also to look at the stomach if need be.

The 81 year-old comedian died on September 4th,2014 after suffering brain damage.  The surgery center in this case was located in Manhattan.

Surgery Center Negligence-The Risks

Federal officials have investigated the death.  They have found numerous violations.  The violations consist of failure to notice or take action to correct Rivers deteriorating vital signs for 15 minutes.  There was also a discrepancy in the medical records of the amount of anesthesia she received.  There was an apparent failure to weigh Rivers.  That should have been done in order to calculate the amount of anesthesia she needed.  In addition a procedure was performed which Rivers had not given consent to. No determination has been made as to actual surgery center negligence.

The Ambulatory Surgery Center Association of course defends the conduct of their members and denies any prevalence of surgery center negligence.

A 2013 study by the University of Michigan analyzed over 200,000 outpatient surgeries between 2005 and 2010 to determine what the significant risk factors were.  They found there to be seven (7) risk factors associated with surgery within 72 hours of the surgery.  The most common of those are the patient being overweight, having obstructive lung disease or hypertension.

The Consumers Union has been keeping a close eye on the performance of surgery centers.  They maintain that hospitals are more tightly regulated than surgery centers.  Hospitals have to report on many more aspects of what they do such as errors and infections.  The number of surgery centers has increased dramatically over the years.  In addition the number of procedures they perform has increased dramatically.  They now perform colonoscopies, cataract removal, joint repairs and spinal injections.  This is all done as an outpatient.  In fact more than two-thirds (2/3) of operations performed in the U.S. now occur in outpatient centers.  Some of those outpatient centers are owned by hospitals.  Most of the surgery centers however are owned by the doctors who operate there.  In 2011 the number of procedures performed in surgery centers was 23 million.

One advantage of going to a surgery center is that it avoids the exposure to infections, chaos and delay that frequently are seen at hospitals.  The risk of going to a surgery center is that the surgery center personnel typically are not as well trained or equipped to deal with a sudden emergency.  One thing to look for in any surgery center is whether or not it has a crash cart.  That is a wheeled cart containing a defibrillator, medicines and other lifesaving supplies that are standard in hospitals.

Surgery Center Negligence: Pre-Screening

What is critical in the operation of surgery centers is pre-screening.  Pre-screening means that unhealthy patients are weeded out and referred to hospitals.  Hospitals are better able to deal with patients with such conditions as obesity, sleep apnea and breathing difficulties.  All of these people may need to have their procedure done at a hospital.

Hospitals are more likely to be fully equipped and to have staff members with greater experience in handling emergencies.  In general, unless the personnel have drilled for it and trained for, it is going to be difficult for them to deal with a true emergency at a surgery center.

Postoperative infections in hospitals have been a source of concern for many years.  Little is known about the rate of post-surgery infections at surgery centers. Surgery center negligence in that regard is difficult to gauge.

Surgery Center Negligence-What To Ask

In looking at any surgery center for your procedure it is important to ask open-ended questions such as “How are you going to deal with an infection that may arise?”  “How are you going to deal with a medical emergency that arises during the course of my procedure?”  Those are all pertinent and fair questions to ask.

For more information on surgery centers see the pages on Wikipedia.

For more information on medical malpractice and surgery center negligence see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Tort Duty http://www.brienrochelaw.com/blog/tort-duty/ http://www.brienrochelaw.com/blog/tort-duty/#comments Tue, 16 Dec 2014 18:00:03 +0000 http://www.brienrochelaw.com/?p=9334 Tort Duty from Brien Roche Law

The issue of tort duty or duty in tort was recently taken up by the Virginia Supreme Court.  The case is RGR v. Settle decided on October 31, 2014.  Mr. Settle was the operator of a truck that was driving on … Continue reading

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Tort Duty from Brien Roche Law

The issue of tort duty or duty in tort was recently taken up by the Virginia Supreme Court.  The case is RGR v. Settle decided on October 31, 2014.  Mr. Settle was the operator of a truck that was driving on a private road.  The private road intersected with a railroad crossing.  The railroad crossing was controlled with “crossbuck” signs.  There were no warning signs, stop signs or other barriers.  The railroad owned the land 30 feet on either side of the railroad tracks starting in the middle of the tracks and then going outward.  The defendant in this case, RGR, was a lumber company.  RGR unloaded lumber from the railroad cars and then stacked it on the land alongside the railroad tracks.  In this particular case, some of the lumber was stacked in such a way that it encroached by seven (7) feet into the land owned by the railroad on that side of the tracks.  As such the stacks of lumber were 23 feet from the center of the tracks.  Mr. Settle had been crossing the railroad at this particular point several times that day.  He was hauling gravel to a nearby construction site.  The train at the time of the impact was traveling 45 miles per hour and was composed of three engines and more than 100 cars.  It was conceded that the sight line from the intersection of the private road and the railroad tracks was 800 feet west.  That was the direction from which the train was coming.  The railroad company conceded that one of its objectives was to make sure that there was a clear sight line for people crossing the tracks.  The railroad company likewise testified that RGR was not supposed to be storing any of its lumber on the railroad property.  An expert testified on behalf of Settle that due to the various noises inside his truck it would have been extremely difficult to hear any noises outside the cab.  There was disputed testimony as to whether or not the train blew its whistle as it approached this particular intersection.  There was evidence that Settle could not see the tracks to the right because of the lumber stacks.  At the intersection of the private road and the railroad tracks there was no stop sign.  Indeed it was conceded by a witness on behalf of RGR that if Settle believed there was no train coming, there was no obligation on his part to stop.

Tort Duty-Duty to Mankind

The Virginia Supreme Court dealt with the issue of whether or not RGR had a tort duty to Settle to exercise ordinary care in terms of the placement of this lumber.  The Court reviewed the history of Virginia Supreme Court decisions on the issue of tort duty.  General negligence principles require a person to exercise ordinary care to avoid injury to others.  In fact in a 1927 case it was recognized that there is a duty owed to mankind generally not to do any act which a person of ordinary prudence could reasonably apprehend, as a natural and probable consequence thereof, would subject another person to peril.  The common law requires that every person exercise ordinary care in the use and maintenance of his own property to prevent injury to others.

The Court also noted that applying common law tort duty, a person may not use his land in such a way as unreasonably to injure the interest of persons not on his land, including owners of adjacent lands, other land owners and the users of public ways.  Citing the Second Restatement of Torts, the Court noted that a possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land which the possessor realizes or should realize would involve an unreasonable risk of such harm.

Tort Duty- Owners of Land

In this particular case the Circuit Court properly instructed the jury that every person has the tort duty to exercise ordinary care in the use and maintenance of its property to prevent injury or death to others.  In order for such a person to be negligent, his conduct must create a recognizable risk of harm either to that individual or to a class of persons within a given area of danger.  Whenever circumstances exist that an ordinary person could reasonably understand that, as a natural and probable consequence of his act, another person rightfully there will be in danger of receiving an injury, a tort duty to exercise ordinary care to prevent such injury exists.  The existence of that tort duty does not depend on proof of a particular relationship.  In this case the purpose of the railroad’s right-of-way was to maintain clear sight lines for motorists and the train crew.  Settle in this case was rightfully traveling on this part of the road.  RGR’s argument that it owed no duty to Settle because RGR had no actual or constructive knowledge that the lumber stacks created a dangerous condition was simply without merit.  The question as to whether RGR breached its duty of ordinary care by stacking its lumber within the right-of-way area must be distinguished from the question of whether or not a tort duty exists.  In this case such a duty does exist.  The issue of whether or not there was a breach of that duty and whether or not that breach was a cause of the injury, in this case the death of Settle, was for the jury.  RGR’s contention that it owed no duty to Settle would in effect absolve one of liability for negligence no matter how dangerous the conduct or foreseeable the injury.  Virginia’s Supreme Court refused to adopt that argument.
For more information about wrongful death actions see the pages on this site. For more information on the concept of duty of care see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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Life Expectancy http://www.brienrochelaw.com/blog/life-expectancy/ http://www.brienrochelaw.com/blog/life-expectancy/#comments Mon, 15 Dec 2014 18:00:26 +0000 http://www.brienrochelaw.com/?p=9352 Life Expectancy from Brien Roche Law

Life expectancy is on the rise. So says recent data from the Centers for Disease Control and Prevention.The average life expectancy for people born in 2012 in the United States is a record high of 78.8 years. Girls born in … Continue reading

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Life Expectancy from Brien Roche Law

Life expectancy is on the rise. So says recent data from the Centers for Disease Control and Prevention.The average life expectancy for people born in 2012 in the United States is a record high of 78.8 years.

Girls born in 2012 will live on average 4.8 years longer than boys born that same year.  The life expectancy for girls born in 2012 is 81.2 years.  For boys born in that same year it is 76.4 years.  The rate of death in the United States reached a record low. That rate of death is 732.8 per 100,000 people in 202.  That is slightly down from 2011.

Life Expectancy-Decrease in Mortality

The decrease in mortality can be attributed to reductions in death rates from the major causes of death.  The major causes of death are heart disease, cancer, stroke, chronic lower respiratory diseases, accidents, Alzheimer’s disease, diabetes, suicide, kidney disease and influenza and pneumonia.

Heart disease is the most common cause of death.  It is followed by cancer.  Respiratory disease, stroke and accident are next in order of incidence.  The rate of people dying from eight (8) of the top ten (10) causes of death decreased through 2012.  The rate of people dying from suicide or accidents however increased.

Black men had the highest death rate.  Their death rate is 1,086.4 deaths per 100,000.  Hispanic women had the lowest death rate.

The infant mortality rate likewise has increased slightly.  The ratio of infant deaths to live births per year decreased 1.5%.  Infant mortality is generally regarded as a good indicator of overall health.  A recent report however found that the U.S. infant mortality rate is higher than those of 25 other developed nations.

The leading causes of infant mortality in 2012 were multiple. They are birth defects, low birth weight, sudden infant death syndrome and birth complications.

Life Expectancy-65 and Over

The life expectancy in 2012 for people aged 65 and older increased.  That life expectancy is now 19.3 years.  That means that a person who was 65 in 2012 is expected to live another 19.3 years.  On average that means the life expectancy would be 84 for that person.

For more information on life expectancy issues see the pages on Wikipedia. For more information on personal injury issues see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Eyewitness Identification http://www.brienrochelaw.com/blog/eyewitness-identification/ http://www.brienrochelaw.com/blog/eyewitness-identification/#comments Thu, 06 Nov 2014 18:00:20 +0000 http://www.brienrochelaw.com/?p=9332 Eyewitness Identification from Brien Roche Law

Eyewitness identification is a critical feature of our legal system.  Most people would agree that eyewitness identification however stands on fragile legs. Eyewitness identification is frequently influenced by such things as the race of a suspect, bad lighting, aggressive police … Continue reading

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Eyewitness Identification from Brien Roche Law

Eyewitness identification is a critical feature of our legal system.  Most people would agree that eyewitness identification however stands on fragile legs. Eyewitness identification is frequently influenced by such things as the race of a suspect, bad lighting, aggressive police interrogations and the overall trauma of the event.

Many people believe that human memory is like a tape recorder.  It is not.  The memory is frequently very brittle and easily influenced.

Eyewitness Identification-DNA Testing

DNA testing over the years has shown the perpetual errors in eyewitness identification.  As a result, police and prosecutors are forced to look at the research on human memory.

There are several steps that have been recommended in order to reduce the potential error rate in eyewitness identification.  Some of those consist of adopting written guidelines for identification, presenting unbiased lineups, taking steps to measure witness confidence early in the process.

As of 2014, 1,432 wrongfully-convicted prisoners have been exonerated according to the National Registry of Exonerations.  This organization has tracked these releases since 1989.  Thirty-five (35%) of those people were imprisoned due to mistaken identification.

In 2013 91 exonerations were reported.  There have been 17 individuals exonerated in the District of Columbia between 1989 and July of 2014.  There have been 21 in Maryland.  There have been 40 in Virginia.  Factors contributing to these exonerations from these jurisdictions were false or misleading evidence, perjury and mistaken identification.

Most of these eyewitness identification errors occurred in sexual assault cases.

The brain has a bias toward negative events.  Our memory does also.  What that means is that memory tends to focus more on unpleasant experiences as a way to adapt in the future.  In addition when people are traumatized, their brains literally stop operating in normal fashion.  The brain is in effect taking snapshots of what is happening.  Those snapshots tend to be of the most emotional scenes.  That way the brain knows how to deal with those events if they recur.  In addition, every time someone remembers that event from the past, the brain reconstructs that image.  It is not always reconstructed with the exact same details.  What that means is that the brain does not reconstruct the event in a sequential way but rather based upon the snapshots.

Over the years there has been a lot of controversy about repressed and recovered memory.  Most professionals agree that approach has been debunked.  The idea that you forget being molested and then suddenly remember it because you went through some kind of therapy has been largely discredited within the field of psychology.  Some states still allow recovered memories to be used as evidence in legal proceedings.

Eyewitness Identification-Recommended Changes

Fifteen years ago the National Institute of Justice published “Eyewitness Identification:  A Guide for Law Enforcement”.  This publication contains several recommendations.  Those recommendations included having standardized instructions for witnesses; having a single suspect per lineup; using a minimum of five so-called fillers or stand-ins in a lineup; recording witness statements; preparing lineup reports; standardizing the photographs of photo lineup members.  Some things that this guide did not fully address were the use of double-blind lineups and sequential lineups.  A double-blind lineup is one where the investigating officer is unaware of which individual in the lineup is the suspect.  A sequential lineup is where witnesses are shown, physically or through a photo array, suspects one at a time rather than a simultaneous lineup where they are all introduced at the same time.

At this point most law enforcement agencies have no written policies for eyewitness procedures.  As a result, there are frequent instances where a well-intended police officer influences the identification process, perhaps innocently.  This occurs as a result of the use of leading questions, the general attitude of the officer as to the culpability of the suspect and simply body language.

In October 2014 the National Research Council of the National Academy of Sciences, a non-profit organization, published its research on the subject.  The panel determined that action was necessary to offset concerns about the validity of eyewitness identification.  The study went on to recommend several things.  In particular they recommended the development and use of standardized witness instructions, the documenting of witness confidence level, videotaping of identification procedures, adopting double-blind lineups and photo array procedures and training officers in proper identification techniques.  The report also encouraged the court to adopt new rules governing eyewitness identification including conducting pre-trial inquiries, alerting juries to prior identifications, allowing scientific experts to testify on eyewitness reliability and encouraging judges to use instructions to convey information about key factors relating to eyewitness identification.

The report indicated that additional research is needed on the use of simultaneous and sequential lineups.

The U.S. Supreme Court in Perry v. New Hampshire in 2012 addressed the issue of eyewitness identification and stated that the responsibility is on state officials as to whether or not they should change their laws on these issues.  New Jersey and Oregon had been in the forefront of such changes.  In New Jersey, when a defendant presents evidence of a suspicious identification, then the court must hold a hearing to consider the challenge.  Disputed evidence is admitted but the judge is required to explain to jurors the factors that could increase the chance of misidentification.

In Virginia a 2005 law requiring jurisdictions to adopt an eyewitness identification policy has in large measure been ignored by law enforcement.

At this point it is conceded by many that human memory is much like evidence.  It can be contaminated.  Contamination can come in the form of leading questions.  It can come in the form of tainted identification procedures.  It can come in the form of nonverbal cues sent by the investigating officer to the victim/witness.  Any of these can undermine the reliability of the eyewitness identification.

For more information on eyewitness identification and other matters that may be related to injury claims, see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Auto Insurance http://www.brienrochelaw.com/blog/auto-insurance/ http://www.brienrochelaw.com/blog/auto-insurance/#comments Thu, 30 Oct 2014 17:09:21 +0000 http://www.brienrochelaw.com/?p=9329 Auto Insurance from Brien Roche Law

You would think that the topic of auto insurance is a simple one.  Years ago some insurance carriers began writing auto insurance policies in what they call plain English.  Plain English to an insurance carrier is typically not plain English … Continue reading

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Auto Insurance from Brien Roche Law

You would think that the topic of auto insurance is a simple one.  Years ago some insurance carriers began writing auto insurance policies in what they call plain English.  Plain English to an insurance carrier is typically not plain English to the ordinary American.  As simple as insurance companies may have tried to make auto insurance language, the fact is they are complicated documents.  They become especially complicated where you have coverage being provided apparently in one part of the policy only to be excluded or exempted in some other part of the policy.

Basic forms of auto insurance coverage are liability, comprehensive, collision, uninsured motorist and medical payments.

Auto Insurance-Liability

Liability coverage protects you in the event that someone else alleges that you were at fault for an automobile accident.  By you, I mean either you as the insured or anyone who is driving your vehicle with your permission.  Under state statutes anyone who is a “permissive user” of the vehicle is covered by the liability policy.  Liability coverage is the only form of coverage in Virginia that comes close to being mandatory.  In reality however it is not mandatory because you can choose to pay an uninsured motorist fee in which event you may go without liability coverage.  The minimum coverage allowed in Virginia for liability is $25,000.00.

That $25,000.00 means that the insurance carrier will pay up to $25,000.00 in the event that you were found to be liable for the collision.  The insurance carrier will also provide an attorney to defend you.  The attorney is one that they chose- not you.

Auto Insurance-Uninsured Motorist

Uninsured motorist coverage or what can also be called underinsured motorist coverage applies in those instances where the at-fault motorist has minimum limits or low limits.  For instance if the other driver who is at fault only has $50,000.00 in coverage and you have a $200,000.00 claim, then your underinsured motorist coverage may apply in order to pick up the difference between that $50,000.00 and your $200,000.00 claim.

This latter form of coverage applies whether you are in an insured vehicle or not.  For instance if you are a pedestrian then conceivably your uninsured motorist coverage could apply.  Imagine that you are struck while crossing the street in a crosswalk.  The striking vehicle only has $25,000.00 of coverage.  Your $300,000.00 auto insurance policy may apply in that instance.  In this event the available coverage is $300,000.00 i.e., $25,000.00 from the at-fault motorist and $275,000.00 from your policy.

Issues of coverage under uninsured motorist endorsements of insurance policies can be rather complex.

Auto Insurance-Collision

Collision coverage is coverage that applies where your vehicle has been damaged.  It makes no difference who is at fault.  If you have that coverage your insurance carrier will repair your vehicle.  Typically if the repair cost is more than 70% of the value of the vehicle, then the insurance carrier will “total” the vehicle.  Under that circumstance they are only obliged to pay you the fair market value of the vehicle.  Fair market value may be determined by looking at such sites as Kelley Blue Book and Edmunds.com.  The insurance companies use their own book upon which they base fair market value of vehicles.  This can sometimes create an unhappy circumstance.  Suppose you have a lien against the vehicle for $10,000.00 and the vehicle is only worth $8,000.00.  The insurance company is only obliged to pay you that fair market value i.e., $8,000.00.  That leaves you $2,000.00 short in terms of having to pay your lender for a vehicle you no longer have.

Auto Insurance-Comprehensive

Comprehensive coverage is somewhat similar to collision in that it covers such things as fire, theft and glass breakage.  These types of coverage apply regardless of who may be at fault for the particular damages.

Auto Insurance-Medical Payments

Medical payments coverage typically comes in increments of $1,000.00, $5,000.00 and $10,000.00.  This form of coverage may stack, meaning that if you have five vehicles and your policy limits are $5,000.00 in medical payments coverage then in effect you may have a total of $25,000.00 in coverage.

This type of stacking in Virginia typically does not apply however to other forms of coverage i.e., liability coverage or uninsured motorist coverage.  However that particular issue may be policy-specific.  What that means is that you need to look at each insurance policy to determine whether or not stacking is allowed.

Medical payments coverage (frequently called Med Pay) is a very valuable form of coverage to have.  Even though your medical bills may have been submitted to your health insurance carrier and even though you are claiming your medical bills in your liability claim against the at-fault motorist, you can still submit these medical bills to your medical payments carrier and they will pay them.

Auto Insurance-Subrogation

One thing you need to be aware of in any auto collision is that if bills are submitted to your health insurance carrier then typically they have a right of subrogation.  The right of subrogation means that the health insurance carrier has a right to recover every dollar that they paid out on your behalf.  Some health insurance policies allow a reduction of this right of recovery for the attorney’s fees that you would incur.  Typically in an injury case your attorney’s fees would be 1/3 of the recovery.  In that circumstance they may reduce their subrogation claim by 1/3.  That however again is policy-specific.  That right of subrogation applies however only to employer-issued ERISA health insurance policies.  Otherwise subrogation is barred in Virginia for health insurance policies.

For more information on auto insurance and car accident related issues see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Ruptured Aneurysm http://www.brienrochelaw.com/blog/ruptured-aneurysm/ http://www.brienrochelaw.com/blog/ruptured-aneurysm/#comments Sun, 26 Oct 2014 18:00:27 +0000 http://www.brienrochelaw.com/?p=9325 Ruptured Aneurysm from Brien Roche Law

A ruptured aneurysm is typically a catastrophic event. An aneurysm may be in the brain or it may be in other parts of the body.  The ruptured aneurysm frequently leaves the patient barely conscious and in shock with massive internal … Continue reading

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Ruptured Aneurysm from Brien Roche Law

A ruptured aneurysm is typically a catastrophic event. An aneurysm may be in the brain or it may be in other parts of the body.  The ruptured aneurysm frequently leaves the patient barely conscious and in shock with massive internal bleeding.  Sometimes the heart may stop.

Ruptured Aneurysm: Abdominal Aorta

If the ruptured aneurysm is in the abdominal area then frequently it is found in the abdominal aorta.  That is the body’s largest artery.  What happens with an artery like that is that it slowly bulges, then balloons and then finally bursts.

Statistically only 50% of the people in this condition live to reach an operating room.  Of those, there is a 90% mortality rate.  Every minute that passes increases that mortality rate by 1%.

An aneurysm of this nature is frequently difficult to diagnose.  First an EKG needs to be done in order to determine whether or not the patient has suffered a heart attack.  If the patient reports pain in the abdominal area, that certainly is a clue.  In addition swelling of the abdominal area likewise is a clue that the patient has a ruptured aortic abdominal aneurysm.  That diagnosis is typically confirmed with an ultrasound.  At that point the patient needs to receive immediate transfusions.

Throughout this period of time CPR is being administered in order to prevent cardiac arrest.

In addition an anesthesiologist needs to be available to provide monitoring and also to oversee the infusion and transfusion equipment necessary for the surgery to begin.

The administration of anesthesia frequently causes the blood pressure to drop.  The surgeon then needs to open the abdominal area and sometimes compress the aorta in order to allow for resuscitation of the patient.  The area of the aneurysm needs to be quickly identified.  Clamps are placed on the portion of the aorta that is affected.  This allows the surgical repair of that aneurysm.  That prevents the life-threatening bleeding.  Meanwhile transfusion is keeping the patient alive with fresh blood.

The surgeon typically will replace the ruptured section of the aorta with a strong, durable artificial graft which allows blood to pass through it normally.

Post-surgically the wound is typically left open since there is going to be significant swelling from the injury and also from the surgery.  The open wound allows the swelling to occur without further complications.

Ruptured Aneurysm: Prevention

Ruptured abdominal aneurysms are preventable.  There is a 98% success when the aneurysm is detected by testing and repair through elective surgery.

People that are particularly at risk are men that are over 60, those who have had an immediate relative who had an abdominal aortic aneurysm, people with high blood pressure, smokers.

The best cure of course is prevention.  Medicare covers a one-time screening for these types of aneurysm.  If an aneurysm is detected that appears to be dangerous then elective surgery can be scheduled and the aneurysm can be prepared.

For more information on medical malpractice and related topics see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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What Kind of Compensation is Available for a Spinal Cord Injury Claim? http://www.brienrochelaw.com/blog/spinal-cord-injury-claim/ http://www.brienrochelaw.com/blog/spinal-cord-injury-claim/#comments Sat, 25 Oct 2014 18:00:07 +0000 http://www.brienrochelaw.com/?p=9323 What Kind of Compensation is Available for a Spinal Cord Injury Claim? from Brien Roche Law

A spinal cord injury is a serious and life-altering experience that can impact the lives of victims both temporarily or permanently.  Because of the integral relationship between the spinal cord and the body, spinal cord injuries can create a host … Continue reading

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What Kind of Compensation is Available for a Spinal Cord Injury Claim? from Brien Roche Law

A spinal cord injury is a serious and life-altering experience that can impact the lives of victims both temporarily or permanently.  Because of the integral relationship between the spinal cord and the body, spinal cord injuries can create a host of health problems.  Spinal cord injuries generally involve damage to the spinal cord that runs along the spine, which inhibits signals sent to or from the brain.  When these signals are inhibited, they will result in the loss of motor skills and nerve function.  Other potential health issues of spinal cord injuries include paralysis of the lower body or all four limbs.  A spinal cord injury claim can arise in a number of ways such as from car accidents, medical malpractice accidents, slip and falls or acts of violence.  In response to the detrimental nature of spinal cord injuries, the compensation for such injuries varies and will depend on the state in which you live in.  This article discusses the main types of compensation available to those pursuing a spinal cord injury claim.

Spinal Cord Injury Claim: Types of Compensation Available

Courts may order monetary awards called “damages” that compensate victims for the spinal cord injury that they suffered at the hands of another.  This compensation serves the purpose of placing the victim in their pre-injury condition by paying for any losses that victim incurred as a result of the injury.  The main types of damages ordered by courts are reimbursement for medical expense, pain and suffering, the cost of assistive devices, modifications to make the victims’ homes accessible and loss of income.

Reimbursement of Medical Expenses:   These are damages given to reimburse the victim for the treatment they already received and compensation for the estimated costs that will be incurred in the future.

Pain and Suffering:  You may be entitled to pain and suffering damages that are meant to compensate victims that are suffering from discomfort due to their spinal cord injury.

Assistive Devices:  The court may order damages for the use of assistive devices such as wheelchairs, crutches and canes that will assist the victim in carrying on in their daily lives.

Modifications for Accessibility:  These damages are given to pay for the modifications needed to make the victim’s home more accessible after the victim’s injury.

Spinal Cord Injury Claim-Seeking Legal Help

If you have a spinal cord injury claim obtain a good attorney who specializes in personal injury lawsuits.  This is the first step to obtaining the damages that you may be entitled to because of your injury.

For more information about your spinal cord injury claim and personal injury in general, see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Unnecessary Hip Replacement http://www.brienrochelaw.com/blog/unnecessary-hip-replacement/ http://www.brienrochelaw.com/blog/unnecessary-hip-replacement/#comments Fri, 24 Oct 2014 18:00:35 +0000 http://www.brienrochelaw.com/?p=9327 Unnecessary Hip Replacement from Brien Roche Law

Hip replacement surgery has become the bread and butter of many orthopaedic surgeons.  Many of these surgeries are simply unnecessary.  Hip pain, where there is no arthritis, typically is a clue to the fact that impending hip replacement surgery may … Continue reading

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Unnecessary Hip Replacement from Brien Roche Law

Hip replacement surgery has become the bread and butter of many orthopaedic surgeons.  Many of these surgeries are simply unnecessary.  Hip pain, where there is no arthritis, typically is a clue to the fact that impending hip replacement surgery may not be necessary. An unnecessary hip replacement is avoidable.

Unnecessary Hip Replacement-Hip Repair

The repair mechanism is surgical but it is minimally invasive.  This type of repair surgery is designed to relieve pain and also prevent hips from wearing out.

The cause of many hip symptoms is due to the fact that the ball and socket in the hip do not fit together perfectly.  This is called impingement.  It is somewhat like putting a square peg into a round hole.  The ball of the hip bone puts extra pressure on the rim of the socket which is called the labrum.  The socket is encircled with cartilage which provides cushion between the two bones.  When that cartilage breaks down as a result of the ball not properly fitting, then it produces pain.

In order to repair this condition, the surgeon makes half-inch incisions around the hip and then re-contours the ball into a round shape.  That way it fits perfectly into the hip socket.  Next the torn cartilage, that is the cushion around the socket, is repaired. Then it is secured onto the bone with stitches that anchor it there.  At that point there should now be a perfect match between the ball and the socket.

This type of surgery is typically done as outpatient surgery. The patient can go home that day.

Problems of this nature frequently are genetic.  These problems however can be a result of sports participation.  In particular sports injuries between the ages of 12 and 17 are a common cause.  During this time-frame in a person’s life the growth plates are closing and bone structures are forming.  If they form improperly during this period of time then they can cause problems later in life.

Unnecessary Hip Replacement: Expense

Although a hip replacement may have served the same purpose as this hip repair, the hip replacement is obviously much more dramatic.  It is also much more expensive.  Hip repair in a circumstance where the hip bone is simply a little too big for the socket should be the preferred course of action.

However even before this hip repair is attempted the first course of action should be a plan of injections, anti-inflammatory medications and physical therapy.  In some instances that may solve the problem.  If however it simply is an instance of where the hip bone is too big for the socket then probably some mechanism of repair surgically is going to be necessary.

Unnecessary Hip Replacement: Contact Us

For more information on unnecessary hip replacement and medical malpractice and related topics see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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Rear End Collision : Two Questions You Should Ask http://www.brienrochelaw.com/blog/rear-end-collision/ http://www.brienrochelaw.com/blog/rear-end-collision/#comments Thu, 23 Oct 2014 14:00:46 +0000 http://www.brienrochelaw.com/?p=9322 Rear End Collision : Two Questions You Should Ask from Brien Roche Law

A rear end collision is one of the most common car accidents.  Most of us have heard that if you are rear-ended in a car accident, the tailing car is almost always at fault.  While that is true in most … Continue reading

for more personal injury news and views visit, Brien Roche Law

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Rear End Collision : Two Questions You Should Ask from Brien Roche Law

A rear end collision is one of the most common car accidents.  Most of us have heard that if you are rear-ended in a car accident, the tailing car is almost always at fault.  While that is true in most instances, there are a few scenarios in which the tailing driver may only be partially liable or not liable at all.  Due to the nature of rear-end collisions, tailing drivers have a difficult time proving they are not at fault.  Luckily for forwarding or tailing drivers, there are factors that you can use to determine whether you are at fault for a rear end collision.

Rear End Collision: Are You At Fault Under The Assured Clear Distance Rule?

Most cases of rear-end collisions are open and shut, requiring little discussion about each driver’s liability.  This is due to the “Assured Clear Distance Ahead” (ACDA) rule that requires that tailing drivers keep an assured clear distance behind the vehicle.  This means the tailing driver must at all times keep a distance that allows the tailing driver to stop suddenly and safely if the vehicle in front stops suddenly.

In order for this rule to apply, both the forward and tailing drivers must be driving the speed limit and following all other traffic laws.  To give an example, let’s say that you’re driving on the highway when the car in front of you stops suddenly.  You try to brake but end up hitting the car in front of you.  If you and the driver in front of you were both driving the speed limit and you still hit that driver’s car, you have violated the ACDA rule and you are entirely at fault.  Even though this rule seems very cut and dry, there are a few scenarios where the ACDA rule may not apply.

Rear End Collision:Are There Any Scenarios Where The ACDA Would Not Apply?

A tailing driver may not always be liable for rear-ending the car in front of him.  Even when the ACDA rule applies, the forward driver may be at fault for causing the rear end collision, removing the tailing driver’s liability.  Here are the most common scenarios where the forward driver is at fault:

  • Driver’s car malfunctions i.e., a flat tire, but he does not pull over to shoulder and employ hazard lights;
  • Driver’s brake lights malfunction
  • A driver stops suddenly to make a turn

In each of these scenarios the forward driver negligently caused the rear-end collision to occur.  Given the specific facts of the accident, the tailing driver may be partially at fault or not at fault at all.  In a contributory negligence state like Virginia, any negligence on the part of the forward driver that was a direct cause of the collision will allow the tailing driver to avoid paying damages to the forward driver.

Rear End Collision:The Importance of Contacting a Personal Injury Attorney

For all automotive accidents where fault has not been determined, each driver should meet with an attorney to discuss his or her rights and the best course of action for the case.

For more information see the other pages on this site dealing with car accident claims.

for more personal injury news and views visit, Brien Roche Law

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ERISA Subrogation http://www.brienrochelaw.com/blog/erisa-subrogation/ http://www.brienrochelaw.com/blog/erisa-subrogation/#comments Sun, 12 Oct 2014 18:00:19 +0000 http://www.brienrochelaw.com/?p=9306 ERISA Subrogation from Brien Roche Law

The issue of ERISA subrogation was the subject of a recent Supreme Court decision entitled U.S. Airways, Inc. v. McCutchen. In this case the Court dealt with the ERISA statute and the concept of ERISA subrogation.  ERISA stands for Employee Retirement … Continue reading

for more personal injury news and views visit, Brien Roche Law

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ERISA Subrogation from Brien Roche Law

The issue of ERISA subrogation was the subject of a recent Supreme Court decision entitled U.S. Airways, Inc. v. McCutchen.

In this case the Court dealt with the ERISA statute and the concept of ERISA subrogation.  ERISA stands for Employee Retirement Income Security Act.  That statute provides a number of different benefits for certain employer/employee-related compensation.

Erisa Subrogation: McCutchen

This particular case arose out of an automobile accident in 2007.  The U.S. Airways employee was James McCutchen.  He was injured in a serious car accident.  His employer-sponsored health plan paid his medical expenses which totaled $66,866.00.  The plan requested reimbursement.  McCutchen’s auto accident case settled for $110,000.00.  After the payment of attorney’s fees that left him with $66,000.00.

McCutchen’s defense to the claim asserted by U.S. Airways was two-fold.  The first defense was that the plan’s recovery should be limited to that portion of the settlement that was allocated to medical expenses.  The second defense was the so-called common fund doctrine.  That doctrine says that the plan’s available recovery should be reduced to cover reasonable attorney’s fees.  Typically the attorney’s fees are one-third (1/3).  That would reduce the recovery by the plan by 1/3.

The Supreme Court rejected the first argument, saying that the express terms of the plan allowed recovery against the entire settlement amount.  The Court accepted the second argument on the theory that the plan did not address the allocation of attorney’s fees.  The Court held that the common fund doctrine applied in the absence of an express agreement.

The Supreme Court said that if a plan does not wish to bear the attorney’s fees, there is a way to avoid that.  They need to specifically state what if anything it will pay towards the cost of recovery.

Erisa Subrogation: Factors To Consider

In looking at ERISA subrogation issues, there are several factors that need to be kept in mind:

  • McCutchen was based on the assumption that the plan’s terms allowed a fiduciary of the plan to assert an equitable lien.  It turns out the U.S. Airways’ plan document did not contain a reimbursement provision.  This is critical.  Every plan must be carefully reviewed to determine that it has a reimbursement provision.  If there is no reimbursement provision, then there is no basis for an equitable lien.
  • The plan’s fiduciary must be the one that brings the lawsuit against the employee.  That plan’s fiduciary must be expressly identified within the plan documents.
  • The ERISA subrogation claim that is brought must be one to enforce a term within the plan.  If there is no reimbursement provision then there is no term to enforce.
  • The only relief that can be sought under ERISA is equitable relief.  Normally this equitable is in the form of a constructive trust or an equitable lien.  That trust or lien must be against particular funds or property in the employee’s possession.  If the plan seeks simply to impose personal liability on the employee, that is not allowed.  What is allowed is to seek a constructive trust or a lien against the specific funds.
  • ERISA only governs private insurance plans sponsored by the employer.  It does not govern individual health insurance plans.
  • Prior to filing suit you must obtain not only a summary plan description but also the plan document, trust agreement, the documents appointing any fiduciaries and any agreements between the plan and the insurance company.  The plan documents that you want are the ones in existence at the time that the medical benefits were paid as well as the current plan.

With all of those documents in hand, you can then do an analysis as to whether or not you have a basis for contesting any ERISA subrogation claims.

For more information on Personal Injury Claims, see the other pages on this site.

for more personal injury news and views visit, Brien Roche Law

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