Distracted Driving and its Consequences

It’s past your lunchtime, and you haven’t eaten, and yet have been driving from appointment to appointment. You attempt to keep sane by looking for a good song on the radio and fitting in a little fast food while you try to make it to your next meeting. Your cell phone rings, or beeps with an app notification. Your intent is to drive safely, courteously and in a law-abiding fashion, but each of these distractions have the potential to cause an accident.

Even with the best intentions – any distraction, no matter how small, can impact our safety and those around us.

As is taught in drivers’ education classes, driving requires multiple skills… Attention, Focus, Coordination, and Quick Decision-Making.  And each of these can become compromised if a driver becomes the slightest bit distracted — making it a higher risk for being involved in a car accident. Distracted driving is extremely dangerous. Every year distracted drivers cause thousands of accidents on our roads and highways.

According to the Occupational Safety and Health Administration (OSHA):

People under the age of 20 are involved in more fatal crashes caused by distractions than any other age group and when a driver talks on a cell phone, reaction time is delayed in the same way as if the driver were drunk.

One problem is that many drivers don’t consider themselves distracted while driving. People, and especially seasoned drivers, assume that they can multi-task without losing concentration. This may be true outside the vehicle, but changes immediately once a person gets behind the wheel. Drivers must remain focused and ready to respond to the actions of other drivers, road conditions, and unforeseen circumstances. The National Highway Traffic Safety Administration (NHTSA) estimates that the average text pulls the driver’s eyes away from the road for five seconds. At 55 miles an hour, a car will travel the length of a football field in that time.

So what exactly is distracted driving?

According to the CDC there are three main types of distraction:

Visual: taking your eyes off the road;

Manual: taking your hands off the wheel; and

Cognitive: taking your mind off of driving.

It is defined as any activity that occurs while operating a motor vehicle that could divert a person’s focus away from the essential task of driving. This results in risky behavior that endangers the lives of drivers, their passengers, other drivers and pedestrians. Distracted driving includes the following actions:

  • Talking to or reacting to other passengers in the car
  • Adjusting the music, such as a radio, CD player, or MP3 player
  • Eating or drinking while driving
  • Making or receiving phone calls
  • Texting or reading a text
  • Putting on lipstick, applying make-up, fixing your hair or shaving
  • Using a map and navigation apps on their phones.

The CDC also reports that drivers most at risk tend to be young adults and teen drivers. “Drivers under the age of 20 have the highest proportion of distraction-related fatal crashes.”

Texting while driving is the most dangerous distracted driving activity because it combines all three types of driving distraction (visual, manual and cognitive).

In Virginia, it is illegal to text while driving. And if you are under the age of 18, it is illegal to use your phone at all while driving.

Studies conducted by the National Highway Traffic Safety Administration demonstrate a direct relationship between driver inattention and automobile accidents. Just glancing away from the roadway for more than two seconds can double your risk of a crash or near crash. Engaging in more complex visual or manual tasks while driving can raise that risk even higher. 

Everyone knows that drinking and driving is wrong, but very few people have a full understanding of how focusing on other activities while driving is equally as dangerous. Talking on the phone, texting, fixing makeup in the mirror, adjusting music on the radio, eating and drinking, and talking to passengers in the car also put drivers and passengers at risk for potential accidents.

According to AAA, federal estimates suggest that distraction contributes to 16% of all fatal crashes, leading to around 5,000 deaths every year.   Latest research has discovered that distraction “latency” lasts an average of 27 seconds, meaning that, even after drivers put down the phone or stop fiddling with the navigation system, drivers aren’t fully engaged with the driving task.

Education is key. One of the best ways to end distracted driving is to make people aware of the dangers.  By improving our understanding of how mental and physical distractions impair drivers and by educating the public about avoiding distractions, we can eliminate these needless deaths.

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Canagliflozin (Invokana, Invokamet): Drug Safety Update – Increased Risk of Leg and Foot Amputations

Invokana, Invokamet, Invokamet XR, Canagliflozin Related Injuries

On May 16, 2017, the FDA concluded that the Type 2 diabetes medication Canagliflozin (Invokana, Invokamet and Invokamet XR) causes an increased risk of leg and foot amputations. The FDA now requires the most prominent black Boxed Warning to be added to the Canagliflozin drug labels describing this risk. Two large clinical trials concluded that leg and foot amputations occurred about twice as often in patients treated with Canagliflozin versus those patients treated with a placebo.

Duncan Garnett is actively investigating Canagliflozin cases on behalf of patients across the nation who have suffered an amputation as a result of taking the popular diabetes drug.

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More Hip Failures

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MULTI-DISTRICT LITIGATION OF FEDERAL PINNACLE HIP REPLACEMENT LAWSUITS LIKELY

Plaintiff Motions have been filed and DePuy has agreed to a Multi-District Litigation (MDL) for the purposes of pretrial discovery in the Federal Pinnacle Hip Replacement Device lawsuits.

To date, the FDA has received more than 1300 negative reports on the Pinnacle. Like the DePuy ASR hip replacement, some Pinnacle hip replacements may cause metal fragments to flake off and embed in the surrounding tissue of the recipient causing metal poisoning.

If you have had a DePuy Pinnacle Hip Replacement, call us for a free legal consultation.

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Nursing Homes and the Fine Print

If you have a credit card, rented a car or entered into practically any kind of consumer contract, then chances are you have bargained away the freedom to have any future dispute decided in a public court of law before a judge. You have bargained away the freedom to have any future dispute heard by a jury and you have bargained away the right to appeal a bad decision. In the fine print of your consumer contract, you have likely agreed instead to mandatory pre-dispute binding arbitration by a professional arbitrator. These clauses involve various procedures but often, an arbitrator selected by the company decides the dispute.

Rules of evidence are relaxed, exchange of information and evidence is limited, substantial time limits are imposed and often there is no review of the decision. Some contracts require you to share in the cost of the process including payment of the arbitrator’s fees. Although some businesses are beginning to question whether arbitration really does save money and time,most companies seem to believe that mandatory arbitration keeps legal costs down. Most consumer advocates believe that the only level playing field is provided by the courts. More and more frequently these arbitration clauses are being slipped into nursing home agreements. Some believe that nursing home corporations use these mandatory arbitration clauses as a way of avoiding responsibility for any future negligence causing injury or death to a resident.

Very often the decision to place a family member into a nursing home is an urgent one and stressful. Anxious seniors or their families often sign every document put before them without thorough a examination of them. Oftentimes neither the resident nor the family have any idea that they have contracted away the right to bring a civil action in the event the resident is neglected or mistreated.However, while some nursing homes require the execution of a mandatory pre-dispute arbitration agreement, not all of them do yet. It is essential to understand the full impact of these clauses and to question whether the arbitration clause has to be signed. If bargaining away the right to trial in a public court with a jury is required by the nursing home as a prerequisite to admission, perhaps another facility should be considered. Perhaps a facility confident of its ability to care for the elderly without eliminating in advance any opportunity to seek justice in court in the event of neglect or mistreatment,would provide better care and greater peace of mind. Before admitting a vulnerable loved one to a nursing home, you might want to consider whether it is wise to bargain away these principles of freedom.

“In suits, between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people.” –Virginia Bill of Rights DISCLAIMER: This article is provided for informational purposes only and does not constitute legal advice. Duncan Garnett is a partner with Patten, Wornom, Hatten & Diamonstein, L.C. His practice is focused on the representation of individuals and families who suffer life altering injuries as a result of negligence. He can be reached at 757-223-4550 or dgarnett@pwhd.com. First published in The Oyster Pointer

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Nursing Homes: A Frank Discussion

The government estimates that at least 70 percent of people over age 65 will require some long term care services at some point in their lives. For many, that long term care will be as a resident in a nursing home. This brief article will note some of what to look for in selecting a nursing home, some of what to watch for when visiting and care giving in the nursing home and some of what can be done if we suspect neglect.Many time the need to admit a patient to a nursing home occurs suddenly. Helpful information is immediately available at the Medicare Nursing Home Quality Compare website at http://www.medicare.gov/NHCCompare.

The Area Agencies on Aging assist people over age 50 and caregivers with community services including long term care choices. Nursing home recommendations from friends, physicians, clergy, and others with experience are helpful. One should consider the quality of life and the quality of care. Quality of life has to do essentially with dignity. Does the culture of the nursing home reflect a concern for honoring the individuality of the resident? How does the facility make certain that the environment is safe, clean and comfortable? Does the facility have the will and the means to provide for personal grooming and dress? How are visitation rights maintained and encouraged? Are provisions made both to provide a sense of personal privacy as well as opportunity for the resident to choose to participate in creative activities?

This is not only a matter of culture. The nursing home should be able to tell you the number of direct care staff it has on each shift, on weekends, and on holidays. Determine how long the Medical and Nursing Directors have been with the facility. An understaffed nursing home is stressful place for good people to work. A high turnover of personnel is common and alarming. A turnover of Medical or Nursing Directors may be an indictor of systemic problems.

There is a relationship between quality of life, quality of care issues and the staff to resident ratio. Does the nursing home have enough competent staff to answer call lights, turn the disabled resident to prevent sores, and attend to the dressing and toileting needs? Is there sufficient staff to provide the necessary security for the residents?Understaffing commonly results in preventable neglect such as medication errors, malnutrition, dehydration, pressure ulcers, falls and even physical assaults. Falls can result in immobilizing fractures and cause rapid decline in overall health and even death. Pressure ulcers result from leaving the resident in the same position without proper turning. These preventable sores cause pain, infection and sometimes serious overall deterioration.

Other signs of neglect may include unexplained weight loss, dehydration, unsatisfactory hygiene, improper dress and soiled bedding.Sometimes the best test of the level of care provided by the nursing home is as simple as the sniff test. If the facility has a strong offensive odor, it is likely understaffed and the residents are neglected.The residents or caregiver should get copies of the health inspection reports. The facility should have a report of the most recent state survey available for you to review. Insist on reading it.
If inquiries of the Medical Director are not satisfactory, a complaint may be filed with the Virginia Health Department. Information is available at http://www.vdh.virginia.gov/olc/complaint. Usually, an investigator will make an unannounced inspection of the family, review the medical records and interview the staff. The findings will be sent to you.Sometimes a family has no choice but to file a lawsuit against the facility. If the resident is competent, it can be filed in his name.Otherwise, it must be filed by the appointed guardian, power of attorney or in a death case, by the administrator of the estate. Generally, in Virginia the action must be broughtwithin two years of the injury. If the facility is government owned there are stringent notice of claim requirements which in some cases must be made within six months.The care of the elderly has changed dramatically and we owe a debt of gratitude to those dedicated individuals, doctors, nurses, CNAs and others who work for the aged. However, some nursing homes have become big, bottom line oriented, often multi-­‐state businesses.

Our responsibilities as we grow older or as we provide care have not changed. Eachof us must insist that proper care be provided, that contracts be honored, and that negligent care not be tolerated.Duncan Garnett is a civil trial lawyer, partner at Patten, Wornon, Hatten & Diamonstein, L.C. and former President of the Virginia Trial Lawyers Association. He concentrates his practice on life-­‐altering personal injury and wrongful death, and handles a wide variety of civil litigation.

Mr. Garnett can be reached at (757-223-­4550)or dgarnett@pwhd.com

First published in The Oyster Pointer.

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The Hip Replacement Controversy

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Several thousand lawsuits have been filed by people who have either had a hip implant replaced or will need to have one replaced in the future. Most claims involve the DePuy Orthopaedics metal‐on-­metal (MoM) ASR and the DePuy Pinnacle, but there are similar suits filed against other MoM manufactures. DePuy is a subsidiary of Johnson & Johnson. Hundreds of people in Tidewater have had those hips implanted in their body. The physicians who performed the surgeries are not defendants. Some believe that the surgeons have been left to deal with the effects of a recalled product that was marketed and promoted as state­‐of‐the art. One group of local orthopaedic surgeons has sued DePuy and Johnson & Johnson alleging essentially that the ASR MoM hip implant is defective and that DePuy provided misleading promotional literature to the patients andto the physicians.
The newer metal-­on-­metal products came on the market in the early 2000’s. Until that time ceramic-­on-­ceramic and metal­‐on‐polyethylene implants were the products of choice. However, the MoM hip implant was touted to surgeons as being more durable and better for an active, longer-­living population.
Because the MoM implant was supposedly an updated version of a previously­‐approved implant it was represented to the FDA as a “substantially equivalent” product. This allowed the product to be put on the market without going through the normal clinical testing and investigative process.Some of these products do not perform as represented and, in fact, present certain dangers to the men and especially to the women who have the allegedly defective hip implanted in their bodies.These dangers include a higher rate of implant failure involving loosening, dislocations and fractures of the bone around the implant. Friction of the metal‐on‐metal parts causes toxic metal shavings to be released into the tissue surrounding the implant site. This metal debris contains cobalt and chromium which can cause metallosis.
Symptoms of metallosis include groin or thigh pain, spontaneous dislocation of the implant, stained and necrotic (dead) muscle and tissue, the formation of painful masses (pseudotumors) and bone loss. These conditions make revision surgery more difficult and recovery more problematic. Importantly, some patients have no pain even though they suffer higher than normal cobalt and chromium levels.The FDA began receiving complaints about certain MoM hip implants soon after they went on the market. In fact, some patients were having revisions surgery within one year of the implant. Surgeons were finding extensive necrotic tissue and fluid build up.
An early report noted that debridement of dead tissue from the patient required more than an hour and multiple biopsies. These early findings are consistent with the operative reports we are reviewing for our clients. Most failures are occurring from three to five years from the implant date.In August 2010 DePuy “voluntarily” recalled one of their best selling models in the United States. DePuy had already withdrawn it from the market in Australia and Great Britain. In the United States, Depuy’s letter to physicians accompanying the Recall Notice recommends yearly follow-­up appointments whether the patient is experiencing symptoms or not. It notes that blood test and imaging tests may be appropriate.
Although DePuy still maintains that it is only “phasing out” this hip implant, it has offered to reimburse revision patients for certain expenses after payment by health insurance or Medicare. These expenses are just the tip of the iceberg. We have clients who have endured multiple hip implant revisions and still suffer significant pain and loss of mobility.Persons with MoM hip implant should see their orthopaedic surgeon and ask about blood testing for cobalt and chromium and about revision surgery. They should seek a second opinion if they continue to have problems or are uncomfortable with the advice.It is critical that patients understand that there is a very limited time in which to take legal action against the manufacture of a defective hip implant because of the peculiar Virginia statute of limitations. Thus statue may be running out even though the patient is not yet feeling any symptoms of hip replacement failures.
Thomas Joyce, a biomedical professor in Great Britain, termed this recall, “[T]he biggest disaster in the history of orthopaedics.” Indeed, some believe that the current litigation is only the beginning as more and more MoM hip implants fail and the long‐term effect of elevated blood levels of chromium and cobalt becomes better understood.
Duncan Garnett is former President of the Virginia Trial Lawyers Association and a Partner at Patten, Wornom, Hatten & Diamonstein, L.C. He is currently involved in the national hip litigation.

First published in The Oyster Pointer.

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Lawsuits and Root Canals: Business and the Courtroom

Just as a root canal is unpleasant but sometimes necessary for good health, so too is litigation unpleasant but sometimes necessary for the continued good health of your business. If you are on top of your business you will get your lawyer involved as soon as you sense trouble. However, your typical business lawyer’s retainer agreement will be hourly based. It will likely establish the hourly rate for the senior partners, the junior partners, the associates and the paralegal assigned to your case.

Chances are, burdened by the mind numbing prospect of a lawsuit, the interruption of your business, the lost opportunity cost and the distraction of it all, you will marvel at these hourly rates. You will be dimly aware that the more hours your lawyer works, the more money it will cost you. You may comprehend that the sooner the case is over, the less money your lawyer will make. You will sign the retainer agreement anyway,believing you have no choice.

At the end of the month you will receive a bill from your lawyer which will charge you by the quarter hour.You will see that the senior partner at $600 an hour made some five minute telephone calls at $150 each, the junior partner at $225 an hour spent three hours preparing to interview witnesses at a cost of $675 and the associate at $175 an hour spent eighteen hours drafting motions for $3,150 and the paralegal did a lot of case management, editing and miscellaneous stuff at $125 an hour for twenty hours or $2,500. The senior partner will likely pen a cheery note to the bill saying that you are off to a good start, that the legal issues are being sorted out and she may even tell you of the many expensive motions already filed and to be filed over the next many months.

She hopes to have someone actually talk to witnesses soon. This is what you get when you indulge in the dated, inefficient and unimaginative practice of paying a lawyer by the hour to “quickly” solve your legal problem. Plaintiff’s trial lawyers do not charge by the hour. They charge on a contingency fee basis. This is results based billing. Contingency fee billing requires the lawyer to carefully examine the merits of the case before accepting it and encourages both the lawyer and the client to clearly assess the “value” of the legal service to be provided before spending a penny.

The contingency fee encourages efficiency and results. The hourly fee encourages a focus on the process of the case rather than on the successful and speedy conclusion of the case. The hourly fee rewards the “work”of the case. The contingency fee rewards only the results obtained.A contingency fee will not always work for business litigation. However, a good business person and a good lawyer ought to be able to craft an alternative to the tired old, same old of hourly billing. Some other retainer agreements may include combinations of a more affordable reduced hourly rate plus a contingency, whereby the lawyer receives some cash flow during the pendency
of the case but ultimately only profits based on the result achieved. A combination of flat rate and contingency may be appropriate to a particular case. Sadly, clients and hourly lawyers often enter into an hourly fee arrangement when they only have a general notion of what the case will involve, how long it will take to conclude, what resources will be required and what result can be reasonably anticipated.By contrast, before a trial lawyer accepts a contingency or combination fee, she must judge the merit of the case, predict the scope of the effort, determine a plan which achieves real value for the client and work as efficiently as possible.

Business litigation is sometimes necessary. Paying a litigator by the hour only encourages the prolongation of the misery by rewarding inefficiency of thought and action. There is nothing creative about hourly billing. When your business is faced with the prospect of bringing or defending a lawsuit, get creative about the process and expect no less from your lawyer.A good business keeps up with change, creates change, or dies.When faced with a matter that may go to court, change the old way of thinking and take control by consulting a contingency fee trial lawyer.

Duncan Garnett is a senior partner atPatten, Wornom, Hatten & Diamonstein, L.C. and a former president of the Virginia Trial Lawyers Association. While he concentrates his practice on life-altering personal injury and wrongful death, he also handles a wide variety of civil trials.

First published in The Oyster Pointer.

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