Alabama Litigation Review

Alabama Litigation Review

Insights & Commentary on Developments in Alabama Litigation

Trucking Lobbyists Push To Relax Safety Rules

Posted in Personal Injury

According to a recent Salon article:

Big rig crashes kill nearly 4,000 Americans each year and injure more than 85,000. Since 2009, fatalities involving large trucks have increased 17 percent. Injuries have gone up 28 percent.

Salon then states the obvious assumption:

Given these numbers, you might expect Congress to be agitating for tighter controls on big rigs.

Instead, Congress is considering relaxing safety requirements. Lobbyist money is at the root of the proposed changes. I discussed these proposed safety rule changes in previous posts New Rules Risk Lives On The Highway and a later update.

What are some of the proposed changes pushed by trucking industry lobbyists? They include:

  • Allowing longer, double trailers
  • Raising weight limits for trailers loaded with cargo
  • Giving states permission to lower the minimum age of commercial drivers from 21 to 18
  • Eliminating some rest requirements for truckers who have worked long, consecutive shifts
  • Halting efforts to raise trucking liability insurance requirements from amounts set decades ago
  • Removing safety ratings of trucking firms from the internet (and public view)

These proposals are a terrible idea. If passed, they would put families at risk on our highways. Double trailers. Heavier loads. We have resolved two cases this year involving disabling personal injury where the truck driver was unable to stop or avoid collision because of his heavy load. In one of the cases, the truck driver had been cited on several prior occasions for operating his log truck at an excessive weight. Do we really want double trailers in the lane next to us on our highways? Do we really want heavier trucks that are unable to slow or stop in time to avoid a deadly collision? Of course not.

Eliminating rest requirements. For months, the severe personal injuries suffered by comedian Tracy Morgan and the death of his friend made national news. The resulting investigation revealed a truck driver too fatigued from far too many hours on the road. What happened to Tracy Morgan has become a daily occurrence on our highways. Yet, it should not be. I noted in my prior posts how a recent survey of truck drivers revealed half of them had fallen asleep at least once while driving in the prior year. Longer hours without mandatory rest creates an unacceptable danger on our highways.

Why should trucking companies using our road be allowed to hide their safety records? Trucking lobbyists not only want Congress to relax the rules, they also want the ability to hide the true records (and costs) created by a lack of safety. We recently deposed a truck driver who had negligently caused multiple collisions in a big rig. Each time, the company allowed him back into its truck. He was not disciplined. He was not reprimanded. He continued to drive until he collided with our client. That client now suffers permanent disability and chronic pain – from a driver who should not have been allowed back into a big rig. Instead of relaxing the rules, Congress should act responsibly in an effort to strengthen the rules and to make our highways safer.

Workers’ Compensation Opt Out Systems — A Return To The Jungle

Posted in Workers' Compensation

Our current workers’ compensation system is unfair and provides inadequate benefits to injured workers. Yet, it’s much better than the newest proposal pushed by corporate lobbyists – an opt out system.

Workers’ compensation protections are under constant threat from corporate lobbyists. One new threat is the opt out system enacted in Texas and Oklahoma. In that system, large companies can basically opt out of a state workers’ compensation system and write their own plans. In other words, employers can write their own rules. In practice, opt out systems allow arbitrary plans that do not value injured workers.

An opt out system is a return to the working wasteland of Upton Sinclair’s The Jungle where people are expendable. Like a line from the novel, people are given little value:

They had got the best out of him – they had worn him out, with their speeding-up and their carelessness, and now they had thrown him away.

This is where an opt out system will lead us. The authors of this system are now lobbying states beyond Texas and Oklahoma. Hopefully, we will never allow this system in Alabama. ProPublica explored the impact of opt out plans on working men and women suffering from work-related accidents and injuries. The real life stories detailed by ProPublica paint a disturbing picture.

What benefit changes can injured workers expect if employers write their own plans? Here are a few examples of harmful plan limits created by companies writing their own plans:

  1. Exclusions that eliminate specific injuries from coverage. For example, a large trucking company could write its plan to exclude injuries during the operation of a truck. Such an exclusion would leave workers without protection for the primary job-related accident or injury of that occupation.
  2. Rules that require specific and immediate notice of accidents and injuries. Many times, workers suffer an accident but don’t immediately realize the seriousness of the injury. This happens all the time in work-related accidents. And, most workers don’t want to file claims for every bump or bruise. Alabama law requires notice within a very short time but does not require immediate notice. Narrow notice rules could be used to bar claims where workers wait even a few hours. Arbitrary notice rules could also require multiple forms or other technicalities used unjustly to bar claims.
  3. Doctors that are hand-picked by employers and biased. Alabama law already allows the employer (through its workers’ comp insurer) to pick the doctor. However, the injured worker does have some limited ability to change physicians. And, the injured worker can often seek court help when treatment is needed. In an opt out system, employer plans could remove all worker rights over medical care.
  4. Decision-makers that are partial to the employer. In Alabama, trial courts decide disputed claims. That means real courts with real judges decide disputed injury and disability claims. Under an unlimited opt out system, an employer could write a plan that allows it to hand-pick the people deciding claims.
  5. Time limits that eliminate medical care. Unless state law provides protections, an opt out plan could expressly terminate medical care after some arbitrary period of time. An arbitrary cut-off could leave many injured workers without the care needed to heal and return to gainful employment.

Compensation for work-related accidents is important for working families and the communities in which they live. Our benefit system is under constant attack by large employers and insurance carriers who wish to shift the costs of injuries from themselves to impacted families and the government. It is important that we protect working families by preventing the expansion of an opt out system into Alabama.

New Anticoagulants Continue To Raise Safety Issues

Posted in Defective Products, Personal Injury

In September, I discussed new anticoagulants Xarelto and Eliquis. My prior post concludes by noting patients deserve drugs approved only after careful study for safety.

Shortly after that post, the ISMP Quarterwatch also raised issues concerning the safety of new anticoagulants rivaroxaban (Xarelto), dabigatron (Pradaxa), and apixaban (Eliquis). According to Quarterwatch:

The adverse event reports for oral anticoagulants confirm the evidence that long-term use remains one of the highest-risk drug treatments in older patients, with injury rates of 15-20% per year. As previously noted in this publication, bringing a new generation of oral anticoagulants to market based on ease of use rather than improved safety was a major wrong turn. In addition, two of the three novel anticoagulants have pharmacological profiles that raise questions about their simple, unmonitored dosing regimens.

The use of these drugs raises troubling health questions. Risks of personal injury or death due to uncontrolled bleeding, hemorrhaging, and stroke are serious. Because of these risks, adequate safety studies and clinical trials should have been completed before patients were given these medications.

Closing Medical Benefits — The New Normal In Workers’ Compensation?

Posted in Workers' Compensation

I recently attended a workers’ compensation seminar in Birmingham. Several speakers discussed the issues involved in closing medical benefits. Here is the backdrop — Injured workers in Alabama are entitled to medical treatment under our workers’ compensation laws. Can an injured worker agree to give up this right to medical care as part of a settlement? Yes, he can. The better question is — Why would an injured worker agree to give up such an important and guaranteed right? Closing medical benefits can raise many complicated issues for injured workers who receive (or may receive) important government benefits like Medicare.

The seminar was very informative. My problem is with the presumption expressed by the speakers that closing medical benefits was now the new normal. It should not be.

Do I ever recommend to clients that they close medical benefits? Yes, but only occasionally. Does the claim have issues that make success at trial unlikely? That’s when I might counsel a client to consider closing medical benefits in order to settle. If you have a good claim, the court must provide medical benefits. And, in that situation, you should be extremely hesitant to give up that right.

The new normal is this — too many lawyers take workers’ compensation cases with no intention or desire to fight for their clients at trial. Instead, these lawyers look for the quick settlement. That’s NOT in the best interest of injured workers. That’s NOT in the best interest of our communities who must now assume these obligations. Who benefits? The insurance companies benefit at the expense of taxpayers. Because this has now become the new normal, we now see employers and insurance carriers who expect any settlement to be conditioned upon the worker simply giving up medical rights. That’s wrong.

Last month, I had a worker’s compensation case set for trial against a big box retailer. In the weeks prior to trial, the retailer made a low offer conditioned upon closing medical benefits. The defense lawyer said his client no longer settles any cases unless the worker gives up all medical rights. So, we decided not to respond to the offer. We simply prepared for trial. The morning of trial, we were ready. And, our client kept her right to medical care while also getting the compensation she deserved under Alabama law.

My strongest criticism is for plaintiffs’ lawyers. Too many lawyers advertise for workers’ compensation cases yet are unwilling to do the difficult work of fighting for clients. Those lawyers have created the presumption medical rights will be given away. Those lawyers have harmed workers who genuinely need workers’ compensation benefits.

Invokana And The Risk Of Bone Fractures

Posted in Defective Products

Is Invokana (canagliflozin) a dangerous and defective drug? In a prior post, I discussed the history of Invokana and its link to ketoacidosis. Ketoacidosis can be a life-threatening condition caused by a build-up of acid in the blood.

Now, the FDA has issued a new Invokana safety warning. According to the new FDA safety alert:

  • Bone fractures have been seen in patients taking Invokana.
  • Fractures can occur as early as 12 weeks after starting the medication.
  • Invokana has also been linked to decreases in bone mineral density at the hip and lower spine.

Invokana is a relatively new drug. Yet, it has already been the subject of numerous adverse event reports. Diabetes is a serious health condition affecting many adults. With several treatment options, patients should carefully consider the health and safety risks of different medications. Do the significant risks outweigh any benefits of the drug? That is an important question for consumers considering Invokana as a treatment option. For consumers who may have already suffered a personal injury involving a condition possibly linked to the drug, it is important to investigate fully the issues which caused your damage.

Will The Alabama Legislature Close The Courthouse Doors?

Posted in Supreme Court of Alabama

As the Alabama Legislature prepares to start a second special session aimed at passing a budget, our system of justice remains in balance. Over the last few years, our Courts have faced deep cuts. Yet, the men and women who run our judicial system have worked extremely hard to keep open the doors to our courthouses. Their efforts are tremendous but go largely unnoticed by the public. For example, when Madison County lacked a sufficient number of judges several years ago, other judges from Jefferson County volunteered their time to help.

Will the Alabama Legislature pass a budget? If it does, will that budget allow our judicial system to function? These are big questions with big uncertainties. Judicial funding is a very important issue impacting all Alabamians. According to the Administrative Director of our courts —

We are at the breaking point right now.

A recent news clip discusses these issues. As the reporter details, Alabama’s court system is preparing for the worst while still hoping the legislature passes a workable budget.

As Alabama’s Legislature renews its budget debate, I would make two quick points —

  1. The courts are necessary for our communities. Businesses and individuals rely on our courts to resolve disputes. Families rely on our courts for protection. All of us rely on our courts to provide criminal justice.
  2. The courts generate significant revenue. These revenues are a benefit not just to our court system but to our state’s entire general fund.

I hope our legislators will act wisely and keep our court system open for justice.

First Pradaxa. Then Xarelto. Now Eliquis?

Posted in Defective Products, Personal Injury

Will Eliquis join Pradaxa and Xarelto as another anti-coagulant drug facing claims of severe internal bleeding? Pradaxa was the first of these three new anti-coagulants (blood thinners). It hit the market in 2010. Sales quickly boomed. However, adverse reports of severe internal hemorrhaging and bleeding soon followed. In May 2014, Pradaxa’s manufacturer settled about 4,000 cases involving patients who suffered tremendous bleeding issues from that dangerous and defective drug.

Xarelto was next. As I wrote in May of this year, investigative journalists have raised serious questions as to whether the clinical trials used to obtain FDA approval for Xarelto were tainted by misconduct. These issues cast serious doubt over the drug. Severe personal injuries associated with Xarelto include:

  • Death due Uncontrolled Bleeding
  • Hemorrhaging
  • Stroke
  • Gastrointestinal Bleeding

In 2012, Pfizer and Bristol-Myers Squibb introduced the newest drug in the class, Eliquis. Despite being a recent drug, Eliquis already faces growing concerns over adverse and uncontrollable bleeding risks. The risk of bleeding is especially troubling with these three anti-coagulants since the drugs lack an effective antidote. An Eliquis patient in Alabama recently filed suit after suffering an intracranial hemorrhage. That case also alleges the clinical trials for Eliquis were tainted by misconduct.

We have continued to follow the research carefully on both Xarelto and Eliquis. The potential harm of these drugs raises serious issues. Patients deserve safe drugs approved only after careful study and accurate clinical trials.

The Forgotten Bargain That Was Our Workers’ Compensation System

Posted in Workers' Compensation

A few years ago, The Center for Justice & Democracy (CJ&D) published a post titled Snapshot of Justice: The Failure of Workers’ Compensation. The post begins by stating —

When a worker is hurt, workers’ compensation is the exclusive remedy against an employer.

This is an important opening statement. When workers’ compensation systems were first created, the concept was seen as a bargain benefiting both employers and employees. Employers gained protections from lawsuits (with potentially huge damages) in the event company or co-employee negligence caused the injury. Employees gained basic medical care (promoting rehabilitation and the return to work) and important disability benefits.

Yet, in the last few decades, this bargain has been forgotten. Slowly, workers have seen basic benefits erode. The CJ&D post made four significant points demonstrating how workers have slowly lost workers’ compensation benefits. Here are the post’s four points (in bold) with my comments following:

  • Chipping away at already meager compensation. From the beginning, workers’ compensation systems did not fully compensate workers for injuries. These systems generally did not provide benefits for pain, suffering, or other tremendous losses due to injury. Yet, important benefits were provided — medical care, rehabilitation, a small percentage of wage losses for disability. The goal was to treat and return employees to work if possible. If not possible, a minimal level of benefits would be provided. However, in many states, recent laws have reduced these benefits. In Alabama, our appellate courts have also restricted the benefits available to disabled workers. Unfortunately, many attorneys accept workers’ compensation claims without truly understanding the benefits available to their clients. The lack of competent legal representation can further shortchange injured workers needing basic benefits.
  • The fraud of worker fraud. The CJ&D post discusses the false campaign by insurance companies over the last twenty years to create issues of employee fraud. In reality, employee fraud is minimal. Overwhelmingly, most fraud is committed by employers as reports clearly show. In my practice, I routinely face insurance carriers which deny claims based on false reasons or file multiple frivolous defenses to avoid paying basic benefits.
  • System costs. The system should efficiently provide medical and disability benefits. Yet, it does not. In Alabama, the employer (meaning its insurance carrier) picks the authorized doctor. Sometimes, insurance carriers pick doctors they know will not treat injuries. When the doctor does recommend treatment, the insurance carrier will often use administrative procedures to delay or deny care. This results in significant costs to workers. It also results in additional administrative costs to doctors. That’s just the beginning. When the claim is disputed, the worker must resort to a judicial system that creates more needless costs. Instead of efficiency, the system now has administrative and judicial procedures delaying needed benefits. This gives insurance companies a huge advantage at the expense of injured workers and their families. Because of administrative and judicial hurdles, it is important injured workers consult legal counsel with expertise in this area of law.
  • Safety. This is a subject I’ve discussed many times. Safety is a one-way street in workers’ compensation. That’s wrong. If an employee intentionally breaks safety rules, he can be denied benefits. What if the employer neglects safety? An unsafe employer faces no additional workers’ compensation penalties or costs in Alabama. And, because the system is designed to pay workers only a percentage of losses, the employer never faces the true costs of an injury.

A system designed to benefit both employers and injured employees has lost balance. Increasingly, the system neglects injured workers. Increasingly, employers and insurance carriers shift the costs of injury and disability to families and government. That’s wrong. It harms workers, their families, and all of us.

Medicare Reimbursement And Wrongful Death In Alabama

Posted in Personal Injury

Subrogation. Reimbursement. What do these concepts mean for personal injury cases? At its most basic, these concepts mean your health insurance carrier (or government plan) has certain rights to be “paid back” if you win or settle your case. While it sounds simple, the issues can be complex. And, an understanding of the rules can make a huge difference in your case.

Yet, many attorneys do not fully understand these issues. Some of these attorneys even advertise for personal injury cases. Their clients can pay a big price for that lack of understanding.

Case in point — A local attorney was recently discussing a wrongful death case he settled. During the discussion, he mentioned his reimbursement to Medicare for medical bills it paid. I wish we could have spoken before he settled. He could have saved his client that money.

In Alabama, wrongful death claims are very different from normal personal injury claims. If a lawsuit is only filed after a person’s death in Alabama, our law only allows punitive damages. Our law does not allow compensatory damages, which includes recovery for medical costs, for wrongful death. Since a wrongful death claim does not involve a recovery for medical costs, you should not be required to “pay back” the health insurance company or plan.

Medicare must consider what damages are actually recoverable under state law. That is the current law. I addressed this issue in a prior post titled A Federal Court Limits Medicare’s Reimbursement Rights. The local attorney relating his recent wrongful death settlement was not alone in his lack of understanding. If he had understood these issues, his client’s settlement would have been much better.

Falls From Heights — A Deadly Workplace Hazard That Is Easily Preventable

Posted in Personal Injury, Workers' Compensation

Falls from heights are a leading cause of death and disability on construction sites. According to OSHA, falls cause one-third (1/3) of all construction-related deaths. Workers who survive long falls are often left with a lifetime of chronic pain and disability. In my practice, I’ve had numerous clients who suffered severe injury from falls on construction or industrial sites. I’ve seen many types of falls from heights. Yet, one piece of equipment has been involved in far too many disabling falls — The Scissors Lift.

Image by Smial

A young man died when 50 mile per hour winds toppled the extended lift from which he was working. The death was easily preventable with just a little safety planning. No worker should be required to use a lift outside in bad weather. Too often, deaths like this one go unmentioned. This time, the event made national news. It involved a college student working for the athletic department of a major university. What are a few easily preventable scissors lift falls I’ve seen as an attorney?

  • Case Number 1:  The scene was a large construction project on Redstone Arsenal in Huntsville. The contractor was using extended, moving scissors lifts to erect the metal ceiling. A lift toppled because the concrete floor below was uneven. The worker fell almost 30 feet. He survived but was left permanently and totally disabled. The accident could have easily been prevented. Yet, the safe use of lifts was never addressed prior to the fall.
  • Case Number 2:  Two electrical workers were required to use an extended scissors lift while installing wiring in the ceiling of an industrial plant in Decatur, Alabama. The two workers notified management and asked that nearby moving equipment be stopped and secured. Management at the plant chose not to stop or lockout nearby equipment. A crane struck the lift sending the men to the floor below. Both suffered tremendous injuries requiring multiple surgeries. One of the workers was left totally disabled.
  • Case Number 3:  A worker was required to use a scissors lift while dismantling an old industrial facility. While working in the ceiling from the extended lift, a fire suddenly occurred around him. Yet, the lift was stuck in position. And, the fire extinguisher had been removed. The worker faced a bad choice – jump or risk being burned in the fire. He jumped from 15 feet in the air. He suffered injuries to his back and legs requiring several surgeries.

All these injuries were easily preventable by management. The solution starts with an Activity Hazard Analysis. What is an activity hazard analysis? It’s a simple process to evaluate the work for safety before putting your workers in potential harm. And, it’s a simple process that every company should perform before starting specific tasks, before using machinery, or before putting workers in a difficult position. It’s a process that would have identified the hazard in every case I mentioned BEFORE the injuries occurred. A little advance safety planning can prevent needless deaths, injuries, and claims.