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A recent decision in a Jefferson County, Pennsylvania Court should provide a strong wake up call to personal injury plaintiffs who are on social network sites such as Facebook and MySpace. The case, McMIllen v. Hummingbird Speedway, Inc.,, involves a stock car racer who claimed that he was permanently injured when his car was rear ended in a stock car race in July of 2007. The defendants that he sued reviewed the public section of McMillen’s Facebook account and found that he had commented on a recent fishing trip and attendance at a Daytona 500 race. They then requested that the Court order Mr. McMillen to provide user names and passwords for his Facebook and MySpace accounts. They did this, of course, so that they could access wall posts, photos and other non-public information to determine if these entries contradicted his claims of being permanently impaired and unable to enjoy his usual activities as a result of the July, 2007 accident.

McMillen’s attorneys fought the request by the defendants, claiming that McMillen had a right to privacy with regard to his Facebook and MySpace accounts which would be violated if the Court ordered the disclosure requested by the defendants. In response, the Court reviewed what is privileged information under Pennsylvania statutes, and noted that the only inviolable privileges include those against self incrimination under the 5th Amendment of the Constitution and the attorney-client privilege. Pointedly, the Court noted that there is no “social network site privilege”. It also declared that the purpose of the social network sites is to connect with friends and meet new people, and that it would be “unrealistic to expect that [such] disclosures would be considered confidential.” Additionally, the Court reviewed the privacy policies of both Facebook and MySpace, and found that they clearly envision a scenario in which these sites would divulge information directly in response to judicial requests: For example, Facebook’s policies state that: “Users are informed that Facebook’s operators may disclose information pursuant to subpoenas, court orders, or other civil and criminal requests if they have a good faith belief that the law requires them to respond.”

In summary, the Court in McMillen ordered that the plaintiff has to provide his user name, log in and password so that the defendants’ lawyers could access his Facebook and MySpace accounts to determine if in fact he was engaging in activities which would contradict his claims of permanent injury and limitation of his previously actively lifestyle. It may have been that the fishing trip and trip to Daytona were aberrations and that Mr. McMillen is in fact permanently disabled from his July, 2007 accident. However, the moral of this story is that if you are involved in a personal injury case, the wisest course of action is to avoid posting information, photographs and other entries on your Facebook and other social media accounts which might later be used against you to contradict your claims of injury.

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In a study published in the Accident Analysis and Prevention journal, it was reported that teen drivers are involved in four times as many fatal car crashes as adult motorists. Researchers reviewed data regarding 800 accidents with teen drivers and determined the three most common errors which were responsible for almost half of all the serious crashes:

1. A lack of scanning to find hazards, which led to 21% of the accidents;
2. Driving too fast for the traffic conditions, resulting in 21% of the crashes; and

3. Distracted driving (with text messaging a substantial percentage), leading to 20% of the accidents.

Surprisingly, factors including poor weather, vehicle malfunction, aggressive driving and drowsy driving were not found to be significant factors in most of the car accidents which were analyzed. According to the authors of the study, scanning surroundings far in front of the car and from side to side is a higher level skill that more seasoned drivers develop over many years.

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Earlier this month, the New York State Senate voted in favor of a law which would strengthen New York’s texting while driving ban. Presently, texting while driving is a secondary violation, meaning that in order for a ticket to be issued, the police officer must first observe the motorist commit a separate driving infraction, such as speeding or passing a traffic control device. Under the Senate version, which was promoted by Senator Fuschillo, Chairman of the Senate Transportation Committee, texting while driving would become a primary offense.

Distracted driving has become a major safety issue across the United States, and texting while driving is a large part of this problem, with the major increase in text messaging as a means of communication. In a study by the Virginia Tech Transportation Institute, it was found that a motorist is 23 times more likely to have an accident while text messaging. The American Automobile Association (AAA) has reported that any activity which diverts a driver’s attention from the road for more than 2 seconds can double the risk of an accident. John Corlett, the AAA Legislative Committee chair noted that “

The secondary nature of the current New York State law dilutes its deterrence value…there is overwhelming public consensus on the unique threat of text-messaging while driving…

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The Senate bill has now been sent to the New York State Assembly, which has in the past been supportive of a primary texting while driving prohibition. We will monitor the progress of this legislation and report on any major developments.

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There was an interesting article by Jane Brody in the New York Times on April 12, 2011 regarding distracted driving. Tragic stories of devastating injuries and fatal accidents due to distracted drivers are discussed, certainly a fear of all drivers and particularly those with teenage children closing in on obtaining their driver’s licenses and learning permits. In my experience, texting while driving seems to be more prevalent than ever despite efforts by the New York State DMV to increase the penalties for the infraction, which would include enhanced fines and points for what previously has been a “no-points” ticket.

The U.S Transportation Secretary, Ray LaHood, introduced a website named “Faces Of Distracted Driving” at distraction.gov/faces which gives examples of fatal accidents suffered by innocent victims of those who attempt to drive while texting, shaving, applying mascara or tending to their children, for example. According to the National Safety Council, 1.6 million accidents are caused annually by drivers using cell phones or texting, which is 28% of the total accidents. The articles also cites the National Highway Traffic Safety Administration (NHTSA) report in 2008 that 1 of 6 fatal car crashes in 2008 was due to distracted driving,
I found it very enlightening that a University of Utah study suggests that even conversations with hands free phones are just as distracting as hand held conversations, because the drivers become caught up in their conversations, resulting in “inattention blindness.” Dr. Berry, a professor of orthopedics at the Mayo Clinic College of Medicine in Rochester, Minnesota was quoted as saying: “Just the act of being on the phone distracts you from the task at hand–driving…your mind is somewhere else. It’s not in the car. You’re driving mechanically but not seeing the same way. It’s different from conversing with someone in the car.” Having been in numerous serious conservations on the bluetooth in my own vehicle, there is definitely some truth to Dr. Berry’s words.

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I recently read an article in Bloomberg online which confirms what most personal injury and medical malpractice attorneys know to be true: hospital errors are vastly underreported, with a federal study finding that a full 90% of patient injuries are not recorded. The most common injuries are pressure sores and infections following surgery, according to the U.S. Agency For Healthcare Research and Quality, which analyzed 354 “adverse events”, including bloodstream infections, medication errors and pressure sores. The data was taken from 3 U.S teaching hospitals, which remain anonymous due to patient confidentiality issues.

The adverse events happened during 33% of admissions at the hospitals, using reviews of 795 patient records by nurses, pharmacists and physicians. No effort was made in the study to determine if the errors could have been averted.

In a 1999 study by the U.S. Institute of Medicine, it was determined that 98,000 deaths and more than one million injuries were due to medical errors. In a 2008 study by the Seattle consulting firm Milliman Inc., which reviewed hospital claims from 2001 through 2008, they found that these errors cost the 17.1 billion by 2008, and identified 564,000 injuries to patients in U.S. hospitals and 1.8 million injuries to patients treated at outpatient facilities.

Closer to home, considering these eye opening statistics, this writer is thrilled that Governor Andrew Cuomo failed in his efforts (at least for this year) to cap at $250,000 all medical malpractice awards in New York State, which he had inserted in his 2011 budget (as a clear gift to very well paid insurance companies and hospital administrators) but gave up in negotiations with the Assembly and NY Senate two weeks ago.

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According to a report published in the Journal News on April 10, 1011, approximately 15% of motorcoach carriers in New York State have been cited for safety problems over the last 20 years. Of the five issues that are examined by the Federal Motor Carrier Safety Administration (FMCSA), the most common issues are fatigued driving and driver fitness. The other three areas which the FMCSA looks at are vehicle maintenance, unsafe driving and controlled substances/alcohol. When a motorcoach carrier is found to have a safety violation, they are issued an alert. The report establishes that of the 386 carriers in New York, 56 companies were issued an alert, or 14.5 %, with 31 alerts issued for fatigued driving and 17 for driver fitness.

The enhanced attention comes after the two fatal accidents involving buses last month, including the March 12 accident on I-95 which killed 15 and injured 17 seriously, and the March 14 accident on the New Jersey Turnpike which killed two, including the driver. Nationwide, approximately 12% of carriers have received an alert. The Federal Transportation Safety Board, which has no regulatory authority to implement its recommendations, alleges that its’ recommendations have not been followed by either the National Highway Traffic Safety Administration (NHTSA) or the FMCSA. The recommendations were, among others, to: install electronic onboard data recorders; design stronger bus roofs and windows to prevent passengers from being ejected in a rollover crash; and more stringent vehicle inspections.

In March, New York Senators Gillibrand and Schumer sponsored legislation, long overdue, which would require seat belts for all passengers; more driver training; stronger roofs; anti-eject windows; tougher vehicle inspections and medical exams for drivers. With the conservative and pro-business environment that prevails in the Senate in 2011, this writer has serious doubts as to whether such common sense measures will be implemented.

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A recent study by the National Highway Traffic Safety Administration (NHTSA) indicates that traffic deaths decreased to an all time low in 2010, in which 32,788 people were killed in auto crashes, a 3 % decrease from 2009. The drop in fatalities was surprising in light of the fact that there was an estimated increase of 20.5 billion miles driven in 2010.

There was also a decrease in the fatality rate, (calculated as deaths per 100 million miles driven) from 1.13 in ’09 to 1.09 in 2010, the smallest fatality rate since the U.S. began recording this information in 1949. Traffic deaths have also dropped a full 25% since 2005, but the NHTSA has not yet determined the explanation for the significant decrease. What makes the drop so surprising is that distracted driving certainly seems to be on the increase, due to the huge increase in motorists testing while driving, speaking on their cell phones, adjusting GPS devices and attempting to multi-task in our increasingly fast moving society.

Without question, safer cars and more prevalent use of seat belts and the increase in the manufacture of cars with front and side air bags is certainly a factor in the drop.

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An investigation by the National Transportation Safety Board (NTSB) has determined that the casino tour bus involved in the March 12, 2011 fatal bus accident that killed 15 passengers was traveling at speeds of up to 78 m.p.h., more than 20 miles per hour over the speed limit. Investigators also determined that despite the bus driver’s claims to the contrary, there was no evidence that a tractor-trailer had come into contact with the bus, causing the driver to lose control. The tragic accident, in which the bus struck a road stanchion and split in 2, killed 15 passengers returning from a gambling trip to the Mohegan Sun Casino in Connecticut, and caused several passengers to be hospitalized for a week after the crash, four in critical condition.

Neither the federal investigators nor the New York State Police have yet to determine a cause of the accident. Possible factors include driver fatigue, as casino bus drivers frequently work long hours with little sleep. Bronx County prosecutors are also evaluating the crash to make a decision as to whether criminal charges will be filed against the driver, Ophadel Williams. It has been learned that Williams had made false statements when he obtained his commercial driver’s license, including the fact that he had been incarcerated on a manslaughter charge years earlier, and was driving with a suspended license on the date of the accident.

As a result of the accident, New York Senator Chuck Schumer and Rep. Nydia Velazquez of Brooklyn have called for an examination of the safety of buses in the low-cost bus industry, which capitalizes on providing cheap transportation to casinos in Connecticut and New Jersey in order to fill their buses with passengers. One obvious and “no brainer” step would be to immediately require seat belts for all passengers, not just the driver as is presently the statutory requirement. Additionally, another measure being considered would be an interior alarm in the bus which would notify the driver if he were veering off the road or about to run into an obstacle.

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As part of his effort to obtain a balanced budget by April 1, Gov. Cuomo has selected a “Medicaid Redesign Team”, whose purported function is to “reduce Medicaid spending.” While this goal might have some merit, the problem is that the team he put together is comprised solely and wholly of hospital CEO’s, administrators, doctors and insurance representatives. Not one single patient representative on that team to provide some level of objectivity. Naturally, the “team” included in it’s proposal something that doctors have been pushing for many years. A blatant attack on patient safety in the form of a arbitrary $250,000 cap on all medical malpractice awards in the State of New York. Imagine a relative or friend has been left paralyzed, blind, brain damaged, disfigured, or dead through the negligence or carelessness of their doctor or hospital. If this cap is instituted, these grievously injured people would be limited to a total award of $250,000, regardless of the doctor or hospital’s gross neglect, carelessness or recklessness.

For many years now, doctors and hospitals have been making the argument that their medical malpractice premiums are excessive, and that they are forced to practice defensive medicine to avoid lawsuits. However, this specious claim has been refuted time and again by studies and statistics. For example, as reported in the February 2011 edition of the American Journal of Obstetrics & Gynecology, by instituting a comprehensive patient safety program in 2002, New York Presbyterian Hospital was able to reduce “sentinel events” (defined as avoidable deaths and serious injuries) from 5 in 2000 to none in 2008 and 2009. Further, medical malpractice payouts shrank from a high of $50,940,309 in 2003 to an amazing low of only $250,000 in 2009!

In another example proving that the issue is not costs but rather patient safety, a June 2005 report in the Wall Street Journal found that anesthesiologists substantially reduced their malpractice premiums (paying less in 2005 than they did 20 years earlier) by initiating the use of devices that alerted doctors to potentially fatal operating room problems. Further, they instituted procedures that protected patients from potentially fatal carbon monoxide poisoning, The results of these measures are impressive indeed–patient deaths dropped from 1 in every 5,000 cases to 1 death per 200,000-300,000 cases.

Statistically speaking, despite the complaints of doctors and hospitals about medical malpractice lawsuits, they are in fact steadily decreasing in New York State. The New York State Office Of Court Administration (OCA) reports that malpractice filings in 2009 were 3,961, from 2005 when 4,270 such cases were filed.

Normally, this blog focuses on interesting cases, changes in the law and advice to plaintiffs on how to have a successful personal injury case. However, the grossly unfair and arbitrary effort to shift the responsibility of doctor and hospital errors away from those who should ultimately be held responsible–the doctors and hospitals that cause these injuries and deaths–must be stopped in its tracks before it is too late. Please urge your local legislator to vote no to the arbitrary and unfair malpractice caps, and yes to patient safety in allowing grievously injured patients to receive just compensation for their injuries.

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In a follow up to our blog “Fatal Bus Accident Under Federal Investigation” earlier this week, the tour bus industry was rocked again after a second fatal accident occurred, this time on the New Jersey Turnpike on March 14, 2011. In the second accident, a bus operated by Super Luxury Tours crashed after it went onto the grassy median and struck a concrete support for an overpass. The bus was traveling from Chinatown to Philadelphia. The 50 year old driver, Wei Wang, who was not wearing his seat belt as required by statute, was thrown through the windshield and died, as did one 20 year old passenger. 41 other passengers were hospitalized subsequent to the accident. This follows the March 12, 2011 accident on I-95 in the Bronx in which 15 people died when a bus driven by Ophadell Williams rolled onto its side and struck a road sign stanchion. Investigation has revealed that the 40 year old Williams was driving with a suspended license, and had previously been convicted for manslaughter and theft.

Federal investigators from the National Transportation Safety Board (NTSB) have conducted an initial interview of Mr. Williams, who claimed that the bus was clipped by a tractor trailer, causing him to lose control of the bus and causing the horrific accident. Investigators are examining both the bus and the tractor trailer to determine if there is any damage to either vehicle substantiating Mr. Williams’ version of events. Allegedly, witnesses have given statements that the bus had been veering onto the shoulder of the road on several occasions prior to the accident, leading to speculation that Mr. Williams was falling asleep at the wheel before the accident happened. Federal and state investigators questioned Mr. Williams as length about how much sleep he had both prior to and during the overnight trip to draw conclusions as to whether fatigue was a factor in the accident.

Under regulations in place enforced by the Federal Motor Carrier Safety Administration, which oversees the tour bus industry, Williams should not have been driving for more than 10 hours during a 15 hour workday. Legislators including U.S. Senator Charles Schumer have called the safety guidelines inadequate, including the fact that rules are often enforced by roadside inspections carried out by state officials on a random basis.

Another questionable safety practice is that only the driver must be seat belted, and tour buses are generally not equipped with seat belts for passengers. The NTSB is studying whether having seat belts would have reduced the number of fatalities in the I-95 crash that claimed 15 lives. It is also looking at whether new technologies such as a warning system to alert the driver that he is veering off the road or heading for an obstacle would have made any difference.

According to the Federal Motor Carrier Safety Administration website (FMCSA), Super Luxury Tours, the operator of the bus in the NJ Turnpike accident, had one of the worst safety records, faring worse than 99.6 similar companies in the unsafe driving category. World Wide Tours, the operator of the bus in the March 12th I-95 accident, was rated almost right in the middle of all similar companies, with 52.6 operators having a better safety record regarding driver fatigue.

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