As readers of this blog know, I’m not a fan of texting while driving, or doing anything else that might distract you from the task at hand–safe driving. That includes using your cell phone, whether hands free or not. It includes making adjustments to your rockin’ music system, if it’s complicated enough.  But even simple tasks have caused significant harm.  One friend, who shall remain anonymous, crashed his new car while looking down from the road for a moment to find a CD to insert into his music system.  Luckily, he was fine. His car was not.  Obviously, it ‘s also a good idea to avoid parenting habits that include spinning around to stare at the misbehaving kid in the back seat while yelling, “One more word from you and you’re walking home!”  Eyes on the road, not the bratty kid.

But maybe cell phone use, texting, knitting-while-driving, etc., are being unfairly targeted.  Obviously, they play a role, and there is no question that countless accidents and injuries have come about by the distraction their use played for the driver.  But in my own experience–which does not include texting while driving now–the last time I ran a stop sign because I was oblivious to it was when I was completely occupied about a work issue.  I was not doing anything that might have distracted me from my ostensible focus on the road.  I didn’t even have the radio on.  And I was lucky to have avoided hitting anybody.

So maybe we all need to take a moment of reflection before getting behind the wheel, to make sure we are not about to engage in the type of distracted driving that only we can see.  Clearly, you don’t need to text or talk to be distracted.  If your mind is elsewhere, one place you know it won’t be is on the road. Wait a few minutes. Take some deep breaths. Ask your spouse/kid/friend to drive. Or call a cab if necessary.

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   If you’ve been up for a while, and had the chance to read the Sunday Review section of today’s NewYork Times, you may have seen an article entitled “Don’t Take Your Vitamins.”  If you haven’t read it,    please do.

It will tell you two things.  First,  taking antioxidants, particlarly in large quantities, is not a great idea. The author, a physician, relies on studies that show disturbing results.  Not only did anti-oxidants not help certain populations–they actually hurt by bringing on cancers.

Good to know, and interesting from a scientific standpoint.  But the author’s second point is disturbing in the way that makes you want to shout out loud, or break something. The dangers of large doses of supplemental antioxidants are not well known to most Americans, because that’s the way the vitamin manufacturing industry wants it. In 1972, the FDA proposed a bill that would have regulated supplements that contained over 150% of the recommended daily allowance.  But the industry tapped a Democratic Senator, William Proxmire, who created a bill preventing the FDA from engaging in exactly that type of regulation, and in 1976, it became law.

As the author, Dr. Paul A. Offit, warns: “As a result, consumers don’t know that taking megavitamins could increase their risk of cancer and heart disease and shorten their lives.”

So here we have yet another example of corporate America doing its very best to keep profits high, even if it means endangering the health of consumers by keeping them in the dark. This is one of the founding tenets underlying “tort reform.” Remember when Philip Morris maintained cigarettes did not cause cancer? When Ford maintained the Pinto was safe? When Chrysler, this very week, maintained that its Jeeps were safe, despite regular instances of passengers being incinerated while driving them?

It is all about avoiding accountability to the American consumer. And in keeping with such insidious, profit-driven tactics, corporate America, the biggest collective supporter of the “tort reform” lie, does not like to disclose dangers associated with its products voluntarily.  In most cases, it has required the intervention of plaintiffs’ lawyers, because we talk in the only language corporate America understands: money. It is only when they see the potential threat to their bottom line that a lawsuit could bring that the pendulum swings toward consumer safety, and away from Swiss bank accounts.

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Negligence: The failure to use such care as a reasonably prudent and careful person would use under similar circumstances.

In 2009 the lives of David and Linda Kubert were irreversibly changed for the worse when a vehicle driven  by a distracted driver plowed into their motorcycle and severed a leg on each of them. The driver, a high school student named Kyle Best, had exchanged 62 text messages with his girlfriend, Shannon Colonna, in the hours leading up to the crash.

What is notable about this case is that the Kuberts sued not only Best for negligence, but Colonna as well.   

In 2008, I wrote about this potentially emerging area of law. Could a person who sent the text or made the phone call be liable if the person on the other end has an accident and hurts somebody?

It’s a theory that is being seriously considered by a New Jersey appeals court after a trial court threw out a claim brought by the Kuberts against Colonna. The case hinges on whether Colonna can be found negligent if, when she sent the texts, she knew that the recipient was driving – and therefore might be distracted, and therefore hurt or kill somebody.

Colonna and her lawyer deny any culpability. In an American Bar Association Journal article, Colonna’s attorney, Joseph McGlone, asserted that “My client doesn’t know he’s driving, she doesn’t know his schedule, she can’t control when Kyle Best reads the message.”

Mr. McGlone’s comments to the Journal, though, were tempered during oral arguments, in which one member of the three-judge panel reasoned “…she shouldn’t send it to begin with if she knows that he’s driving.” This suggests that if there’s any possibility – if you have any reasonable idea that the person you’re sending a text to is driving – then you shouldn’t do it.

To prove negligence in the case of Kubert v. Colonna, the Kuberts would need to show that Ms. Colonna knew or should have known that the intended recipient was driving. This might be proven from the context of the text messages. Which brings me to my last point.

Attorneys getting involved in a case like this should alert the lawyer on the other side that they need to preserve the texts. Once the lawsuit starts, the appropriate discovery demand should be served to follow-up and make sure that those texts aren’t lost, because they may be some of the few pieces of evidence available to help prove such a case.

While it may be difficult to prove that any sender of a text knew that the recipient was behind the wheel at a given time, the acceptance of such a theory could act as a deterrent to get the general public thinking more in terms of safety. Before you go to text your pal, just think: Is he or she likely to be behind the wheel of a car? Just give it an extra moment of consideration before tapping the Send button.

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As I write, it is a beautiful spring day in the greater NYC area. It is the kind of day that motivates you to get out on the road in your sporty convertible and take the top down. You know, let the breeze fly through your hair as the sun shines down and excites your inner race-car driver. Well, you might enjoy that experience if you had a sporty convertible, and a full head of hair. Not all of us do, but one day…

But it is also a time to think more sobering thoughts, such as: Is the car I am driving safe? A fair question considering history has proved time and again that car manufacturers will not reveal defects in their products until forced to do so, either by the government, or by plaintiffs’ lawyers. As all good students of recent legal history will recall, Ford was happy to allow passengers to burn to death in its Pinto, because the cost of defending or settling a few lawsuits was less than the cost to modify the manufacturing process needed to address the tap-and-ignite gas tank.

A recent National Law Journal article revisited Toyota’s sudden acceleration issues. Toyota had executed a masterful public relations campaign that calmed the public, and cast blame on driver error and misplaced or wrong-sized floor mats, instead of electronics. Conservative commentators, on line and in the news, jumped on the opportunity to malign injured or dead plaintiffs and their attorneys, based on Toyota’s focus on driver error, and on initial testing. They relished the opportunity to further their “tort reform”-based agenda of shielding Toyota from accountability, while portraying plaintiffs as bloodsuckers on the hindquarters of corporate America.

All of this worked well for Toyota, and tort reform, until the real experts became involved. In the investigation a Toyota insider shared some incriminating emails, all of which is discussed in detail in the National Law Journal’s article, which is entitled, “Is Toyota Telling the Truth About Sudden Acceleration?” Clearly, as the National Law Journal article points out, its CEO of USA Motor Sales was not telling the truth when he told a House subcommittee that “no problems exist in our electronic throttle systems in our vehicles…[on which] We have done extensive testing…and have never found a malfunction that caused unintended acceleration.”

And now Ford Motor Co. has returned to the national spotlight with a lawsuit which includes claims that it failed to install brake overrides to handle electronic defects that resulted in sudden acceleration. This comes via the April 4, 2013 Daily Report in the National Law Journal. Not surprisingly, Ford knew about the problems in 2002, but failed to take corrective action until 2010 in North American vehicles, according to the suit’s claims.

The cars involved include, according to the article: “Ford’s Explorer, Focus and Taurus; eight Lincoln models, including the Town Car; and eight Mercury Models, including the Grand Marquis and Sable.”

So have fun on the road this spring. But don’t forget to do your homework. The car makers won’t do it for you.

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It’s a difficult time to be someone injured through medical malpractice or products liability.

A recent article in The New York Times talked about how a number of doctors working for Johnson & Johnson on the DePuy hip replacement saw something was wrong very early on, long before the recall of this hip. The idea of doctors remaining quiet when they could be helpful is upsetting.

Unfortunately, it is understandable that they remain quiet. Most doctors won’t say anything because it’s not in their interest to do so, as their livelihood is tied up with using and promoting this hip. When you have inside information about how poorly the hip is performing, but want to fulfill your ethical obligation under the Hippocratic oath, talking about the problems with this hip is the equivalent of shooting yourself in the foot, career-wise.

Similarly, nobody likes to talk about medical malpractice, or even acknowledge that it happens – making it difficult to implement improvements in the health care industry. Serious medical malpractice issues are rarely acknowledged and will usually only become known if an attorney is contacted. Even when things are readily apparent and there’s no denying the liability of the doctor, it is extremely rare that the profession disciplines itself properly.

Being a victim of medical malpractice is bad enough, but it is also difficult to do anything about it. Plaintiffs in medical malpractice cases always have a difficult time finding doctors to be expert witnesses for them. By testifying against another doctor in the same geographical area, that doctor can create problems for himself. For that reason, many experts come from out of state or a university setting. That way there’s no daily interaction with those whom they testify against.

Doctors have an instinctual response: “How can a doctor testify against another doctor?” When professional associations of orthopedic surgeons – organizations that confer board certification status upon qualified orthopedists – learn that one of their own has testified for a plaintiff in a lawsuit, they will obtain the transcript for that lawsuit. They scrutinize it looking for any opportunity to find fault with the expert’s testimony and characterize it as misleading. In many instances they have been successful in having orthopedists who have testified for plaintiffs removed from their associations, as well as revoking their board certification and hospital privileges in some cases.

Medical Justice: What Kind of Justice is This? medicaljustice.com

On the same theme, there is a group run by doctors whose slogan is “Making healthcare safe for doctors”. They gather information about physicians who testify for plaintiffs and do their best to make professional life difficult for them. They take steps to hurt their reputations while operating under the guise of “protecting the medical community.” And they act like a vigilante mob, with little regard for the professional lives they derail with their agenda.

And to add to the difficulties confronting victims of medical malpractice or products liability, there is a well-financed, national publicity campaign that attempts to portray such victims, and the lawyers who represent them, as fakes who are out to game the court system into showering them with unjustifiable cash awards. This is tort “reform.”

Tort Reform

Despite the attractive name, tort reform is little more than a mass public relations effort funded by the largest medical device manufacturers, cigarette manufacturers, big pharma, big medicine and companies that manufacture products that are known to cause injury — particularly if there are problems in the production of the product.

The whole idea is to insulate themselves from liability and accountability as much as possible by smearing trial lawyers — making them seem like opportunistic parasites who file “frivolous lawsuits” and seek “jackpot justice” – in other words, unjustified awards.

Lastly, I’d like to address one of the most steadfast entities that support tort “reform”– the various Chambers of Commerce.

The U.S. Chamber of Commerce is not a unit of the government. It’s not out there to make sure everyone gets a fair shot at setting up their business. In fact, it’s essentially a front for established businesses who want to continue their commerce, unimpeded by things such as the rights of folks who are injured by them.

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The New England Journal of Medicine recently responded to the mass shooting of elementary school children in Newtown, CT, by publishing an article entitled “Preventing Gun Deaths in Children.”  Despite the sense of temporary disbelief a reader experiences by seeing such words on the printed page (or computer screen), and the primal feelings of shock, horror, anger and sympathy aroused, the physician authors wrote a sobering article on this most unpleasant subject, devoid of drama and hyperbole.  The ironic thing is that after reading it, all except the paranoid gun owners who fear that “the Government” is going to not only attack them, but disarm them–ideas repeatedly sown by Wayne Lapierre of the NRA–will be fuming in anger, and fantasizing about committing violent acts against the legislators who have failed us so miserably by making it so onerous to take sensible steps to protect our children.

Both authors are pediatricians who have lost patients to gun violence. They also know how kids behave, and what influences them. A young child fascinated by cartoons, videogames and superheroes, left unsupervised in a home with unsecured guns might just pick one up and shoot his playdate. Drugs and depression and disappointments in relationships may drive adolescents to guns. And then there are the mentally unstable. As the authors note:

“The American Academy of Pediatrics (AAP), recognizing all these vulnerabilities, declared in a policy statement on firearms in October 2012 that ‘the absence of guns from homes and communities is the most effective measure to prevent suicide, homicide, and unintentional injuries to children and adolescents.’”

But securing guns is also a valuable idea, and when pediatricians counseled families with guns to lock them up, increased safety and decreased death and injury resulted. However, this idea did not sit well with everyone.  As the authors note, in 2011, Florida passed the Firearms Owners’ Privacy Act, which made it illegal for a doctor to even ask about guns in the home. After the American Academy of Pediatrics brought a suit for injunctive relief, the state was prevented from enforcing the law.  But the issue is far from settled, since Florida Governor Rick Scott has appealed the ruling, and similar legislation is being introduced in other states.

But wait…there’s more! (as they say on TV):

“At the federal level, problematic language was introduced into the Affordable Care Act. Section 2717(c) sets restrictions on the collection and aggregation of data on guns in the home. Furthermore, Congress has restricted the research activities of the Centers for Disease Control and Prevention (CDC) by stipulating that no funds that are made available for injury prevention and control at the CDC “may be used to advocate or promote gun control.” Strictures like these often have a chilling effect on the gathering of important public health data.”

Of course, the authors have several common-sense recommendations to offer to reduce gun violence against children. Essentially, they advocate for less guns and more regulation and supervision of purchases. And they would like to be more involved, and have better access to at-risk families.  But these well-thought-out suggestions will amount to nothing if the voting public continues to support politicians more concerned with the financial well being of gun manufacturers, and the outsized vision of Second Amendment rights maintained by gun owners, than the safety of children.

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