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Rick Shapiro
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The Top Ten Civil Justice Stories of 2013 (Part 1)

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In our second annual series, we count down the top 10 civil justice stories of 2013, like Dave Letterman, from 10 all the way up to the biggest story of the year at # 1, in our second installment in this special countdown.

10. Design Defect Creating Serious Risks During Railroad Transport of Oil

Why It’s Big

dot111In July 2013, 47 people died in Quebec, Canada.  The local fire chief called the wreckage at the town center a “war zone.” But what caused the death and devastation?  A 73 car runaway train loaded with crude oil tanker cars barreled into town at 1:00 a.m. Explosions; fires; 1,000 residents ultimately evacuated. Transportation of toxic and hazardous substances by railroad is dangerous enough, but is even more suspect due to the railroad tanker car used to carry much of the oil: the DOT-111. This type of rail car suffers from a well-known design flaw, which causes its steel shell to puncture easily in the event of a derailment. The design defect was seen as a contributing problem in the Canadian railroad derailment and has also played a role in dozens of other train crashes in the USA while carrying oil, ethanol and other hazardous liquids.

What Did We Learn?

The tragic derailment in Quebec serves to highlight the trouble with the recent boom in oil shipments by railroad. Though the growth of the North American oil industry has been a boon to railroad operators, the safety concern is that the transportation of these hazardous substances by rail could lead to an increase in tragedies like the one in Quebec, perhaps with even more disastrous environmental and human costs.

It’s time for the U.S. Federal Railroad Administration (FRA) to step up and mandate improved railroad car construction, whenever hazardous substances are transported.  The number of train cars carrying crude oil have exploded in recent years, increasingly 20-fold since 2009 to an estimated 200,000 cars last year. As plans for new pipelines are scuttled, the industry has turned to railroads to keep supplies moving. However, this comes at a cost. Experts say that spills happen far more frequently on trains than if oil is transported by pipeline.

Another problem with rail transport is that many train routes pass through major population centers; something that pipelines can be designed to avoid. Though pipelines present their own problems, there ought to be a more honest discussion of the dangers posed by having highly volatile substances, stored in railroad cars that have well known design limitations.  Sure, a tanker car is fine to hold crude oil in normal transport, but in case of derailments these same cars are known to be easily compromised. Nonetheless, every day they are crisscrossing the USA at high rates of speed. It’s not a disaster waiting to happen, but a disaster that has already happened.

Dig Deeper:

Does Canada train blast show danger of oil transport in US?,” Peter Grier, CSMonitor.com.

9. Deadly Medical Mistakes Mount Up – Annual Deaths from Medical Malpractice Exceed Strokes & Accidents…Combined!

Why It’s Big

med malHundreds of thousands of people are dying every year due to preventable medical malpractice errors made by doctors, hospitals and nurses. The number of estimated Americans that died each year from medical errors was thought to be 98,000. However, that estimate was nearly three decades old and based on data from 1984.  A startling new, evidence-based, estimate of patient harms associated with hospital care puts the number at between 210,000 and 440,000 annually.

What Did We Learn?

The biggest mistake that doctors often make is misdiagnosis. In a 2013 study of 190 primary-care medical cases, physicians missed 68 diagnoses including pneumonia, congestive heart failure and acute kidney failure.  Nearly four in five medical malpractice errors in the study were related to breakdowns in the patient-doctor encounter. Diagnostic errors have become a major patient safety issue, according to Mark Graber, a Veterans Administration physician. In 14 percent of cases, the misdiagnosis resulted in death, or an error that almost caused death.

Despite this data, some people still proclaim that “tort reform” is the answer, despite the fact that numerous studies have shown that medical malpractice lawsuit recoveries are not a significant percentage of healthcare costs. And studies like the one described above illustrate that the number of preventable deaths per year due to medical mistakes emphasize the need for financial accountability for doctors and hospitals.

Dig Deeper:

The Biggest Mistake that Doctors Make,” Laura Landro, The Wall Street Journal (subscription required to access the article)

8. Nursing Homes Fail Patients Across the Country

Why It’s Big

elderlyThe demand for nursing homes is increasing every year, but it appears that many nursing homes are being run poorly, with too much attention to cost-cutting, and not enough on patient safety.  More than 1.5 million Americans live in our nation’s nursing homes and, over the next decade, that number is expected to increase by 40 percent as baby boomers become long-term care consumers. Unfortunately, a new report published by Families for Better Care shows that 90% of nursing homes are deficient.  To make matters worse, many families are being forced to give up their right to take their case to court even if their family member is severely injured or killed due to blatant neglect and malpractice.  How? Through fine print in the nursing home placement papers that mandates “nursing home arbitration”.  No right to a trial to a jury, instead a process that lacks many constitutional safeguards of the civil justice system put in place by the founding fathers of the United States.

What Did We Learn?

A congressional report found that 30 percent of nursing homes in the United States — 5,283 facilities — were cited for almost 9,000 instances of abuse over a two-year period.  The most common problems included untreated bedsores, inadequate medical care, malnutrition, dehydration, preventable accidents, and inadequate sanitation and hygiene, the report said.  To add insult to injury, more nursing home corporations are using mandatory arbitration clauses as a way to avoid transparency and accountability for their negligence.  Inserted in the fine print of lengthy admission documents, many families are stunned and unaware they signed away their constitutional rights to trial by jury until something tragic happens, and then it’s too late.

Nursing homes receive more than $75 billion from government programs like Medicare and Medicaid.  When residents in these programs are injured as a result of neglect or sub-standard medical care, and nursing homes ultimately pay for the harms and losses, Medicare and Medicaid end up covering any additional medical costs of the resulting treatments.  Its a vicious cycle and that is why requiring accountability and attention to patient health and safety must be the paramount goal of the civil justice system vis-à-vis nursing home care.  Perhaps the U.S. Supreme Court will address the inequities in not only nursing home “mandatory arbitration” admission agreements, but in mandatory arbitration clauses creeping into nearly every consumer credit card, banking, and other financial agreement.

Dig Deeper:

Families for Better Care National Report Card for Nursing Homes Across the Country

 

7. E-Cigarettes May Solve Smoke Problem, But New Risks Are Exploding

Why It’s Big

Electronic_Cigarette_N901What was once considered the “safe,” healthier alternative to cigarettes is now proving to carry its own set of serious safety risks. Electronic cigarettes (a.k.a. e-cigarettes) have not only exploded in popularity, but some have literally exploded on customers. For example, a Florida man had an e-cigarette explode in his mouth, busting out teeth and resulting in the loss of a portion of his tongue. A California woman suffered burns after the battery in her e-cigarette exploded in her car. If that wasn’t bad enough, a 3-year-old in Utah suffered second-degree burns across his body back in September after his mother’s e-cigarette exploded and caught his car seat on fire. Nonetheless, the e-cigarette market is burgeoning, and even shops catering to the new electronic cigarettes are popping up in cities across the USA.  Secondly, there is still much unknown about what health issues lurk with regard to residual second hand smoke from e-cigs as well.

What Did We Learn?

Even when a product is marketed as being “safe” doesn’t always means it’s actually 100% safe. Experts say the e-cigarette market is poised to grow from $300 million in sales in 2012 to $1.8 billion by the end of 2013, a six-fold increase. Given the dramatic growth, it’s crucial that the FDA intervene and set standards to ensure the safety of the e-cigarettes’ content and design. Though it’s too late for those already injured by exploding devices, many thousands more can still be spared the same fate. As for the e-cig fumes, the harms are demonstrably less than traditional cigarettes, but one recent study showed that nicotine second hand smoke is still generated by typical e-cigarettes, but in far smaller amounts than regular cigarettes.  The science on what exactly is burned by e-cigs is now being studied more carefully.

Dig Deeper

6. Earning Over Learning? Unpaid Interns Challenge Status Quo in Court…And Win.

Why It’s Big

michigan no faultIf unpaid interns continue to win in court against their “employers,” it could fundamentally alter the employment landscape of young Americans. We wager most people who read this article have known someone who has been an unpaid intern.  You may even have one in your office right now. Well, you may want to start paying them.  Groups of unpaid interns have won several recent employment law cases against companies, including big corporations like Fox. Judges have reasoned that these unpaid internships violate federal labor laws, specifically the Fair Labor Standards Act.

What Did We Learn?

Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that many employers–large and small–are not paying them for the many hours they work.  Many interns are happy to get their “foot in the door.” The practice of classifying such workers as “interns” to avoid paying wages runs afoul of federal and state wage and hour laws, which require employers to pay the minimum wage and overtime to all workers whom they “suffer or permit” to labor for their business.

An unpaid internship is only lawful in the context of an educational training program, according to the U.S. Department of Labor. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then interns should be viewed as employees and should be entitled to compensation under the federal labor laws.

Dig Deeper

Unpaid Intern Lawsuit ‘Trend’ Is Likely To Expand, Legal Experts Say, Amanda Becker, Huffington Post Business

We continue our countdown with the top five.

rickpatRichard N. Shapiro has been publishing on The Legal Examiner since 2007. He and co-author Patrick Austin are personal injury attorneys based in Virginia Beach with Shapiro, Lewis, Appleton & Favaloro law firm