$4.1m Settlement for Student Abandoned in DEA Facility

The U.S. Government agrees to pay Daniel Chong $4.1 million after ‘accidentally’ leaving him locked in a room for five days with no food or water.

Last year Daniel Chong was a student at UC San Diego, and on April 20th, like many college students, he and some friends decided to get high. Unfortunately for the group, the house they went to for the drugs was under surveillance and they soon found themselves swept up in a raid conducted by the Drug Enforcement Administration.

key hole

Whether or not you agree with Chong’s decision to smoke marijuana, what happened next is simply appalling. After being questioned by DEA agents, Chong was told no charges would be filed against him and that he’d be released soon. Still in handcuffs, Chong was placed into a locked interrogation room and left there… for five days. Five days with: no food, no water, no toilet, no human contact, and for the last 48 hours, no light.

When DEA employees finally found him, Chong was severely dehydrated and having trouble breathing. With no toilet facilities available, Chong was forced to drink his own urine to stay alive. He lost 15 pounds during the horrific ordeal and had to be hospitalized for 5 days due to kidney failure and a perforated esophagus. The event has had a lasting effect on Chong, who still receives psychological therapy for his PTSD.

What does the settlement accomplish?

In an out-of-court settlement reached this week, the federal government agreed to pay Chong $4.1 million for his maltreatment claim. But what does that really accomplish? The purpose of legal liability is to compensate an injured party for harm he has suffered. But it also serves to deter undesirable behavior and, in some cases, punish the wrongdoer. However when a government agency makes such an egregious mistake, it’s the taxpayer who ultimately foots the bill. In many cases there is no liability at all, as government agencies and their employees frequently enjoy immunity – meaning they cannot be sued.

It’s been over a year since Mr. Chong was left to rot in that 10 by 5 foot, windowless room. And yet, no one can an answer  how such a travesty occurred. There has been no word from the DEA or the Department of Justice as to whether any employees have even been disciplined. While the law suit has brought about some policy changes at DEA detention facilities, the Department of Justice’s Office of Inspector General is still “investigating the incident.”

 

Source: “Student locked in a room at DEA facilities for 5 days to get $4.1 million” by Tony Perry L.A. Times, July 30, 2013.

Garage Sales – what you need to know

yard-sale2Summer time is the peak season for garage sales. Kids and grown-ups alike have fun rummaging through their neighbor’s castoffs – hunting for a bargain or “new” treasure. But did you know when planning a garage sale, there are some very important legal issues to consider? Taking these simple steps before you host a garage sale may help prevent a great deal of legal problems down the line.

Check local permit requirements

Many cities require residents to purchase a permit (usually for around $5.00) before conducting a “home sale” – a sale of personal property to the public which is conducted on residential property. Local ordinances also may set parameters on things such as advertising (especially the placement of signs), hours of operation, the type of merchandise permitted, and the number of garage sales permitted each year. If you are part of a home owner’s association, there may be additional regulations that must be followed.

Insurance

Check with your insurance agent or company representative to be sure you have enough liability insurance to protect your assets in case you’re sued. Most standard home and renters insurance policies will generally provide at least $100,000 of liability coverage. This coverage pays for both the cost of defending you in court and court awards for damages —up to the limit of your policy.

Most standard homeowners or renters policies have “no-fault medical coverage” as part of the liability protection. This coverage allows someone who gets injured on your property to simply submit his or her medical bills to your insurance company without having to file a lawsuit. However, most policies only include about $1,000 to $5,000 worth of this type of coverage.

Depending on your property value, you may want to consider raising your liability coverage to at least $300,000 to $500,000. If you need more coverage, excess liability or umbrella coverage can provide additional protection and won’t cost you more than $350 a year for $1,000,000 worth of coverage. 

The Insurance Information Institute offers the following guidelines for different types sales:

  • One Time Event: Yard sales that are one-time events for the sole purpose of selling unwanted personal items are generally covered under a standard homeowners or renters policy. However, it is important to have enough coverage, so be sure to check with your insurance agent or company representative.
  • Frequent Yard Sales: If you have frequent yard sales, it is a good idea to purchase a separate policy for business liability or an in-home business policy. These policies are available from many homeowner’s insurance companies and specialty insurers that sell stand-alone in-home business policies.
  • Charity Fundraiser: If you are staging a sale to raise money for a charity, you will most likely be covered under your homeowners or renters insurance policy. But you can also contact the charity to see what type of insurance protection they would be willing to extend to you if necessary.

Plan your sale with safety in mind:

  • Repair loose railings and cracked concrete which may cause injuries.
  • Place sale items so that there is enough space to move about without tripping.
  • Avoid placing items too close to stairs and ledges where people could fall.
  • Keep sharp objects such as knives and scissors out of the reach of children.
  • Do not sell items that you know are unsafe or hazardous including recalled items.
  • Keep your pets safely indoors during the sale, both for their safety and to avoid someone getting hurt. Some dog breeds can become very protective when there are several strangers on their property.
  • If someone does get injured, make sure that you get them medical attention as soon as possible.

The resale of recalled items is against the law

The Consumer Product Safety Improvement Act (CPSIA) of 2008 made it illegal to resell recalled or other dangerous children’s items. Used car seats, old cribs, second-hand bike helmets, and even outdated children’s coats can pose risks. Check the Consumer Product Safety Commission’s Web site www.cpsc.gov/ for product recalls before hosting a garage sale. Car seats can be checked at www.nhtsa.gov/.

Taxes

As a general rule, you don’t have to pay taxes on items you sell at your occasional garage sale. The IRS assumes you’re selling household items you bought and used for personal use and you’re selling them for less than what you paid for them. However, you can’t take a deduction for any losses, either. If you frequently sell items at garage sales or make profits on items, talk to a tax attorney or another tax professional to make sure you avoid problems with the IRS.

 

Patient Crushed by Medical Equipment

Hawkeye4_unitA patient was killed in a shocking accident in New York at the James J. Peters VA Medical Center. The 66-year-old veteran was crushed when a gamma camera fell on him during a routine diagnostic procedure on June 5th. The massive Infinia Hawkeye 4 gamma camera involved in the fatal accident weighs more than 5,000 pounds. The diagnostic system is manufactured by General Electric Healthcare; they are also responsible for the camera’s maintenance.

Gamma camera accidents are rare, but William Spies, a professor of radiology at Northwestern University Feinberg School of Medicine, recalls a similar incident occurring many years ago.

GE sent an urgent letter dated June 17, 2013 to all affected medical facilities. The letter recommended that qualified service personnel maintain the medical equipment and that operators should review safety procedures. Then, on June 3rd, GE issued a Class I recall, instructing hospitals to stop using the device because serious injuries or deaths could occur.

The Food and Drug Administration is encouraging healthcare professionals and patients to report adverse events or side effects related to the use of the gamma camera to the FDA’s MedWatch Safety Information and Adverse Event Reporting Program

Improperly manufactured or maintained medical equipment and devices can leave patients at risk for a variety of debilitating injuries. If you or a loved one has used a dangerous or recalled medical device, our injury lawyers can help. Call 1-800-ELK-OHIO or contact us online to schedule your free consultation.

 

Sources:

Equipment Collapses, Killing Patient” by Tamer El-Ghobashy and Christopher Weaver, Wall Street Journal, June 7, 2013.

“GE Healthcare Nuclear Medicine Systems: Class I Recall – Serious Injuries or Deaths Could Occur” U.S. Food and Drug Administration, July 29, 2013.

Children’s Medical Devices May Pose Safety Issues

When it comes to medical devices, one size does not fit all. Parents and other caregivers who experience problems with pediatric medical devices are being encouraged to report any issues with the Food and Drug Administration. The FDA wants this information to help them assess any safety issues and conduct any needed follow-up investigations.

What is a medical device?Child Waits for Health Care

According to the FDA, “Medical devices range from the simple items in your medicine cabinet, like adhesive bandages, to complicated equipment, such as X-ray machines and pacemakers.” Devices used by children can include braces, hearing aids, insulin pumps, blood glucose monitors, breathing devices, and joint replacements.

Things to Think About

To help ensure that devices used by or on children are safe and effective, the FDA recommends caregivers keep the following things in mind:

  • One size does not fit all for devices. Devices are often designed for adults but used for children, whose smaller size and weight may make it challenging to accommodate some devices. Moreover, not all pediatric patients are alike. Devices might need to be changed or replaced as children grow.
  • Children and adolescents may be at varying stages of activity and development, and are exposed to different environments. Be alert for signs of device problems because some children may not be able to communicate.
  • Children may be prone to falls, bumps and infections as they grow and develop, and this can cause mechanical damage to devices, such as implanted devices.
  • Caregivers or children might not pay attention to device alarms or may not notice low battery power.
  • Many devices use catheters, which can move, kink, break or disconnect, preventing the child from receiving the intended care and increasing the risk of contamination.

More Funding and Research Needed

The New York Times recently reported that the development of devices for children “lags a decade behind device development for adults.” In many cases, there is no pediatric surgical device available, so doctors are forced to use adult-sized devices “off label” in the children they treat.

“Often we end up having to dramatically modify an operation simply to be able to implant a device in a child,” said Dr. Pedro del Nido, chairman of the department of cardiac surgery at Boston’s Children’s Hospital.

Congress passed the Pediatric Medical Device Safety and Improvement Act in 2007 which authorized the FDA to offer grants to stimulate pediatric device development. Despite the $11 million given in grants, companies still find research and development expenses hard to recoup, given the relatively small market for children’s devices.  Furthermore, little market data exists on what pediatric devices are needed most.

How to Report

According to the FDA’s Web site, Parents and other caregivers can report pediatric problems with medical devices through MedWatch: The FDA Safety Information and Adverse Event Reporting program. The agency urges caregivers to make sure to include the patient’s age and as much information about the event and device as possible to facilitate identifying pediatric device problems.

 

Sources:

Medical Devices Fall Short for Children” by Laurie Tarkan, New York Times, May 6, 2013.

“Safety Problems With Your Child’s Medical Device?” FDA Consumer Health Information, July 2013.

Black Boxes: Not Just for Planes

The recent tragic crash of Asiana Flight 214 in California that caused two deaths and injured hundreds of people is currently under investigation. The National Traffic Safety Board says that data recovered from the plane’s “black boxes” has revealed that the flight crew discussed aborting the landing as late as 1.5 seconds before impact. These types of devices are expected on aircraft, but did you know that cars have “black boxes” too?

Automotive “Black Boxes”

According to the New York Times, around 96 percent of all new vehicles sold in the United States have “black boxes.” The National Highway Traffic Safety Board wants them to be mandatory in all new vehicles because they can make a major impact on highway safety, help to define auto safety problems, assist law enforcement, and provide information regarding specific aspects of a crash.

Event Data Recorder (EDR)

When trying to piece the details of a traffic accident together, these devices can be invaluable. In the automotive industry, they are known as an event data recorder (EDR), which provides information about the impact and airbag deployment during the crucial moments of an accident.

According to the NHTSA, an EDR is “a device installed in a motor vehicle to record technical vehicle and occupant information for a brief period of time (seconds, not minutes) before, during and after a crash.”

EDRs may record:

  • Pre-crash vehicle dynamics and system status
  • Driver inputs
  • Vehicle crash signature
  • Restraint usage/deployment status
  • Post-crash data such as the activation of an automatic collision notification system (like OnStar.)

Using an EDR is just one of the many ways our car accident attorneys can prove your case. We know how to gather information from audio or video recordings, GPS navigation systems and data logs (such as hours of service for truck operators), as well as witness testimony and assemble the data in order get you the compensation you deserve.

 

Download and print out our Accident Checklist and keep it in your glove compartment so you have it handy if you are ever in an accident. It includes 11 tips to follow and also provides space to take notes at the scene of the accident. There is no registration required to receive this valuable free resource.

 

Sources:

A Black Box for Car Crashes” by Jaclyn Trop, New York Times, July 21, 2013.

“Event Data Recorder Research Web site” National Highway Traffic Safety Administration, accessed July 26, 2013.

Finding The Right Repair Shop After An Accident

by Arthur Elk

auto accidentOnce you consider and treat health concerns after a crash or collision, getting your vehicle fixed is of great importance. As an accident lawyer, I consult with many clients who rely on their vehicle for transportation every day. So I understand that being without a vehicle can place strain not only an individual, but also their family and friends.

Finding the right auto repair shop does not need to be a difficult proposition. With a few considerations, you can proceed with confidence and know that your car or truck is in good hands.

Technical qualifications show that the staff of the repair location has undergone extensive training and testing to ensure their proficiency. Groups like the National Institute for Automotive Service Excellence award skilled mechanics qualifications that can be displayed in the location. Check for an ASE or equivalent branding at the repair shop.

You also can discern quality by the appearance of an auto repair shop. Clean, neat businesses are often run well and staffed by conscientious employees. Be prepared to make allowances for busy days however.

You can get valuable insight to the quality of a business through online testimonials and recommendations. Customers should choose a location for its service as opposed to its pricing, since service is a more reliable indicator of quality.

As an experienced car accident attorney, I understand the value of proper preparation. If you are the owner of a vehicle, a skilled mechanic can be incredibly valuable. Find a reliable location once, and you may never need to make that search again.

 

Sources:

A good car repair shop — how to find one” by Tom Torbjornsen, CNN.com

“Finding Honest Repair Shops” by Vincent Ciulla, About.com

 

Ban of Menthol Cigarettes on the Horizon

Smokers of menthol cigarettes may soon be facing the difficult choice of either switching to regular cigarettes or kicking the habit altogether. A massive 153-page preliminary study released by the Food and Drug Administration (FDA) this week found that adding menthol to cigarettes may cause new smokers to pick up the habit more easily and also make it harder for smokers to quit. Although no ban has been put in place yet, the FDA is currently seeking input from the health community, the tobacco industry and others on possible restrictions on the minty cigarettes.

Why did the FDA conduct this study?

In 2009, Congress gave the FDA power to regulate tobacco. That year, in an effort to reduce the amount of underage smokers, Congress also enacted the Family Smoking Prevention Tobacco Control Act. It banned cigarettes with flavoring such as candy, fruit or spices. However, the law excluded peppermint-flavored menthol cigarettes, a move that angered members of the World Trade Organization (WTO). They argued that the ban unfairly targeted the exports of other countries, especially Indonesia, the primary manufacturer of clove cigarettes.

Last year, the WTO found the U.S. in violation of trade rules as a result of the ban, and ruled the U.S. should either allow imports of Indonesian clove cigarettes or ban menthol cigarettes. The deadline for that ultimatum is… today (July 25, 2013.)

All Cigarettes are Dangerous

Despite the FDA’s findings that menthol cigarettes pose a greater risk to public health than non-flavored cigarettes, let’s not lose sight of the fact that all forms of tobacco are linked to serious health risks. Cigarettes, cigars, pipe tobacco, and even smokeless products such as chewing tobacco and snuff are all hazardous to your health. Tobacco products can cause numerous forms of cancer, gum disease, stroke, coronary heart disease, and even erectile dysfunction.

 

Sources:

FDA: Menthol cigarettes probably pose greater health risk than standard ones” by Brady Dennis, The Washington Post, July 23, 2013.

Preliminary Scientific Evaluation of the Possible Public Health Effects of Menthol versus Nonmenthol CigarettesFood and Drug Administration, July 23, 2013.

New Rules for Truck Drivers Spur Debate

Semi-truckThe new hours-of-service rules reflect the administration’s concerns that truck drivers who do not get enough rest put other motorists at risk. Studies conducted by the FMCSA concluded that working long hours on a continuing basis can lead to chronic fatigue, a high risk of crashes, and a number of serious chronic health conditions in drivers. The agency estimates the new safety regulations will save 19 lives and prevent approximately 1,400 truck accidents and 560 injuries each year.

FMCSA’s new hours-of-service final rule:

  • Limits the maximum average work week for truck drivers to 70 hours, a decrease from the current maximum of 82 hours
  • Allows truck drivers who reach the maximum 70 hours of driving within a week to resume driving if they rest for 34 consecutive hours, including at least two nights when their body clock demands sleep the most – from 1-5 a.m.
  • Requires truck drivers to take a 30-minute break during the first eight hours of a shift
  • The final rule retains the current 11-hour daily driving limit and 14-hour work day.

Companies and drivers that commit flagrant violations could face stiff penalties. Trucking companies and passenger carriers that allow drivers to exceed driving limits by more than three hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.

Legal battle underway

Some members of the trucking industry are challenging the changes, which they see as too restrictive. The American Trucking Associations have filed a law suit against the FMCSA to prevent the new rules. The suit alleges the rules contain “arbitrary and capricious” provisions that force “unwanted and unnecessary” changes on drivers.

However, according to the FMCSA, “Only the most extreme schedules will be impacted, and more than 85 percent of the truck driving workforce will see no changes.” The agency also contends that the new regulations will provide a broader economic benefit. They estimate there will be $280 million in savings from fewer large truck crashes and $470 million in savings from improved driver health. “Most importantly, it will save lives,” said FMCSA Administrator Anne S. Ferro.

Dangers of drowsy driving

Commercial truck drivers are especially susceptible to drowsy driving. The National Transportation Safety Board (NTSB) reported that drowsy driving was probably the cause of more than half of crashes leading to a truck driver’s death and for each truck driver fatality; another three to four people are killed. According to the U.S. Department of Transportation, in 2011 there were 329,000 motor vehicle crashes involving large trucks and buses that resulted in 73,000 injuries, and 3,568 deaths.

Whether or not the lawsuit is successful, accidents with large trucks and commercial busses will undoubtedly continue to occur. Distracted driving, improper training, neglected equipment, and even the erratic driving of a motorist near a large truck can all contribute to a crash.

At Elk & Elk, our attorneys have the resources and the knowledge required to tackle even the most complicated commercial vehicle accidents. If you have been hurt in an accident, Call 1-800-ELK-OHIO or contact us online to schedule a free consultation with our experienced lawyers. We are available 24/7/365 to make sure we are there when you need help the most, and we never charge any fees upfront.

Sources:

Federal limits on truck drivers’ hours fuel controversy” by Emily West and Chas Sisk, USA Today, July 9, 2013.

Initial Brief for Petitioner and Intervenors in Support of PetitionerAmerican Trucking Associations, et al. v. FMCSA (D.C. Circuit, Case No. 12-1092) Oral arguments took place on March 15, 2013 before Circuit Judges Brown and Griffith, and Senior Circuit Judge Randolph.

“Commercial Motor Vehicle Facts” Federal Motor Carrier Safety Administration, U.S. Department of Transportation, March 2013.

Decongestants May Cause Birth Defects

A new study reveals that using over-the-counter decongestants during pregnancy may increase the risk of a child being born with birth defects. Scientists at the Slone Epidemiology Center at Boston University interviewed nearly 20,000 mothers to find out what drugs they had taken while they were pregnant. What they found was a link between several types of over- the-counter cold medicines and certain rare birth defects.

Phenylephrine is a decongestant commonly found in cold medicines such as Sudafed. The study showed that women taking this medication during their first trimester were eight times likelier to give birth to a child with endocardial cushion defect – an abnormal heart condition in which the walls separating the chambers of the heart are poorly formed or absent.

Pseudoephedrine (also in Sudafed) was linked to a 3-fold higher risk of limb reduction defects –the failure of an arm or leg of a fetus to form completely during pregnancy. The defect is referred to as a “limb reduction” because a limb is reduced from its normal size or is missing.

Imidazolines are used in eyedrops and nasal sprays. Babies born to mothers who used these products were twice as likely to develop tracheoesophageal fistula – a birth defect in the throat which causes an abnormal connection between the trachea (windpipe) and esophagus (the tube that carries food.) This condition may allow food within the esophagus to pass into the trachea (and on to the lungs) or alternatively, air in the trachea may cross into the esophagus, and enter the digestive system.

What are my risks?

The author of the study, Dr. Allen Mitchell, cautions pregnant mothers about the use of these and other over-the-counter medicines, but feels that more research is necessary:

“The fact that medications such as decongestants are typically and widely available for use without a prescription and do not require consultation with a healthcare provider should not be assumed to mean they are safe with respect to the fetus, since there are still relatively few studies that examine the risks and relative safety of these ‘over-the-counter’ medications, which are more wide used in pregnancy than prescription medications.”

It should be noted that these are very rare birth defects, in some cases only affecting 1 out of 1000 births. But in a country with around 4 million births each year, that translates to 4000 children who may be at risk.

Always use caution

The CDC recommends that women who are or plan to be pregnant (as well as nursing mothers) speak with their doctor if they have taken any medication or are thinking of taking any medication. This includes prescription and over-the-counter medications, in addition to dietary or herbal products. The doctor and patient should discuss whether the benefits of a drug or supplement outweigh any risks to the fetus.

The FDA has prepared this downloadable brochure about medicines and pregnancy.

 

Source:

“Decongestants in pregnancy linked to birth defects” by Kathryn Doyle, Reuters July 22, 2013.

22 Infected in Deadly Ohio Legionnaires’ Outbreak

UPDATE: Total count of infected persons is now 27.

A retirement community in Reynoldsburg, Ohio is the center of the state’s worst Legionnaires’ disease outbreak in decades, infecting 22 27 people and leaving two dead. Officials from the Centers of Disease Control and Prevention (CDC) are working with the Ohio Department of Health and local county officials to determine the source. The Columbus Dispatch reports that one visitor and one employee of the retirement community were infected. The rest of those sickened, whose ages range from 63 to 99, are residents. No information has been released about the names or the ages of the two killed by the deadly bacteria.

Legionnaires’ disease

Legionnaires’ disease acquired its name in 1976 when an outbreak of pneumonia occurred among members of the American Legion while attending a convention in Philadelphia. Also known as legionellosis, it is an infection caused by the bacterium Legionella pneumophila.

How is legionellosis spread?

Legionnaire’s disease is acquired after inhaling aerosols (mist or steam) from a water source that contains the bacteria. Possible sources can include large cooling towers, hot water tanks, decorative fountains, showers and hot tubs. Drinking water is not a source of legionella. The disease is not spread from person to person.

Symptoms:

According to the CDC, Legionnaires’ disease is can be difficult to diagnose because it has symptoms like many other forms of pneumonia, including:

  • Cough
  • Shortness of breath
  • High fever
  • Muscle aches
  • Headaches

Those most susceptible are individuals who smoke heavily, have chronic lung disease, or have underlying medical conditions such as diabetes or cancer. Patients with a compromised immune system are also especially at risk. The time between exposure and onset of the illness is usually 2-10 days.

Water temperature

Legionella bacterium is sensitive to water temperature.  In 2011, there was a deadly outbreak of Legionnaires’ disease at the Miami Valley Hospital near Dayton. Several lawsuits were subsequently filed. The suits alleged that insufficient heating of the hot-water system at the hospital was the primary reason for the outbreak.

Water temperature is only one factor in preventing an outbreak, but it is important. The Association of Water Technologies reports the following guidelines:

  • Over 70°C (158°F) = 100% of the Legionella bacteria die rapidly
  • 60°C (140°F) = 90% die in 2 minutes
  • 50°C (122°F) = 90% die in 2 hours
  • 35-46°C (95-115°F) Legionella thrives; maximum growth
  • Under 20°C (68°F) Predominately dormant, but viable

While it would seem that hot water tanks should be kept as hot as possible, Ohio plumbing codes caps hot water temperatures at 120°F due to a potential risk of scalding. However it is possible for institutions to raise hot water temperatures to 140 degrees if they adopt temperature control measures that lower the water temperature at faucets and fixtures by mixing hot and cold water.

Legionnaires’ is frequently perceived as rare because many cases are not detected, and not all detected cases are reported to public health authorities. The CDC estimates that the disease infects 8,000 to 18,000 persons annually in the U.S. but others have estimated as many as 100,000 annual U.S. cases.

If you or someone you know has been affected by Legionnaires’ disease as a result of being present at Wesley Ridge Retirement Community, Elk & Elk wants to hear from you. Just call 1-800-ELK-OHIO or complete our free, no-obligation online contact form.

Sources:

Legionnaire’s outbreak at Reynoldsburg retirement community affects 22” by Danae King, The Columbus Dispatch, July 19, 2013.

Legionella (Legionnaires’ Disease and Pontiac Fever)Center for Disease Control and Prevention(CDC), accessed 7/21/2013.