Personal Injury Law Journal

A recent article in the Wall Street Journal focused on "how to stop hospitals from killing us", the author, a surgeon at John Hopkins Hospital and a frequent writer on physician accountability, and highlighted a number of troubling statistics. While the Institute of Medicine’s estimate that 98,000 deaths occur annually from medical errors in the United States is well publicized, here are some statistics that you may not have heard. Dr. Marty Makary wrote that medical mistakes kill enough people each week to fill four jumbo jets. If medical errors were a disease, they would be the sixth leading cause of death in America, ahead of Alzheimer's and just behind accidents. Surgeons in the United States operate on the wrong body part as often as 40 times a week.

Dr. Makary asserts that the same preventable mistakes are made over and over again, because an unspoken rule in American hospitals is that the mistakes of colleagues should be overlooked. He argues that this disturbing closed-door culture of American medicine should be replaced with greater transparency in the health care system, which is more achievable than ever because of the advent of new technology. He believes that public reporting of medical care statistics will give consumers information upon which to base their healthcare choices, which will serve as a stimulus for higher-quality care. A recent survey showed that 60% of New Yorkers look up a restaurant's performance rating before going there, but that same sort of information is not available when selecting a care provider or institution. Changes such as those suggested by Dr. Makary do not happen overnight, and healthcare consumers should seek out as much information as possible when selecting a healthcare provider.

Medical negligence is often defined as conduct which deviates from the accepted standard of care, and causes an injury as a result of the deviation. This conduct can be both affirmative, such as the doing of something that should not have been done, and negative, in the sense that something which should have been done was not done. If you believe that you or a loved one has been the victim of medical negligence, you should seek advice from a qualified attorney who has the resources available to properly investigate your concerns. Stark & Stark employs a number of attorneys who focus their practice efforts in this specialized area, as well as a forensic nurse practitioner. There is no charge for a consultation with our medical negligence team.

John Sakson a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, concentrating in Accident & Personal Injury Law. For more information, please contact Mr. Sakson.

With the start of a new school year, school safety is heavy on the minds of parents—which these days may mean worrying about possible violence at school.  But studies show school-age children are nine times more likely to be unintentionally injured—on the playground or elsewhere—than to be victims of violence at school, according the National Safe Kids Campaign. The group estimates that 2.2 million children ages 14 and below are injured in school-related accidents each year. 

School-related accidents can be prevented if parents prepare students and stay on the lookout for potential hazards. Here's a list of safety tips from Safe Kids and the American Academy of Pediatrics:

Walking to and from school:

• Plan a route ahead of time. Whether headed all the way to school or to the bus stop, plan a route with the fewest street crossings, and choose intersections with crossing guards, if possible.
• Do a practice walk to school with your child. Instruct them to stay away from vacant lots, fields, parks or other places with few people around.
• Teach children (on foot or bike) to obey all traffic signals, traffic signs, officers and crossing guards. 
• Don't let your child walk alone. Have them walk with a brother or sister, friend, neighbor or other family member.
• Teach children never to talk with strangers or accept a ride. (Remind them that a "stranger" can also be someone you know but not well, or someone you know but don't trust.)

Riding or driving to school:

• Drop off (and pick up) children as close to the school as possible. When dropping off, don’t drive away until you see they are inside the schoolyard or building. 
• Make sure the child wears a helmet if biking to school. Research indicates that a helmet can reduce the risk of head injury by up to 85 percent. For a motor scooter, add sturdy shoes, knee pads and elbow pads. (In Maryland, helmets are required by law for everyone under age 16, on a bike, motor scooter, or even skates).
• Make sure your child knows his or her home phone number and address. Your child should also have your work number and the number of another trusted adult, and should know to dial 911 for emergencies. 

Adults should also take steps to create safe walking and bicycling environment: 

• Choose neighborhood schools within walking and bicycling distance from your home.
• Use sidewalks or bike paths that connect homes with schools.
• Make sure crossing a street is child-friendly (with school crossing guards, raised medians and/or traffic and pedestrian signals).
• Alert drivers near schools to the presence of students (on foot or bicycle), and the need to slow down.
• Use traffic calming devices installed and/or police enforcement, where needed.
• Make sure pathways are accessible for all students, with or without disabilities.
• Work with law enforcement and local officials, to enforce school zone safety and identify changes to improve walking and bicycling conditions around schools. 

Once at school:

• Check out your child’s school playground equipment, looking for hazards such as rusted or broken equipment or unprotected surfaces. The ground area beneath should be covered with wood chips, mulch, sand, pea gravel, mats or fiber material to prevent head injury from falls. Report any hazards to the school.
• Make sure that the school anchors soccer goals into the ground so they won’t tip over and possibly crush a child.
• Teach children proper playground etiquette: No pushing, shoving or crowding (or bullying).
• Give your child some bully-coping strategies (in advance). Teach children not give in to a bully’s demands, but instead to walk away or tell the bully to stop; or if that doesn't work, to talk to the teacher.
• Avoid drawstrings (on hoods, or neck of jackets and sweatshirts). Drawstrings at the waist or jacket bottom should be no more than three inches long, to prevent being caught in vehicle doors or on playground equipment.
• Check that your child’s school has up-to-date information on recalled toys and other children’s products. Schools, day cares and parents can get recall information by fax, email or by regular mail free of charge, by calling the Consumer Product Safety Commission hotline (800-638-2772), or visiting www.cpsc.gov.

John Sakson a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Sakson. 

The arrival of Labor Day marks the end of summer, and the beginning of the school year. Many children greet this date with trepidation, not merely because of the return to a structured environment, but because of their fear of harassment, intimidation or bullying by other students. This unfortunate conduct was the subject of legislation passed in 2010, and known as The Anti-Bullying Bill of Rights Act. The act provides definitions of conduct which violates the act, and establishes a framework and requirements for school districts to implement in order to attempt to quell this offensive and troubling behavior.

According to the act, "harassment, intimidation or bullying" means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school-sponsored function, on a school bus, or off school grounds, that substantially disrupts or interferes with the orderly operation of the school or the rights of other students.  It is also defined as an act that:

1. a reasonable person should know, under the circumstances, that it will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;
2. has the effect of insulting or demeaning any student or group of students; or
3. creates a hostile educational environment for the student by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student.

Unfortunately, the mere passage of legislation does not mean that bullying in schools will cease. If you are a parent and you believe that your child is the victim of bullying in school, the state Department of Education has provided a useful link for you here. 

John Sakson a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Sakson. 

I am involved in the process of renewing our law firm’s health insurance coverage, and in that context our broker brought our attention to this "unique to New Jersey" auto insurance option. New Jersey is the most populous state in the union, with more cars and people per capita than any other state. Given these realities, it is not surprising that New Jersey's auto insurance rates are among the highest in the nation. Elected officials – and those seeking to be elected – often seize on the subject of reducing auto insurance costs as a popular campaign promise.

Former Governor Jim Florio campaigned in 1992, in part, on a promise to lower auto insurance rates. Florio, who was the incumbent governor, instituted a change in New Jersey’s health insurance law which required health insurance carriers to pay for auto accidents and related medical expenses. These expenses were previously excluded from the scope of health coverage. The Florio changes allowed a New Jersey driver to elect "health care primary" coverage, making their health care insurer the primary payor for auto accident related medical expenses.

Ordinarily, these expenses are paid by the auto insurance company as part of P.I.P. (Personal Injury Protection) benefits. The cost of these PIP benefits was a major factor in the increases consumers were experiencing in their automobile insurance premiums. Florio's "slight of hand" maneuver did nothing to reduce the amount of these costs, but it did succeed in shifting these costs from the auto insurance carrier to the healthcare carrier, offering a premium savings to the individual who elected to shift his or her auto insurance medical coverage to a health carrier.

Why is it a bad idea to select "healthcare primary" for your auto insurance? There are at least two reasons.

1. First, PIP benefits under New Jersey law are quite expansive, and cover a wide range of expenses and services which are not payable by a health care carrier. Home alteration for a profoundly injured individual, vehicle modification, home health aides and durable medical equipment are just a few examples of expenses which are routinely paid by PIP carriers, and routinely denied by health care carriers. When you select "healthcare primary", you deny yourself - and your family members - the opportunity to have these benefits funded by your auto carrier.
2. Second, when you elect to use your health coverage as your primary auto accident related coverage, you are accepting all the limitations that come with that coverage, including, but not limited to high deductibles and co-pays, limitations on physicians and/or utilization limitations which would not apply if your auto insurance carrier was paying the bills. The net effect of making this selection is to incur a major loss in available benefits, for a relatively minor savings in premium dollars. For almost everyone, this is a bad deal, because the value of the services and expenses which are excluded from payment when you elect “healthcare primary” is much greater than any premium savings you might enjoy.

I have seen a number of situations where the election of "healthcare primary" created a major problem for my client, and I have never seen a situation where someone felt that the reduction in benefits they suffered was worth the cost savings they received. Don't make the mistake of electing "healthcare primary" when you purchase auto insurance in New Jersey.

John Sakson is a Shareholder and Co-Managing Direcotr of  Stark & Stark’s in the firm's Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Sakson.

One of the more difficult things that personal injury attorneys have to do is to explain to the family of someone who has died as a result of the negligence of another, how New Jersey law values their loss. Imagine that a loved one – a mother, father, child or spouse – has died as a result of an automobile accident or medical mistake. What would you consider to be the most significant element of damages for this loss? Most people would say that the loss of a special person causes great pain and suffering as well as psychological pain to those who are left behind. The unique characteristics of the loved one which made him her or her so special would also be mentioned. Unfortunately, these very real factors in the loss of a loved one have no value under New Jersey law, much to the shock and chagrin of those who are suffering as a result of the loss.

Wrongful death claims in New Jersey are controlled by a statute – N.J.S.A. 2A:31-1 – as they are in all states, because wrongful death claims are not found in the common law and are purely creatures of statute. New Jersey's Wrongful Death Act is a "pecuniary loss only" statute, which recognizes as elements of loss the dollar value of the lost contributions to the family unit, and nothing else. New Jersey courts have urged the legislature to amend this statute to more accurately reflect the actual losses sustained in the case of a wrongful death, but the legislation remains the same. In point of fact, both the New Jersey Senate and Assembly passed a wrongful death bill several years ago, but it died on the governor's desk when he refused to sign it. This antiquated law has caused numerous unjust results, and ultimately caused the New Jersey Supreme Court to engage in Solomon – like behavior in an attempt to reconcile a very difficult situation, in Green v. Bittner, 85 N. J. 1 (1980).  In this tragic case, a young woman about to go away to college died in an automobile accident. Her family sued for damages as a result of her death, and the jury, acting in accordance with the courts jury instructions, awarded zero damages, when they found that the cost of the young woman's personal maintenance (college tuition, etc.) outweighed any likely economic contribution she would make to the family unit. As harsh as it may sound, the loss of their beloved child had more positive economic ramifications for the family than negative. Does this mean that human life has no value ? Can a New Jersey Court affirm a ruling that awards zero damages for the loss of a precious life?

The Supreme Court struggled with the tension between the statutory language and the unjustness of this result, and arrived at a compromise which, although unsatisfactory, gives a jury a basis to award money damages when the deceased was not making a purely economic contribution to the family. The court found that while compensation for emotional loss is not allowable, the pecuniary or marketplace value of companionship which would have provided services equivalent to those received by the aged or infirm from hired companions, nurses or practical nurses is recoverable, as well as the marketplace value of advice and counsel such as could be purchased from a business advisor, therapist or trained counselor. The value of these services may be determined by an economist or actuary, and a dollar value may be reached which, in theory, compensates the survivors for the loss of the services. While everyone knows that the economic losses which are recoverable under this judicial interpretation of the Wrongful Death statute do not reflect the real losses which have been sustained, it is better than nothing. The only way to solve this problem, once and for all, is for the legislature to amend the Wrongful Death Act, and for the governor to sign it into law.

John Sakson is a Shareholder and Co-Managing Direcotr of  Stark & Stark’s in the firm's Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Sakson.