Tuesday, July 31, 2012

Personal Injury

What qualifies as a "personal injury" case?

When most people think of persional injury law, they think of traffic accidents. They imagine the lawyer who advertises on late night television or on billboards. But, there are an abundance of other types of cases that come under the heading of personal injury, for example:
 
 
  • accidents at work (often handled as worker compensation claims)
  • tripping or slip and fall injuries
  • accidents at home
  • injuries caused by product defects
  • injuries caused by an official person at a public place
  • assault and battery (in civil law, assault is the threat, battery is the contact)
  • industrial disease cases including asbestosis, mesothelioma, silicosis, chronic bronchitis asthama,
  • COPD,
  • occupational stress
  • occupational deafness
  • repetitive strain injuries
The first question in any of these types of cases is whether they were caused by another person's intent or negligence. If the answer is yes, the second question we ask is does that person have a duty to the injure person. If yes, then there is likely liability.

The second thing that has to be present is some kind of damage. In other words, the intended or negligent act of the other person caused the victim some injury that the law can compensate them for. Generally, compensation for injury is in monetary form.

Attorneys often represent clients on a "contingency basis," in which the attorney's fee is a percentage of the plaintiff's eventual compensation, payable when the case is resolved. Oftentimes, having an attorney becomes essential because cases become extremely complex, such as in medical malpratice cases. You have no doubt seen some personal injury attorneys advertisements.

 
 Most attorneys do not advertise aggressively. They work on a referral basis or hope that clients will find them when they need them.

The amount of compensation for a personal injury will primarily depend on the severity of the injury. Serious injuries (such as broken bones, severed limbs, brain damage) that cause intense physical pain and suffering will tend to receive the highest injury settlements. Tennessee, as many other states, has recently passed tort reforms which limit the amount of compensation that an injured person may get.

Also, workers compensation cases are governed by statute. There is a schedule of what each type of injury is worth in relation to the overall income of the worker and the length and significance of their disability. Workers are obligated to pursue injury claims that occured at work through workers compensation. This is another type of limitation on compensation for an injury.

 Currently, most cases settle before they go to court. It is often more effecient for all parties to reach an agreed resolution. Sometimes, a trial is necessary. You want to make sure your lawyer knows how to try a case.


Aside from compensation for injuries, the injured person can also get compensated for how the injuries have affected his or her life. An example, a professional golfer suffers a wrist injury which prevents him from playing golf during the season. This can be compensated for, over and above the award for the injury itself. This is called loss of income.

In the same manner the injured person can also be compensated if, as a result of the injuries, you have lost time at work.

Sometimes, a victim is also entitled to punative damages against the person who injured them. This is usually reserved for cases where the defendant has knowingly acted in a malicious way or has recklessly ignored their responsibility - say a doctor who got drunk before an operation.

In cases where there are large settlements, often which pay out money to the victim over time.  Structured settlements provide injury victims with tax benefits and enable proper financial planning for future needs of the injury victim as a result of the injury. If you get such a settlement, you are bettor off avoiding people who want to buy it from you at a discount and give you cash up front, the "its your money and you need it now" people.

Other things to avoid.

I love this cartoon. I can't tell you how many times I have found out things on facebook that have helped my case and hurt my opponant. I had a claim against a summer camp dismissed because of the things the plaintiff said on facebook.

As a general practice, I would think twice about this guy. It is my experience that the "lawsuit" mills do not do as well for clients as lawyers who work cases individually and take them because they believe in them and because the case has merit.

If you or someone you know has been injured, or if someone you know has been killed due to the negligence of another person or a company, please call Attorney Bob Vogel immediately at 865-357-1949 at The Vogel Law Firm or email rlvogel@robertvogellaw.com. We handle cases in State and Federal Court.

Workplace Bully who is a master manipulator

This guy is the most dangerous one around. He comes across as a successful, vibrant part of the company. He is rewarded by his superiors for his accomplishments and ability to turn a profit or keep costs down, whatever his area is. He controls his people through the subtle exploitation of their weaknesses.

I have exerienced two such individuals in my lifetime. One was a division manager I consulted with, the other was a minister. Both had one thing in common: they were very perceptive about other people's weaknesses. They could not only identify those weaknesses, they could exploit them to their own adavantage. It was almost demonic in nature.

Ultimately, they never had normal departments or relationships with anyone. Their workgroups (or in regard to the minister his congregation) began to resemble a dysfunctional family with an abusive parent at the center. It was difficult and damaging to work for him. Both of these indivuduals insured that they received all of the glory for anything their groups did. Both were quick to throw others under the bus when their was a problem.

The key idea is that both of these people were bullies. They manipulated those around them more effectively than anyone who just used physical intimidation. They could, in turn, make people feel highly elevated when they gave out approval and then, with perfect timing, could pull the rug out from under your feet.

I hope that none of you have experienced such a boss or collegue. If you have, there are things you can do about it. Call me, Attorney Bob Vogel at The Vogel Law Firm at 865-357-1949 or email rlvogel@robertvogellaw.com

Below you will find a wonderful article from a website dedicated to dealing with bullies. I highly recommend this site to you: kickbully.com. I will be publishing more on this topic soon.

Workplace Bully as
Master Manipulator

A skilled workplace bully is usually an expert at manipulation. Through artful, indirect and devious methods, he influences and controls others. Like a clever politician, a manipulative workplace bully keeps his desires hidden. Pretending to pursue the greater good, he adopts the mantra of “company first” with a fervency that inspires admiration and respect, and most people accept his claims of selfless pursuit of noble causes.
But underneath his self-righteous image lies the essence of a manipulator: someone who shrewdly and deviously attempts to control how you feel, think and behave.
The master manipulator
  • How does he manipulate?
  • How does he think?
  • Primer on manipulation
  • His disguise makes him dangerous

How does a workplace bully manipulate others?

Methods of manipulation:
  1. Distortion of human relationship
  2. Lack of respect for others
  3. Exploit negative personality traits

1. Distortion of human relationship

Healthy human interactions are not dominated by manipulation. instead, you find genuine concern for others and a sense of cooperation. Even when people have their own self-interest in mind, the principle of fair exchange is followed.
Now compare these honorable behaviors with a manipulator. rather than the simplicity of straightforward, mutually respectful relationships, he finds clever and indirect means to control others. He deceives and seduces, or he creates a chaotic, complex situation within an emotionally supercharged work environment, allowing him to stealthily exploit the naivete and character flaws of others. To a skilled workplace bully, human interaction is all about manipulation.

2. Lack of respect for others

At the root of these manipulative behaviors is a pervasive lack of respect for others. A manipulative bully holds himself in high esteem, but views others as deeply flawed. He is blind to the serious defects in his character, but keenly aware of the slightest weakness or imperfection in others. He is convinced that most people are inferior to him.
Because he doesn’t respect you as an individual, he doesn’t respect your right to make your own choices. From his perspective, “live and let live” has no meaning; either you are with him or against him.
If you are with him, he attempts to thoroughly dominate you. And if you are against him, he feels no pangs of conscience as he undermines you or gets you fired. It never occurs to him that you possess an equal right to pursue success and happiness.

3. Exploit negative personality traits

From a manipulative bully’s perspective, people with negative personality traits are ideal targets. He can more easily manipulate people who are greedy, submissive or anxious. Or people who are blindly sacrificing and naively supportive, or perhaps just trying too hard to please others. His cunning and deceit are powerful weapons against the weaknesses of others.
A manipulative bully’s own nature is a study in negative traits. He is shrewd and dominant, the negative version of leadership and strength. He is judgmental, suspicious, demanding and calculating, all negative personality characteristics. Even his outward charm is cold and calculated (just see how fast his temper flares up when you confront his deceptive behaviors).
At the same time, he lacks positive personality traits, such as genuine concern for others, a generous and understanding nature, a desire to teach and encourage, a desire to have straightforward dealings with others. He dwells in a very dark place lit only by his own hyper-inflated ego and ambition.
If you stay out of his world of negative personality traits, you will be a much more difficult target for his manipulation.

How does a manipulative bully think?

How a manipulator thinks:
  1. Image vs. reality
  2. Center of his own universe
  3. Master of deception
  4. Full of rationalizations

1. Image vs. reality

A manipulative bully is preoccupied with image, particularly his own. He wants to be viewed as highly competent and successful, selfless and noble, a true leader who only wants what is best for the company and the people who work there.
The reality, however, is vastly different. If you see through his mask, a disturbing truth appears: he is scheming and deceitful, driven by an obsessive desire for power, prestige and money.
His outward image is intended to convey virtue and self-sacrifice:
“I care about you. I care about the company. Trust me.”
But what he is actually thinking he would never say to your face:
“You don’t have my savvy, intelligence and strength. You aren’t aggressive and competitive, so you must be weak. I’m going to discover where you are vulnerable, and then use that to control your emotions and behavior.

“I will make you help me become more successful. I may cause you some pain, but that’s okay, because that’s my ‘tough management’ style. And if you don’t cooperate, I’ll make sure you don’t succeed here, or perhaps even get you fired.”

2. Center of his own universe

A manipulative bully never sees things through the eyes of others. That would require empathy, which he lacks. Instead, he creates his own reality, in which he is at the center.
What truly matters to a manipulator?
His own ambitions are most important, particularly financial and career success. He may also seek a vaunted status or even fame (at least within his vocation). He enjoys being the center of attention and wants everything to revolve around him. He derives satisfaction from successfully dominating others.
Why are some manipulators so self-absorbed and aggressive?
Self-absorption and aggressiveness often stem from a lack of control over impulses. When a manipulator lacks internal brakes (which occur naturally for those who are self-aware and care about others), he learns that pleasure comes through impulsiveness and aggression, especially when applied with a keen understanding of human weakness.
Or past successes may have taught him how to control the behaviors of others through exploitation of fear or guilt. Children learn quickly when guilt-ridden parents allow themselves to be manipulated into rewarding bad behavior, or when a weaker peer submits to dominating behavior.
Then as the bully embarked upon his career, he discovered these skills helped him succeed. His success fed his ego and increased his self-absorption, making it easier for him to justify this aberrant behavior as perfectly acceptable, even desirable.
Does a manipulative bully care about other people?
He only cares to the extent others can gratify his ego and help him succeed. Absent are the healthy relationships of mutual respect. He may experience the beginnings of selfless affection for someone else, but sooner or later his ego reasserts it primacy.
But why does a manipulative bully seem so concerned about people close to him?
He may seem concerned for the well-being of others, but usually this reflects a sense of ownership of those he dominates. In reality, he only cares about how they impact his power and reputation within the company. And his affection is conditional upon whether the people he “owns” continue to feed his ego. Disrepect him, even unintentionally, and the positive relationship is instantly destroyed.
Why is a manipulative bully so anxious to control the people he “owns”?
A bully never wants to look ineffective and powerless. In his thinking, if he can’t control the people close to him, upper management won’t view him as a strong leader. So he becomes frustrated when you show any independent thinking or actions that might threaten his control and tarnish his image.
Why is a manipulative bully so hot-and-cold in how he treats the people he “owns”?
He fluctuates wildly in his treatment of people he “owns” because his possessiveness leads to pride of ownership. When one of his possessions does something right, it gratifies his ego. But when he believes someone has made him look bad, he gets angry. And if he feels betrayed, he becomes jealous and retaliates.
But doesn’t a manipulative bully have normal relationships with others?
His relationships are never normal because they are defined by the power and control he has over others. In essence, he treats people like things, never respecting their rights as fellow human beings.
How does a manipulative bully develop such lasting relationships?
He knows how to gain power over others and keep it. He exudes charm and confidence in order to attract those who are naive or emotionally needy, providing them with friendship and camaraderie, or enticing them with promises of future rewards. His followers may stay loyal for many years, or even over their entire careers.
Doesn’t a manipulative bully feel bad about hurting and exploiting others?
He has no respect for people who are emotionally weak and vulnerable, so he doesn’t feel bad about exploiting them. At the same time, he believes that his superior intellect, uncommon wisdom and noble ambition justify his aggressively controlling other people. By forcing them to follow his leadership, he is doing them a favor (in his thinking). As the center of his own universe, he is very good at rationalizing his behaviors so that he feels noble and even heroic.

3. Master of deception

All warfare is based on deception. There is no place where espionage is not used.
- Sun-Tzu
It is counterproductive for a manipulative bully to be straightforward: no one would support him if he revealed his true character. An effective manipulator must be a master of deception.
His repertoire includes hiding his true intentions and predatory nature, concealing information of potential value to others, misleading people on key issues, effectively using hearsay and innuendo, and otherwise obscuring the truth. He shrewdly uses these deceptions to sway others, always to his personal advantage, often to the detriment of his fellow workers.

4. Controls his conscience through rationalizations

A manipulative bully wants to maintain his focus and effectiveness (and be able to sleep at night), which means he can’t be constantly worrying about his questionable motives and negative impact on others. To keep his conscience in control, he rationalizes his bullying behavior. Here are a few of his favorite attitudes:
“Even though my tactics may be a little harsh, my success will bring great things to the company. I must use whatever means are necessary to gain the compliance of others, and I must retaliate against anyone who threatens my good intentions.”
(Ends justify the means)
“Because I have superior intellect, experience, vision and drive to succeed, my judgment is much better than those around me. That makes it desirable to force my will upon others. They will be better off than if they relied on their own inferior abilities.”
(Superior judgment)
“Tough management is the best way to get things done. I am strong and I manage with a firm hand. I may hurt others now and then, but they are better for it.”
(Tough management)
“In the competitive world of business, you are either a predator or a victim. If I don’t destroy the competition, they will destroy me. That includes others within the company who are competing for limited resources; or for power, income and promotions.”
(Get them before they get me)
“I am displaying the time-honored values of winning, including vision, leadership, competitiveness and gamesmanship. I am building a legacy of success that others will respect and honor.”
(Winning is all that matters)

A workplace bully’s primer on manipulation

If there were a primer on manipulation, written by someone without any ethics when it comes to dealing with others, it would go something like this:
Why is it so easy to manipulate people?
“Most people will give you the benefit of the doubt. They assume your intentions are honorable and that you are being honest with them. Since you work for the same company, they naively think you will be straightforward and cooperative, obeying the time-honored spirit of teamwork. Disguise your true motives and no one will look beyond outward appearances.”
What is the easiest type of manipulation?
“Most people have emotional weaknesses. These provide vulnerabilities that can be used to control them. For example, for people who crave social acceptance, you can play up the camaraderie angle, and then threaten to withdraw your friendship if they don’t submit to your will. Or for people who are afraid of anger, you can demonstrate how upset you become when they ‘betray your trust’ (that is, don’t let you control them).”
Won’t people recognize attempts to control them?
“Not if you use your charm and talk like a visionary. People respect strong leadership and steadfast self-confidence. Subtle behaviors are rarely seen as controlling when the overwhelming evidence is that you are virtuous. Just make sure people primarily see you as virtuous.”
What is the first step in manipulating others?
“Put on a personality mask that will attract others. Seduce them with attention and affection. Praise their performance and promise them future success. Learn their emotional needs, then start meeting those needs. create an emotional bond. Make them emotionally dependent on you. In a typical workplace, you will stand out as a beacon of warmth and friendship. Few will ever discover your unadulterated self-interest.”
What if other people don’t need anything?
“Everyone needs something, though it may take some time to discover needs you can effectively exploit. In the meantime, you can use the darker side of human emotions. Discover their fears and play on them. Use innuendo to make them feel guilty or ashamed. Learn to subtly threaten their well-being.”
What happens after they’re hooked?
“Decide what you want them to do, then formulate a plan. Don’t waver from that plan, even if you become concerned that you are overly harsh or even cruel towards others. Remember that your personal goals always justify the methods necessary to achieve them. From the moment you gain control of others, your every word and action--even your body language--should be focused on causing them to carry out your wishes.”
What if others recognize manipulation?
“Even the best manipulators can be spotted by savvy people. unless you share common goals and methods, these are most likely your enemies. Take quick, strong measures to diminish their power in the company. Isolate them so they don’t influence anyone else. If possible, cause them to get fired or resign, before they get the ear of upper management.”
What if a strong opponent arises?
“You will face strong opponents now and then. But you can still win if they aren’t too powerful in the company and you act quickly to gain the advantage.

there are many strategies you can use. For example, try to win over the main decision-makers: take an interest in their family and hobbies, take them golfing, share in their vices, offer to do their dirty work, promise them big profits. If you’re lucky, they reached their position through bullying others, in which case they will sympathize with your tactics, particularly if they believe you will add to their personal wealth, prestige and power.”

“Alternatively, try to slander your opponent with subtle innuendo, then make sure the rumor reaches the decision-makers. For example, you could tell a top executive that you don’t think your opponent’s ‘past troubles’ should keep him from being promoted, then refuse to answer the executive’s follow-up questions because you ‘don’t want to say anything bad about a friend and fellow worker.’ That way, you look noble as you plant the seeds of doubt.”

“With an extremely powerful opponent, you may need to bargain with him. If you are kindred spirits, you have a good chance at success. Just convince him that by working together, you will both end up ahead. But watch your back when you are in alliance with another manipulator. even better, gain his trust, then destroy his reputation (before he does the same to you).”

His disguise makes him dangerous

Dealing with a master manipulator can be considerably more difficult than dealing with an obvious bully. He is artful in his deceptions, making most people oblivious to his underhanded methods. If you suggest to your co-workers that he is a bully, you will probably be met with blank stares or derisive comments. But the results of his behaviors are just as terrible as any angry, screaming, badgering bully.

Monday, July 30, 2012

Senior Crisis

Here are just a few things that trial attorneys have helped accomplish for seniors. If you don't exercise your rights, you will lose them. If you don't stand up for your rights when people want to take them, you will lose them. Did you know that, on average across the Nation, seniors receive a lower quality of care and are more likely to be victims of negligence than other age groups because they are less likely to bring suit against the health care provider, or nursing home or whomever injures them than younger people.

Below, you will find 8 different areas that cause senior citizens harm. There is widespread abuse of seniors and seniors fall prey to many different unscrupulous people. Some of the things that are done to them are shocking. It frightens me to think about these things knowing that, inevitably, I will be in their shoes one day.

However, I am proud to be part of the profession of trial attorneys who have stepped in to help and done the following:

1. Saved seniors from unneccessary psychotropic drugs that are administered only to "keep them under control";
2. Responded to the over 500 reported strangulation deaths do to poorly designed bedrails and, because of that, the standards have improved - but there is still work to do;
3. Long Term Care Insurers have systematically denied coverage betting that the senior who has it will not complain or will not live long enough to see the complaint through - trial attorneys have smoked out this deception and secured senior's rights.
4. There are over 1.5 million cases of senior abuse each year. Trial Attorneys are seniors best and often only ally. But, we have a long way to go - it is estimated that for every reported case there are five unreported cases.
5. Trial Attorneys have helped seniors recover money they lost in scams.
6. I have worked with several seniors recovering money lost due to unscrupulous investment advisors who sold them inappropriate investments like aggressive stock funds and annuities.
7. While seniors represent only 14% of the population, they suffer 34% of all of the medical negilgence and malpractice injurires - trial attorneys help them recover damages for their injuries.
8. Because of nursing home negligence, many seniors have suffered injuries - trial attorneys help them and help raise the standard in the industry, but there is much left to do.

If you need help, or know a senior who needs help call Attorney Bob Vogel at the Vogel Law Firm 865-357-1949 or email rlvogel@robertvogellaw.com

Saturday, July 28, 2012

Workplace Bullying - Learn the signs

Did you know that about 1/3 of the workers in America will be bullied at some point in their career. There is a lot you can do about it, including taking legal action. If you want to know more, contact Attorney Bob Vogel at rlvogel@robertvogellaw.com - don't be a victim, we can help 865-357-1949 The Vogel Law Firm

Here some warning signs to look for - take a quick inventory and see if you have any of these experiences. Remember, you don't need to suffer from all of them, just one or two, to know that you are being victimized ...

Early Signs of Bullying

You know you've been bullied at work when....

Experiences Outside Work
  • You feel like throwing up the night before the start of your work week
  • Your frustrated family demands that you to stop obsessing about work at home
  • Your doctor asks what could be causing your skyrocketing blood pressure and recent health problems, and tells you to change jobs
  • You feel too ashamed of being controlled by another person at work to tell your spouse or partner
  • All your paid time off is used for "mental health breaks" from the misery
  • Days off are spent exhausted and lifeless, your desire to do anything is gone
  • Your favorite activities and fun with family are no longer appealing or enjoyable
  • You begin to believe that you provoked the workplace cruelty
It feels as bad as it looks.


Experiences At Work

  • You attempt the obviously impossible task of doing a new job without training or time to learn new skills, but that work is never good enough for the boss
  • Surprise meetings are called by your boss with no results other than further humiliation
  • Everything your tormenter does to you is arbitrary and capricious, working a personal agenda that undermines the employer's legitimate business interests
  • Others at work have been told to stop working, talking, or socializing with you
  • You are constantly feeling agitated and anxious, experiencing a sense of doom, waiting for bad things to happen
  • No matter what you do, you are never left alone to do your job without interference
  • People feel justified screaming or yelling at you in front of others, but you are punished if you scream back
  • HR tells you that your harassment isn't illegal, that you have to "work it out between yourselves"
  • You finally, firmly confront your tormentor to stop the abusive conduct and you are accused of harassment
  • You are shocked when accused of incompetence, despite a history of objective excellence, typically by someone who cannot do your job
  • Everyone -- co-workers, senior bosses, HR -- agrees (in person and orally) that your tormentor is a jerk, but there is nothing they will do about it (and later, when you ask for their support, they deny having agreed with you)
  • Your request to transfer to an open position under another boss is mysteriously denied
Source: http://www.workplacebullying.org/individuals/problem/early-signs/

Friday, July 27, 2012

Healthcare Costs soar due to Medical Negligence - 8 negatives big medicine won't tell you and one positive

Here are some statistics your doctor, hospital, insurance company, politician and tort reformer don't want you to know:

1. Over 98,000 people die each year from preventable medical errors. Cost = $29 billion.
2. 2 million hospital patients are infected each year at hospitals - over 90,000 die.
3. Over 1,500 sponges are left in surgery patients each year. One Florida Judge suffered from this; the sponge rotted away his intestines before it was discovered.
4. Five percent of the doctors out there are repeat offenders commiting over 50 % of the medical negligence in the Country - yet other doctors will not come out against them and the AMA protects them - there is no self-policing in the medical profession.
5. Recently, a surgeon with a history of drug abuse and negligence forgot to bring titanium rods to an operating room to be installed in a patients spine. So, he cut up a screw driver and used those pieces instead. The patient ultimately died.
6. Approximately 40 wrong side surgeries (where the doctor literally operates on the wrong part of the patients body) occur each week.
7. 1.5 million people have adverse reactions to their prescriptions every year. 7000 of them will die.
8. The anti-heartburn drug Propulsid killed 300 people but netted Big Pharma $ 1 billion in profits. One victim was three months old. The drug can cause cardiac arrhythmia, a side effect known to the manufacturer, Johnson and Johnson.

These big companies, and the politicians in their pockets, want us, the Trial Lawyers to leave them alone. They claim we interfere with profits and claim that we cost them money that has to passed on the consumers. This is like drug dealers saying that the police interfere with business and cost them money. If they weren't doing the wrong thing in the first place - everyone would leave them alone!

There is a positive they don't want you to know, either: After a number of lawsuits, anesthesiologists, as a group, took an assessment of their practices. As a result, the cases of negligence concerning anesthesiologists were cut in half and the cost of their med mal insurance has gone down.

If you, or anyone you know, has been harmed by a healthcare provider, healthcare product or pharmaceutical, call Attorney Bob Vogel immediately at The Vogel Law Firm, 865-357-1949 or email rlvogel@robertvogellaw.com

Healthcare Improvements because of Trial Lawyers

How the Civil Justice System Protects Patients

While the political debate over medical negligence tends to focus on doctors’ insurance premiums or health care costs, one very important factor is often overlooked: the injured patients.

The Bridgeport Hospital Experience

In the late 1990’s, hospital administrators at Bridgeport Hospital in Bridgeport, Connecticut, were aware of a rash of infections caused by unsanitary conditions. Attempts to identify possible causes and solutions were ignored, partly for financial reasons. Eventually the staph outbreak resulted in a series of deaths. Lawsuits filed as a result uncovered a range of dangerous practices in the hospital, such as doctors not washing their hands before surgery and wearing non-sterile clothes in the operating room.
As a result, Bridgeport Hospital embarked on a $30 million renovation. The hospital upgraded its air filtration system and hand washing stations, and made changes to staff practices, such as a prohibition on doctors wearing scrubs home. These improvements drastically cut infection rates, from 22 percent of cardiac surgery patients to nearly zero.
The injuries patients suffer from preventable medical errors are very real. Some are easily calculated, such as additional medical costs and lost wages, while others are less so, such as quality of life and pain and suffering. The problem with many medical negligence reforms is that they do not seek to prevent medical errors, but merely to shift the burden of these damages to the injured patients themselves.
Caps on non-economic damages are one such “reform” that do nothing to reform medical negligence at all. Non-economic damages compensate patients for very real injuries—such as the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain, or severe disfigurement, or even the loss of a child or a spouse. In the name of a “medical negligence crisis” many states have moved to cap these damages. The effect is often to render many medical negligence cases too expensive to bring to trial, especially for women, children, the elderly and the disabled—those who may not have suffered substantial economic loss. University of Buffalo law professor Lucinda Finley found that such groups received restitution far below average levels, and had a far harder time even getting to court because the expenses of a case often outweighed any potential award. She concluded, “caps benefit insurance companies by increasing their profits, while producing no benefit for doctors, and causing a detriment to injured people, especially women and the elderly.”i The “reform” takes away the restitution, but does nothing to prevent the injuries.
Civil Justice and Patient Safety
Such reforms also take away a powerful deterrent to medical negligence. The civil justice system not only provides patients with their constitutional right to seek restitution for their injuries in a court of law; it also encourages patient safety systems that help prevent negligence before it occurs. Hospitals, such as Connecticut’s Bridgeport Hospital, have reformed dangerous practices because of litigation. In some cases, entire medical fields have been transformed.
More Tort Reform Equals Worse Health Care
Medical negligence lawsuits serve an important role in promoting public health and patient safety. Evidence suggests that the lessening of accountability that comes from reforms such as medical negligence caps can have a detrimental effect on patient safety and health care quality. A study from the American College of Emergency Physicians found that safety improves when injured patients can hold negligent hospitals or physicians accountable. States with aggressive legislation limiting patient access to the legal system are also the states that score lowest in patient safety. Overall, the 10 states doctors claim have the “best liability environment” (more tort reform) have a D+ score for patient safety (just two points above fail). In contrast, the 10 states doctors claim have the “worst liability environment” have a B- for patient safety, above the C+ national average. The 25 states with “best liability environments” all rank below the national average for patient safety.
A study conducted by the National Bureau of Economic Research found that strict tort reforms adversely affect patient outcomes. The researchers found that a 10 percent increase in malpractice costs was associated with a 0.2 percent decrease in mortality rates. The authors concluded that, “while the mortality rates may be quite modest, these seem more likely than not to justify its direct and indirect heath care costs.ii
Similarly, data collected from the non-partisan Commonwealth Fund show health care in states that cap damages in medical negligence cases tends to be of lower quality than health care in states that do not.iii Patients in states that do not cap damages have better access to health care and are more likely to be covered by health insurance than patients living in states with caps on damages. The aforementioned study from Tulane University also found that states with more accountability experienced lower rates of mortality.iv Analysis by Professors David Hyman and Charles Silver also found that insulating providers from liability was detrimental to patient safety, and concluded, “The widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems is unfounded.”v Professors Jonathan Klick and Thomas Stratmann similarly noted medical negligence reforms resulted in lower health care quality and increased infant mortality.vi

Why We Need the Civil Justice System: Health Care >>
i Lucinda M. Finley, Hidden Victims of Tort Reform: Women, Children and the Elderly, 53 Emory L.J. 1263, Summer 2004.
ii Darius N. Lakdawalla and Seth A. Seabury, The Welfare Effects of Medical Malpractice Liability, National Bureau of Economic Research, September 2009.
iii Patient Justice: Patients are Better Off in States Without Barriers to Justice, Texas Watch, January 2008.
iv Praveen Dhankhar, M. Mahmud Khan, Shalini Bagga, supra note 74.
v David Hyman, Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution, University of Texas Public Law & Legal Theory, March 28, 2004.
vi Jonathan Klick, Thomas Stratmann, Does Medical Malpractice Reform Help States Retain Physicians and Does it Matter, December 15, 2005, available at SSRN: http://ssrn.com/abstract=870492.

Cyberbullying - one out of every two kids likely to experience it


Has your teen experienced cyberbullying? The statistics show that almost 1/2 of them will. This kind of bullying can lead to depression and has even been responsible for teen suicide. It is important, as parents, that we are prepared for this and can help our kids through it. Below, you will find some sobering statistics and some suggestions on how to help your teen with this problem.

Hope this helps. If your son or daughter has been the victim of bullying, there are many resources to help. Getting them counseling is important. You may also have some legal actions you can take. Call me or email me, Attorney Bob Vogel, so we can talk about it: rlvogel@robertvogellaw.com or 865-357-1949 at the Vogel Law Firm .

Despite the potential damage of cyber bullying, it is alarmingly common among adolescents and teens. According to Cyber bullying statistics from the i-SAFE foundation:
  • Over half of adolescents and teens have been bullied online, and about the same number have engaged in cyber bullying.
  • More than 1 in 3 young people have experienced cyberthreats online.
  • Over 25 percent of adolescents and teens have been bullied repeatedly through their cell phones or the Internet.
  • Well over half of young people do not tell their parents when cyber bullying occurs.
The Harford County Examiner reported similarly concerning cyber bullying statistics:
  • Around half of teens have been the victims of cyber bullying
  • Only 1 in 10 teens tells a parent if they have been a cyber bully victim
  • Fewer than 1 in 5 cyber bullying incidents are reported to law enforcement
  • 1 in 10 adolescents or teens have had embarrassing or damaging pictures taken of themselves without their permission, often using cell phone cameras
  • About 1 in 5 teens have posted or sent sexually suggestive or nude pictures of themselves to others
  • Girls are somewhat more likely than boys to be involved in cyber bullying
The Cyberbullying Research Center also did a series of surveys that found these cyber bullying statistics:
  • Over 80 percent of teens use a cell phone regularly, making it the most popular form of technology and a common medium for cyber bullying
  • About half of young people have experienced some form of cyber bullying, and 10 to 20 percent experience it regularly
  • Mean, hurtful comments and spreading rumors are the most common type of cyber bullying
  • Girls are at least as likely as boys to be cyber bullies or their victims
  • Boys are more likely to be threatened by cyber bullies than girls
  • Cyber bullying affects all races
  • Cyber bullying victims are more likely to have low self esteem and to consider suicide
Parents and teens can do some things that help reduce the cyber bullying statistics:
  • Talks to teens about cyber bullying, explaining that it is wrong and can have serious consequences. Make a rule that teens may not send mean or damaging messages, even if someone else started it, or suggestive pictures or messages or they will lose their cell phone and computer privileges for a time.
  • Encourage teens to tell an adult if cyber bullying is occurring. Tell them if they are the victims they will not be punished, and reassure them that being bullied is not their fault.
  • Teens should keep cyber bullying messages as proof that the cyber bullying is occurring. The teens' parents may want to talk to the parents of the cyber bully, to the bully's Internet or cell phone provider, and/or to the police about the messages, especially if they are threatening or sexual in nature.
  • Try blocking the person sending the messages. It may be necessary to get a new phone number or email address and to be more cautious about giving out the new number or address.
  • Teens should never tell their password to anyone except a parent, and should not write it down in a place where it could be found by others.
  • Teens should not share anything through text or instant messaging on their cell phone or the Internet that they would not want to be made public - remind teens that the person they are talking to in messages or online may not be who they think they are, and that things posted electronically may not be secure.
  • Encourage teens never to share personal information online or to meet someone they only know online.
  • Keep the computer in a shared space like the family room, and do not allow teens to have Internet access in their own rooms.
  • Encourage teens to have times when they turn off the technology, such as at family meals or after a certain time at night.
  • Parents may want to wait until high school to allow their teens to have their own email and cell phone accounts, and even then parents should still have access to the accounts.
If teens have been the victims or perpetuators of cyber bullying they may need to talk to a counselor or therapist to overcome depression or other harmful effects of cyber bullying.
Sources:
Richard Webster, Harford County Examiner, "From cyber bullying to sexting: What on your kids' cell?" [online]

Source: http://www.bullyingstatistics.org/content/cyber-bullying-statistics.html

Eyewitness Testimony is unreliable especially cross racial identifications...

New Jersey has dared to do something that is sweeping and powerful concerning their justice system: they are going to warn jurors about the unreliability of eyewitness testimony.

Eyewitness testimony, which often contributes to wrongful convictions, has been proven unreliable time and again. Many things affect it - time fades memories, lighting, weather, point of view, clothing, and even race. In fact, cross-racial identification is particularly unreliable.

Cudos to NJ for including these things in their new Jury Instructions. More jurisdictions should adopt this type of policy. It would protect all of our citizens.

If you have been charged with a crime or convicted and need to appeal an unjust conviction, contact Attorney Bob Vogel immediately at the Vogel Law Firm by email at rlvogel@robertvogellaw.com or call 865-357-1949.

New Jersey Court Issues Guidance for Juries About Reliability of Eyewitnesses

Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the “troubling lack of reliability in eyewitness identifications,” it issued instructions on Thursday for judges to give jurors to help them better evaluate such evidence in criminal trials.
A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification.
Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.
And in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.”
“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say.
The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.
“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”
The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.
Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.
The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said.
“These instructions are far more detailed and careful than anything that exists anywhere in the country,” said Brandon L. Garrett, a law professor at the University of Virginia and the author of “Convicting the Innocent,” a book that includes a study of eyewitness misidentifications, which was cited by the New Jersey court in its decision.
“These instructions are far from perfect,” he added, “but they are a remarkable road map for how you explain eyewitness memory to jurors.”
Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which had filed a friend-of-the-court brief in the New Jersey case, called the changes “critically important” and predicted the new instructions would not only affect how juries are instructed, but would also influence trials themselves and the evidence-gathering that precedes them, since both sides will know that such instructions will be given.
“It changes the way evidence is presented by prosecutors and the way lawyers defend,” he said, adding, “The whole system will improve.”
Stuart J. Rabner, the court’s chief justice, who wrote last year’s decision, said by phone that the ultimate issue of whether to trust eyewitness testimony was for a jury to decide.
“We expect juries are going to hear this evidence, so we want to give them the tools with which to evaluate the eyewitness testimony,” he said.
The State Supreme Court also issued a rule that requires law enforcement officers to record details of how an identification was made. Officers must identify anyone, not just law enforcement personnel, with whom a witness has spoken about the identification — before, during or after it occurred — and include a detailed summary of what was said.
“If the record that is prepared is lacking in important details as to what occurred,” the rule says, a judge may declare the identification inadmissible or allow the jury to hear only portions of it.
Jennifer E. Laurin, an assistant professor of law at the University of Texas, who has written about the politics of criminal justice, said the new instructions are important because jurors will now be “more fully educated about our most contemporary understanding about what makes eyewitness identification more or less reliable.”

Bullying - going after the bullies - question about guilt

I'm looking for input from people as if they were jurors at the trial of this case.

I am preparing a lawsuit against a school that allowed systematic bullying of a junior high school boy over a three year period. I mentioned this with more detail in an earlier blog. The bulllying included physical assault as well as verbal abuse and sexual harrassment. I would like to include not only the school but the bullies themselves and their parents.

Here's my question: If you were on a jury and heard convincing evidence that these events occurred, that the parents of the victim were in open communication with the school and the sheriff, would you be willing to hold the bullies and, thereby, their parents, and the sheriff's department, responsible for failing to keep this young man safe and for allowing this course of action to continue for three years if you believed the parents and the sheriff's department knew about it?

 Thanks for taking the time. Please write your comments on the blog and/or feel free to email me, Bob Vogel, at rlvogel@robertvogellaw.com

Thursday, July 26, 2012

Bill Clinton for President - Write Him In - Start the Movement Now!

Who's with me? Let's start a grassroots movement to re-elect Bill Clinton as President. We'll all agree to write him in. He's such a better choice than either of the candidates running now.

Trucking accidents kill over 100K people a year - new, bi-partisan safety measure will help

 Congress is getting lots of bad press lately for its inability to find common ground. Here's a bit of good news for everyone. A bi-partisan Bill incorporated some important safety measures that will help all drivers who share the highways of this Country. Let's hope it will help save some lives.

If you know anyone who was killed or injured in an accident involving a tractor trailer truck, call Bob Vogel at the Vogel Law Firm at 865-357-1949 or email him at rlvogel@robertvogellaw.com

From the press release:

Included in the bi-partisan Bill are key safety changes that have been promoted strongly by safety advocate groups like Road Safe America. Industry leading trade groups like the American Trucking Associations and dozens of their safety minded member companies also support the safety initiatives. “Jobs will be the biggest headline in the mass media and that’s good of course,” said Owings, “but in the trucking industry itself, the mandate for electronic logging of drive time for commercial trucks and the updating of minimal financial requirements for truck companies are huge steps toward safer highways. These rules, along with the new drug and alcohol database, will go a long way towards reducing truck/car fatalities in America.
“This is a great day for safety in America!” said Owings today.

Source - Road Safe America

Tort Reform threatens the safety of you and your family

The chart below is just one example, in just one industry, that demonstrates how lawsuits improved the safety standards of our cars. Trial lawyers labor every day to push industry to higher safety standards and to improve products so that people can operate them with confidence. Tort reform makes it harder for you and I to get access to a court room when a company negligently or knowingly does something that causes damage to people or property. Simply put, that is what the company wants - to be free from accountability. Setting them free enslaves you to a system without recourse. Please, get envolved and look past the rhetoric of the insurance companies who want to collect premiums and never pay.

If you or someone you know has been injured in an accident, at work, or by a product or drug, please contact Bob Vogel at the Vogel Law Firm right away by emailing rlvogel@robertvogellaw.com or calling 865-357-1949. We are hear to help you and protect your rights.

Wednesday, July 25, 2012

Tandem Stroller recalled due to fall and choking hazard

So far, no one has been seriously injured by this product. However, there is a serious fall hazard due to the fact that the basket support scres can come loose. Please read the complete article below.

If you or someone you know has been injured by this product or any other product call Bob Vogel at 865-357-1939 or email rlvogel@robertvogellaw.com at the Vogel Law Firm immediately to protect your rights.

Kolcraft Recalls Contours Tandem Strollers Due to Fall and Choking Hazards


WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of product: Contours Options LT Tandem Strollers

Units: About 5,600

Importer: Kolcraft Enterprises Inc., of Chicago, Ill.

Hazard: The front wheel assembly can break, posing a fall hazard to the child in the stroller. In addition, for strollers manufactured in January and February 2012, the nuts that hold the stroller's basket support screws in place can detach. Detached nuts can pose a choking hazard to young children.

Incidents/Injuries: Kolcraft has received six reports of front caster wheels breaking and two reports of the basket's support screws and nuts detaching. No injuries have been reported.

Description: This recall involves all Contours Options LT tandem strollers with model number ZT012. The model number and date of manufacture are printed on a label found on the rear leg of the stroller. The dual-seat strollers have one mesh basket beneath both seats and were sold in two color schemes; black with red canopies and accents, and gray with yellow canopies and accents. "Options LT" is printed on a bar along the side of the stroller.

Sold at: Burlington Coat Factory and juvenile product specialty stores nationwide and online at Amazon.com, Target.com and other online retailers between February 2012 and July 2012 for about $250.

Manufactured in: China

Remedy: Consumers should immediately stop using the product and contact the company to receive free replacement wheels. Consumers with strollers manufactured in January and February 2012 will also receive replacement nuts for the basket support screws.

Consumer Contact: For additional information, contact Kolcraft toll-free at (800) 453-7673 between 8 a.m. and 6:45 p.m. ET Monday through Thursday, 8 a.m. to 3:30 p.m. ET Friday, or visit the firm's website at www.kolcraft.com



Picture of recalled stroller



---

The U.S. Consumer Product Safety Commission (CPSC) is still interested in receiving incident or injury reports that are either directly related to this product recall or involve a different hazard with the same product. Please tell us about your experience with the product on SaferProducts.gov

CPSC is charged with protecting the public from unreasonable risks of injury or death associated with the use of the thousands of consumer products under the agency's jurisdiction. Deaths, injuries, and property damage from consumer product incidents cost the nation more than $900 billion annually. CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard. CPSC's work to ensure the safety of consumer products - such as toys, cribs, power tools, cigarette lighters, and household chemicals - contributed to a decline in the rate of deaths and injuries associated with consumer products over the past 30 years.

Under federal law, it is illegal to attempt to sell or resell this or any other recalled product.

To report a dangerous product or a product-related injury, go online to: SaferProducts.gov, call CPSC's Hotline at (800) 638-2772 or teletypewriter at (301) 595-7054 for the hearing and speech impaired. Consumers can obtain this news release and product safety information at www.cpsc.gov. To join a free e-mail subscription list, please go to www.cpsc.gov/cpsclist.aspx.

One Death and one near death due to strangulation in Stroller

This Product has been recalled. As you will see from the article below, one child has already died and one was nearly killed because they were trapped between the seat and the tray of this stroller. This is a serious recall, please read the article.

If you or someone you know has been injured by this product or any other product, contact Bob Vogel rlvogel@robertvogellaw.com or call the Vogel Law Firm at 865-357-1949 right away. Time is critical in these matters.

Peg Perego Recalls Strollers Due to Risk of Entrapment and Strangulation; One Child Death Reported


WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission (CPSC), in cooperation with Peg Perego USA Inc., of Fort Wayne, Ind., is announcing a voluntary recall of about 223,000 strollers due to a risk of entrapment and strangulation.

A 6-month-old baby boy from Tarzana, Calif. died of strangulation after his head was trapped between the seat and the tray of his Peg Perego stroller in 2004. Another baby, a 7-month-old girl from New York, N.Y., nearly strangled when her head became trapped between the seat and the tray of her stroller in 2006.

Entrapment and strangulation can occur, especially to infants younger than 12 months of age, when a child is not harnessed. An infant can pass through the opening between the stroller tray and seat bottom, but his/her head and neck can become entrapped by the tray. Infants who become entrapped at the neck are at risk of strangulation.

The recall involves two different older versions of the Peg Perego strollers, Venezia and Pliko-P3, manufactured between January 2004 and September 2007, in a variety of colors. They were manufactured prior to the existence of the January 2008 voluntary industry standard which addresses the height of the opening between the stroller's tray and the seat bottom. The voluntary standard requires larger stroller openings that prevent infant entrapment and strangulation hazards.

Only strollers that have a child tray with one cup holder are part of this recall. Strollers with a bumper bar in front of the child or a tray with two cup holders are not included in this recall.

The following Venezia and Pliko-P3 stroller model numbers that begin with the following numbers are included in this recall. The model number is printed on a white label on the back of the Pliko P-3's stroller seat and on the Venezia stroller's footboard.

Pliko-P3 Stroller
Model Numbers
Venezia Stroller
Model Numbers
IPFR28US34xxxxxxxx IPPF28NA32 IPVA13MU09
IPFT28NA63 IPPF28NA57 IPVA13MU10
IPFT28NA64 IPPF28NA65 IPVA13US09
IPP328MU10 IPPF28NA66 IPVA13US10
IPP328MU09 IPPF28NA67 IPVA13US32
IPP328US09 IPPF28NA68 IPVA13US34
IPP328US10 IPPO28US32 IPVC13NA32
IPP329US10 IPPO28US34 IPVC13NA34
IPPA28US32 IPPO28US62
IPPA28US33 IPPO28US69
IPPA28US34 IPPO28US70
IPPD28NA34 IPPO28US71
"Peg Perego" and "Venezia" or "Pliko-P3" are printed on the side of the strollers.

The strollers were sold at various retailers nationwide, including Babies R Us and Buy Buy Baby from January 2004 through September 2010 for between $270 and $330 for the Pliko P-3 stroller and between $350 and $450 for the Venezia stroller. They were manufactured in Italy.

Consumers should immediately stop using the recalled strollers and contact the firm for a free repair kit. Do not return the stroller to the retailers as they will not be able to provide the repair kit.

For additional information, call Peg Perego at (888) 734-6020 anytime or visit the firm's website at www.PegPeregoUSA.com

CPSC and Peg Perego warn consumers that these strollers may be available on the secondhand market, in thrift stores or at yard sales. Consumers should not buy or sell these recalled strollers until the repair kit is installed.

NOTE: When using a stroller, parents and caregivers are encouraged to always secure children by using the safety harness and never leave them unattended. To learn more about the importance of stroller safety, see CPSC's safety alert: www.cpsc.gov/cpscpub/pubs/5096.pdf

Strollers with one cup holder in the child tray (photos below) are included in this recall.

Picture of recalled Pliko-P3 stroller
Pliko-P3 Strollers




Picture of recalled Venezia stroller
Venezia Strollers



Pliko strollers with a front bumper or a child tray with two (2) cup holders (photos below) are not included in this recall.

Detail of front bumper and child tray with two cup holders on Pliko strollers not included in this recall

Tuesday, July 24, 2012

Tort Reform in Tennessee - Tennesseans better pay attention - Gov. Haslam and the "Tennesseans for Economic Growth" are going after more of your rights this year!


Not satisfied with the rights they stole from you last year, Gov. Haslam, Republican lawmakers and the deceptively named lobby group the "Tennesseans for Economic Growth" are angling againt to steal away more of your rights under the guise of economic growth and the catch phrase frivolous lawsuits. They offer you no real statistics, mind you. And they ignore the fact that we already have a rule in place to protect people from frivolous lawsuits and to sanction lawyers who bring them.

Rule 11 of the Tennessee Rules of Civil Procedure says:
11.02. Representations to Court.
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, --

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denial of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
When a lawyer signs a complaint and files a lawsuit, he is representing that he is not violating Rule 11. If he does, Rule 11 goes on to provide for punisments for the attorney and the plaintiff, including paying the defendant's legal fees.

So, all this nonsense about need laws that make the loser pay is a waste of time. Any civil judge in TN can already punish lawyers and plaintiffs for filing frivolous lawsuits. The reason I mentioned statistics is that there are not many frivolous lawsuits filed in this State, relative to the lawsuits with merit.

What this is all about is protecting corporations, health care and insurance companies from having to face lawsuits if they injure someone or do something that the rest of us are liable for. They simply don't want to have do it. They think they should be exempt from the responsibility that every individual in this society has to every other individual.

They justify it by saying that it promotes business. What they are really saying is that in provides protections for business so they feel free to push the lines of safety. They only care about profits, not people. That is the problem. I've worked for major corporations and I've seen this first hand. It is all about maximizing shareholder profit.

As you know, we are in the worst economic shape we've been in in seventy years. There are more people at the poverty level than there have been in the last half century. Yet, the rich are getting richer every day. Everyday, the gap between the poor, the middle class and the rich class is growing. Everyday, they take your money away from you, because they control the rules of the game.

That's all they are trying to do here, control the rules of the game for their own interests. If they can keep you out of court, they can do what they want, injure people, poison people, put dangerous productts on the market, let bad doctors practice, let drunk drivers drive trucks and run us over. All in the name of "economic growth."

You see, these folks see lawsuits as a form of regulation. And they don't like being told what to do - not by a government - State or Federal, and not by a Court. But, I suggest you think carefully about any company or industry - is there any one that you would trust to "self regulate" - would you believe them if they did? The bankers did a great job of that a few years back, didn't they?

Everyone needs to speak out. If you don't, they are going to take more of your rights away. They did it last year, they are going to do it again. We must fight back!

If you have been injured, wrongfully discharged, victimzed by fraud... call the Vogel Law Firm today 865-357-1949 or email rlvogel@robertvogellaw.com We will answer your legal questions and help you.

More TN tort reform may make the 'loser pay'

Tennessean, February 20, 2012

Group follows landmark law with plan to weed out frivolous lawsuits

Unsatisfied with landmark tort reform legislation that Gov. Bill Haslam and Republican lawmakers successfully enacted last year, business, insurance and health-care interests continue to push for laws that will reduce their exposure to civil lawsuits.
Proponents of the laws say they will help prevent the filing of junk lawsuits and improve Tennessee’s business climate. Opponents say they would improperly shield wrongdoers and close the courthouse doors to all but the very wealthy.
Last year’s legislation capped non-economic damages such as pain and sufferring at $750,000 and punitive damages at $500,000, with some exceptions for cases involving “catastrophic” losses or intentional misconduct, records destruction, or conduct under influence of drugs or alcohol. It also restricted claims that can be brought under the Tennessee Consumer Protection Act.
The Tennessee Civil Justice Act of 2011, as it was called, was enacted over the objection of trial lawyers and consumer advocates.
This year, the same coalition of businesspeople that helped sell the governor’s tort reform package, Tennesseans for Economic Growth, wants more limitations imposed in civil lawsuits, including a handful of bills targeting the losing side in civil cases and litigants who refuse to settle lawsuits.
One bill would require a party who loses a motion to dismiss to pay the litigation costs of the opposing party.
“Loser pays on motions to dismiss is designed to prevent frivolous lawsuits,” said Lee Barfield, a lawyer at Bass, Berry & Sims and lobbyist for the business coalition.
Another bill would require a plaintiff to pay the litigation costs of a defendant if the plaintiff refused a settlement offer from the defendant only to win less than 75 percent of the settlement offer at trial. Such payments would be taken out of, and capped at, a plaintiff's award at trial. The law would similarly punish defendants who refuse a settlement offer if the plaintiff wins more than 125 percent of their settlement offer at trial.
“It’s a two-way street,” Barfield said. “This is designed to get everybody to negotiate in good faith.”
Other lawyers disagree. While Barfield notes that the laws apply to all litigants, Lebanon trial attorney Keith Williams argued that, in practice, the laws will favor deep-pocketed corporations and insurance companies that can afford the risk.
Daniel Clayton, a medical malpractice lawyer in Nashville, said working-class Tennesseans and small businesses, on the other hand, might be too scared to file a lawsuit that has merit because the outcome of litigation is uncertain and they could get stuck paying the litigation fees of a company with an army of lawyers.
“If loser pays passes, it gives incredible power to insurance companies and big business because they can intimidate people and bankrupt people to make it very difficult for a family or small business to hold a corporation or insurance company accountable for wrongdoing,” Clayton said. “It would be the equivalent of the New England Patriots having to pay all the expenses of the New York Giants because they lost the Super Bowl. No one would claim that the New England Patriots shouldn’t have played in the Super Bowl.
“What we are dealing with is much more serious than a football game because it’s lives that have been catastrophically injured.”
Employer liability
Another reform supported by Tennesseans for Economic Growth would shield employers from having to pay punitive damages “when employees or agents cause injuries to others through intentional, reckless, fraudulent or malicious acts committed without the knowledge or complicity of the employer.”
Both Barfield and Clayton used the same example — whether a trucking company should be subject to punitive damages when one of its drivers injures or kills somebody while under the influence of drugs or alcohol — to make their points.
“It’s unfair to hold someone who is innocent liable for punitive damages when the punitive damages are designed to punish the wrongdoer,” Barfield said.
Clayton, however, said holding employers accountable for their workers promotes safety.
“If I know I’m responsible for my employees while they work for me, I’m going to have proper training, oversight and supervision,” he said.
Gary Zelizer, director of governmental affairs at the Tennessee Medical Association, said his organization will continue to push for a bill that would prevent emergency room patients from suing hospitals and doctors for negligence unless they can show “gross negligence.” When mistakes occur, Zelizer said it’s unfair to hold emergency room physicians to the same standard as doctors who know, and have a history with, a patient.
The ER difference
Clayton, however, said the current standard for medical negligence already affords protection to emergency room doctors because negligence is defined as care that is unreasonable or not consistent with standards set by their peers. In other words, Clayton argues that emergency room physicians already are held to a different standard because what is reasonable in an emergency setting is not the same as what would be reasonable in other situations.
“It allows doctors to commit malpractice and not be held accountable,” Clayton said of the proposed law, noting the difficult in proving gross negligence, defined as an act done with reckless disregard or utter unconcern for safety.
The emergency room, loser pays and innocent employer bills all are pending before the judiciary committees in the House and Senate.
Another proposal, which has not been formally presented but is being discussed at the statehouse, would see a constitutional amendment placed on the 2014 ballot. If approved, it would protect the Civil Justice Act from being overturned by the courts by amending the state constitution to specifically allow the General Assembly to cap damages in civil lawsuits.
Zelizer said medical malpractice insurers still don’t want to lower their premiums to hospitals and doctors, even though damage caps are now in place, because similar caps have been overturned by courts in other states.
Williams said that the fact that damage-cap proponents think a constitutional amendment might be necessary proves that the Civil Justice Act was an unconstitutional infringement on Tennesseans’ right to a trial by jury.
David Smith, a spokesman for Haslam, said the governor does not support a constitutional amendment. Smith said that last year’s legislation “was significant in making Tennessee more competitive for new jobs by bringing predictability and certainty to businesses,” but that this year’s proposals are still under review by Haslam.

http://www.tortreform.com/node/994

Monday, July 23, 2012

Speak up for those who cannot speak for themselves...

for the rights of all who are destitute. Speak up and judge fairly, defend the rights of the poor and needy. Proverbs 31:8,9

I can't think of a better reason to be a lawyer.

Bob Vogel
rlvogel@robertvogellaw.com

Sunday, July 22, 2012

Tort Reform - taking your rights away


As a trial lawyer,  I am often asked about "frivolous" lawsuits. Lawsuits that have no basis in fact and are brought out of a desire to harass or try to get a settlement. In my experience, these types of suits are few and far between. Moreover, TN, like every State and the Federal Courts, have mutilple rules in place to limit such lawsuits. Defendants can often win attorney's fees, as well.

Frivolous lawsuits are part of the language of tort reform because everyone knows about one or two "horror" stories. But, most people don't know the facts behind the stories. For example, the Pinto case where Ford chose not to recall and repair the cars because it was cheaper to settle or defend the lawsuits. Or, the McDonalds case, where a jury awarded a significant settlement to someone who burned themselves with hot coffee.

In the first case, I don't think anyone agrees that Ford was wrong. We are on the side of the jury that awarded a huge settlement to the injured people. Who wants to get burned up in a car, especially when the manufacturer could have fixed the problem with a relatively cheap part. The second case is more troubling because there are many unknown facts. Much has come out on both sides. But, the bottom line is, a jury of twelve heard all the facts and decided the manager of the McDonalds was wrong. We need to have faith in the system. Faith to believe that when they saw the second and third degree burns, and the permanent scars, they understood her damages.

When they found out that this particular McDonalds had been cited numerous times for reheating the previous night's coffee to scalding temperatures to save money and reuse it - for profit - the manager knew the problem and did it on purpose, they understood the cause and why there was a need to punish the bad actors. How do you punish a multi-billion dollar corporation? You have to make the punishment sizable enough for them to take notice. Otherwise, they will keep doing the wrong thing and pay off the occasional court battle.

Tort reforms originate from these moments when business finds itself at the losing end because they did something that caused a harm. The history of labor reform is littered with these types of cases. In the end, it is necessary because businesses will not put safety first unless someone makes them. Profits are always the driving force. There is nothing wrong with making a profit - but it should not e at the expense of someone else or deprive someone else of their ability to live a safe and happy life.

Yet, in the end, big business and big medicine send their money out into the pockets of the lobbyists and the politicians to get them to limit your ability to get into court and to be compensated. Tort reform, pure and simply takes away your rights and gives them to big business and big medicine.

 

Fast Facts About Litigation


Proponents of so-called "tort reform" claim that litigation and the fear of litigation hinders job growth and stifles economic development. "Frivolous lawsuits are on the rise," businesses tell Congress, making it hard to compete and difficult to succeed. But studies by the federal government and neutral academic experts prove there is no statistical basis for these claims.

Federal Litigation is Decreasing


  • A 2005 report issued by the U.S. Department of Justice's Bureau of Justice Statistics shows that the number of tort cases resolved in U.S. district courts fell 79 percent between 1985 and 2003.1
  • According to the Administrative Office of the U.S. Courts, tort actions in the U.S. District Courts dropped by 28% from 2002 to 2003.2
  • In addition, over the last five years federal civil filings have not only decreased 8%, but the percentage of civil filings that are personal injury cases has also declined to a mere 18.2%3

State Litigation is Decreasing


  • The Bureau of Justice Statistics (BJS), a division of the Department of Justice, performed a study of civil trials in state courts and found that the number of civil trials dropped by 47% between 1992 and 2001.4
  • The number of tort cases decreased 31.8% during the same period.5
  • The trend in award size was also down. The median inflation-adjusted award in all tort cases dropped 56.3% between 1992 and 2001 to $28,000.6

Lawsuit Filings are Decreasing


  • Tort filings have declined 5% since 1993.7
  • Contract filings, which are more likely to involve businesses than tort cases, rose by 21% over the same period.8
  • Automobile tort filings, which make up the majority of all tort claims, have fallen by 5% since 1993 and by 14% since their high in 1996.9
  • Medical malpractice filings per 100,000 population have fallen by 1% since 1998.10

Damage Awards are Down


  • Median payout for all tort cases dropped 56 percent between 1992 and 2001. According to the U.S. Department of Justice, the trend in damage size for tort cases is down. The median inflation-adjusted payout in all tort (personal injury) cases dropped 56.3% between 1992 and 2001 to $28,000.11

Asbestos Case Filings are Decreasing


  • Civil filings in the U.S. District Courts decreased 3 percent in 2003 to 256,858. This overall decline in filings resulted from an 83 percent reduction in asbestos cases filed.12

Class Action Cases are Rare


  • In its study of civil litigation in state courts, the BJS found only one case out of 11,908 cases that could truly be classified as a class action. That case, Bell v. Farmers Insurance Exchange, involved an insurance company’s attempt to classify claims’ representatives as administrative personnel in order to avoid paying them overtime wages.

Medical Malpractice Filings are Decreasing While Numbers of Doctors are Increasing


  • The number of physicians in the United States has steadily increased from 268 per 100,000 population in 1996 to 285 per 100,000 population in 2002.13
  • From 2000 through 2002, the three most recent years of data available, the rate of physicians has risen in every single state.14
  • Medical malpractice filings per 100,000 population have fallen by 1% since 1998.15

Endnotes

  1. Federal Tort Trials and Verdicts, 2002-03, Cohen, Thomas H., Bureau of Justice Statistics, August 17, 2005.
  2. Judicial Facts and Figures, Table 2.2, Administrative Office of the U.S. Courts
  3. Federal Judicial Caseload Statistics, Judicial Caseload Indicators, 2002 & 2003, Administrative Office of the U.S. Courts
  4. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004
  5. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004 (Study examined state courts in the 75 largest counties in the country)
  6. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004
  7. Examining the Work of State Courts, 2003, at 23, National Center for State Courts, 2004.
  8. Id. At 23.
  9. Id. At 27.
  10. Medical Malpractice Filings per 100,000 Population in 11 and 17 States, 1993-2002, National Center for State Courts, 2004 (unpublished, on file with author).
  11. Civil Trial Cases and Verdicts in Large Counties, 2001, Bureau of Justice Statistics, U.S. Dept. of Justice, 2004]
  12. Judicial Business, at 14, Administrative Office of the U.S. Courts. (In which the United States was not a party)
  13. Health Care State Rankings, 1998 through 2004, "Rate of nonfederal physicians," Morgan Quinto.
  14. Health Care State Rankings, 2000 through 2002, "Rate of nonfederal physicians," Morgan Quinto.
  15. Medical Malpractice Filings per 100,000 Population in 11 and 17 States, 1993-2002, National Center for State Courts, 2004 (unpublished, on file with author).

Updated September 2005

Saturday, July 21, 2012

Protect Your Child From Identity Theft

Imagine finding out when your child is 18 or 20 that when they were small, someone stole their identity. They end up starting out with a bad credit history. They can't get student loans or buy their first car. It will haunt them for a decade or more.

Review this free brochure from the FTC - it is filled with good adivce.

FTC Brochure - How to Protect Your Child From Identity Theft

If you or someone you know has been the victim of fraud, contact Attorney Bob Vogel at rlvogel@robertvogellaw.com

Friday, July 20, 2012

Police withhold DNA evidence for ten years

Evidence that would eventually prove this man's innocence was withheld by the police for ten years. They initially lied and said it had been destroyed. Congratulations to the Innocence Project for thier assistance.

Bob Vogel, The Vogel Law Firm


“LOST” EVIDENCE EXONERATES SEDRICK COURTNEY

Sedrick Courtney after his exoneration hearing.
Sedrick Courtney was wrongfully convicted of an armed robbery and burglary in Tulsa, Oklahoma, and spent 15 years in prison and a year on parole before DNA testing proved his innocence. He first requested DNA testing ten years ago, but the Tulsa Police Department repeatedly claimed the evidence had been destroyed, until finally discovering they still had the evidence in their possession last year.

For more information, click on the link below

Courtney found innocent