Drug, oil, and insurance companies have spent millions of dollars to generate myths about how lawsuits are out of control and responsible for all of America’s ills. The facts tell a much different story.
The number of tort (personal injury) cases has been declining for years. According to the National Center for State Courts, tort cases accounted for just 4.4 percent of all civil cases filed in 2008, and declined by 25 percent between 1999 and 2008. Tort filings in state courts decreased by six percent between 2007 and 2008.
According to the Justice Department under President George W. Bush, the number of federal tort cases resolved in U.S. District Courts fell by 79 percent between 1985 and 2003. In 1985, 3,600 tort trials were decided by a judge or jury in U.S. District Courts. By 2003, that number had dropped to less than 800.1
Additionally, the most recent statistics from the Administration’s Bureau of Justice Statistics show the number of tort trials at the state level has decreased. These statistics were compiled as part of the Bureau’s survey of state civil justice systems in the nation’s largest 75 counties. Among these counties, the number of tort trials decreased 31.8 percent between 1992 and 2001. 2
Attorney Robert Vogel and the attorneys at the Vogel Law Firm provide smart, aggressive representation to their clients. Contact The Vogel Law Firm by calling 865-357-1949 or email rlvogel@robertvogellaw.com for a free consultation concerning your legal issue.
1. "Federal Tort Trials and Verdicts, 2002-03”, Bureau of Justice Statistics, 8/17/05
2. "Civil Trial Cases and Verdicts in Large Counties, 2001”, Bureau of Justice Statistics, 4/04
Thursday, August 30, 2012
Thursday, August 23, 2012
36 Reasons to Thank Labor Unions
Did you know that labor unions made the following 36 things possible?
- Weekends without work
- All breaks at work, including your lunch breaks
- Paid vacation
- Family & Medical Leave Act (FMLA)
- Sick leave
- Social Security
- Minimum wage
- Civil Rights Act/Title VII - prohibits employer discrimination
- 8-hour work day
- Overtime pay
- Child labor laws
- Occupational Safety & Health Act (OSHA)
- 40-hour work week
- Workers’ compensation (workers’ comp)
- Unemployment insurance
- Pensions
- Workplace safety standards and regulations
- Employer health care insurance
- Collective bargaining rights for employees
- Wrongful termination laws
- Age Discrimination in Employment Act of 1967 (ADEA)
- Whistleblower protection laws
- Employee Polygraph Protection Act (EPPA) - prohibits employers from using a lie detector test on an employee
- Veteran's Employment and Training Services (VETS)
- Compensation increases and evaluations (i.e. raises)
- Sexual harassment laws
- Americans With Disabilities Act (ADA)
- Holiday pay
- Employer dental, life, and vision insurance
- Privacy rights
- Pregnancy and parental leave
- Military leave
- The right to strike
- Public education for children
- Equal Pay Acts of 1963 & 2011 - requires employers pay men and women equally for the same amount of work
- Laws ending sweatshops in the United States
Source: http://www.unionplus.org/about/labor-unions/36-reasons-thank-union
Labor Unions are important
Unions are important because most corporations focus on creating profits at the expense of employees.
The nature of work in America is changing. Employers are trying to shed responsibility for providing health insurance, good pension coverage, reasonable work hours and job safety protections. Instead, companies are making workers' jobs and incomes less secure through downsizing, part-timing, contracting out, and sending jobs off-shore.
More than ever, working people need the collective voice and bargaining power unions provide to keep employers from making the workplace look as it did in the early nineteenth century.
Without collective representation, the threat of sweatshop conditions, unlivable wages and 70-hour work weeks may become a part of working America’s future as well as its past.
Today and in the future, labor unions will continue to play an important role our country’s work force and the quality of life for working families. If you are not a union member, you can learn about the benefits of fighting for the middle class in America.
America’s working families need the representation, collective power, pride in work and fair treatment they in the workplace that they deserve.
Union members – workers like you -- benefit from the union’s collective bargaining power to negotiate with employers on their behalf. This basic right gives you as a union member more power than if you tried to negotiate as an individual. There is strength in numbers.
Union members also benefit from having the collective power to go on strike. A strike is when a group of workers stops working either in protest of labor conditions or as a bargaining tool during labor/management negotiations.
The origin of labor unions dates back to the eighteenth century and the industrial revolution in Europe. During this time there was a huge surge of new workers into the workplace that needed representation.
In the United States history of unions, early workers and trade unions played an important part in the role for independence. Although their physical efforts for the cause of independence were ineffective, the ideas they introduced, such as protection for workers, became part of our American culture.
The history of unions in the United States exploded in the nineteenth century with the founding of the National Labor Union (NLU) in 1866. Unlike today’s unions, the NLU was not exclusive to a particular type of worker. And although the NLU crumbled without making significant gains in establishing workers' rights, its founding set an important precedent in our country.
Soon after, the Knights of Labor emerged in 1869. This group’s membership peaked at about 700,000 and its efforts were focused on addressing key issues such opposition to child labor and demands for an eight-hour day.
In the history of America’s trade and labor unions, the most famous union remains the American Federation of Labor (AFL), founded in 1886 by Samuel Gompers. At its pinnacle, the AFL had approximately 1.4 million members. The AFL is credited with successfully negotiating wage increases for its members and enhancing workplace safety for all workers.
The Congress of Industrial Organizations (CIO) under John L. Lewis and the larger AFL federation underwent a huge expansion during World War II. The AFL-CIO merger occurred in 1955.
Union membership and power peaked around 1970. At that time, private sector union membership began a steady decline that continues today. However, membership in public sector unions continues to grow consistently. According to a 2010 Bureau of Labor Statistic report, union membership is over 14 million in the United States and in the public sector has grown to over 37%.
The nature of work in America is changing. Employers are trying to shed responsibility for providing health insurance, good pension coverage, reasonable work hours and job safety protections. Instead, companies are making workers' jobs and incomes less secure through downsizing, part-timing, contracting out, and sending jobs off-shore.
More than ever, working people need the collective voice and bargaining power unions provide to keep employers from making the workplace look as it did in the early nineteenth century.
Without collective representation, the threat of sweatshop conditions, unlivable wages and 70-hour work weeks may become a part of working America’s future as well as its past.
Today and in the future, labor unions will continue to play an important role our country’s work force and the quality of life for working families. If you are not a union member, you can learn about the benefits of fighting for the middle class in America.
America’s working families need the representation, collective power, pride in work and fair treatment they in the workplace that they deserve.
Union members – workers like you -- benefit from the union’s collective bargaining power to negotiate with employers on their behalf. This basic right gives you as a union member more power than if you tried to negotiate as an individual. There is strength in numbers.
More benefits of union membership
- Union employees make an average of 30% more than non-union workers.
- 92% of union workers have job-related health coverage versus 68% of non-union workers.
- Union workers are more likely to have guaranteed pensions than non-union employees.
Union members also benefit from having the collective power to go on strike. A strike is when a group of workers stops working either in protest of labor conditions or as a bargaining tool during labor/management negotiations.
The origin of labor unions dates back to the eighteenth century and the industrial revolution in Europe. During this time there was a huge surge of new workers into the workplace that needed representation.
In the United States history of unions, early workers and trade unions played an important part in the role for independence. Although their physical efforts for the cause of independence were ineffective, the ideas they introduced, such as protection for workers, became part of our American culture.
Labor union history in the U.S. began in the 19th Century
The history of unions in the United States exploded in the nineteenth century with the founding of the National Labor Union (NLU) in 1866. Unlike today’s unions, the NLU was not exclusive to a particular type of worker. And although the NLU crumbled without making significant gains in establishing workers' rights, its founding set an important precedent in our country.
Soon after, the Knights of Labor emerged in 1869. This group’s membership peaked at about 700,000 and its efforts were focused on addressing key issues such opposition to child labor and demands for an eight-hour day.
In the history of America’s trade and labor unions, the most famous union remains the American Federation of Labor (AFL), founded in 1886 by Samuel Gompers. At its pinnacle, the AFL had approximately 1.4 million members. The AFL is credited with successfully negotiating wage increases for its members and enhancing workplace safety for all workers.
The Congress of Industrial Organizations (CIO) under John L. Lewis and the larger AFL federation underwent a huge expansion during World War II. The AFL-CIO merger occurred in 1955.
Union membership and power peaked around 1970. At that time, private sector union membership began a steady decline that continues today. However, membership in public sector unions continues to grow consistently. According to a 2010 Bureau of Labor Statistic report, union membership is over 14 million in the United States and in the public sector has grown to over 37%.
Injured at work? Here's what you need to do.
Workers' Compensation is available for many Tennessee workers who are injured on the job. This article outlines the process that an injured employee must follow in order to begin the process of making a claim.
Remember, your employer will have an attorney representing him during the claims process. You should have an experienced attorney representing you to make sure you get the maximum settlement to which you are entitled. Call Bob Vogel at The Vogel Law Firm at 865-357-1949 for a free consultation or email rlvogel@robertvogellaw.com
How does the claim process work if you are injured on the job?
Employers covered by the Tennessee Workers’ Compensation Act must submit all known or reported injuries or illnesses to their insurance carriers on Tennessee Employer’s First Report of Work Injury or Illness (Form C-20) within one (1) working day of knowledge of the injury or illness. Insurance carriers and self-insured employers must file the Form C-20 with the Division through Electronic Data Interchange (EDI) as soon as possible, but not later than fourteen (14) days after knowledge of the injury or illness.
A workplace injury or illness that causes an employee to receive medical treatment outside of the employer’s premises, their death, their absence from work, or their retention of a permanent impairment must be reported.
OSHA REQUIREMENTS: The "Tennessee First Report of Work Injury" (First Report) is an allowable substitute for the Occupational Safety and Health Administration (OSHA) 301 form "Injury and Illness Incident Report". OSHA requires employers to maintain a copy of either the First Report or the OSHA 301 on site and available to Tennessee Occupational Safety and Health Administration (TOSHA) representatives.
WHEN AN EMPLOYEE IS INJURED, THE EMPLOYER SHOULD:
1.Fill out a Form C-20, as described above, and file the form with its insurer within one (1) working day of knowledge of injury. The claim must be reported to the insurer even if the employer feels the claim is not work-related. The insurance carrier can investigate and deny the claim if appropriate.
2.Provide the injured employee a panel of at least three physicians on Agreement Between Employer/Employee Choice of Physician Form (Form C-42). If the injury is to the back, the panel must include a chiropractor. If specialized treatment is required, the authorized treating physician may refer the employee for such specialized treatment at which time another panel of specialized physicians should be offered. The named-providers should be located in or near the employee's community of residence. The employee has the privilege of choosing one physician from the list. This selected physician becomes the “treating physician.” A Form C-42 designating the chosen physician and signed by the employee is the employer's proof that the employee was offered a choice of physicians. A copy of this completed form must be provided to the employee. The employer must keep the original form on file and provide a copy to the Division of Workers' Compensation upon request.
If the employer does not have a panel of physicians, it should call its insurer and develop one. The employer should post the panel of physicians in a conspicuous place for employees to review.
3.Have the injured employee sign a Medical Waiver and Consent Form (Form C-31). This form allows the employer, insurance carrier, third party administrator, case manager, utilization review agent and Division to communicate with the treating physician about the treatment for the injury.
4.Inform the employee of the name and telephone number of the employer’s workers’ compensation insurance carrier/adjuster.
5.Submit a statement of the employee's wages to their workers’ compensation insurer. The statement should show the gross wages earned by the injured employee each week for the fifty-two (52) weeks prior to the injury. If the injured employee was employed less than 52 weeks, the statement should show all of the weeks worked and gross wages earned each week, including overtime, bonuses, etc.
For more information email rlvogel@robertvogellaw.com
Remember, your employer will have an attorney representing him during the claims process. You should have an experienced attorney representing you to make sure you get the maximum settlement to which you are entitled. Call Bob Vogel at The Vogel Law Firm at 865-357-1949 for a free consultation or email rlvogel@robertvogellaw.com
How does the claim process work if you are injured on the job?
CLAIMS
FIRST REPORT OF WORK INJURY, FORM C20Employers covered by the Tennessee Workers’ Compensation Act must submit all known or reported injuries or illnesses to their insurance carriers on Tennessee Employer’s First Report of Work Injury or Illness (Form C-20) within one (1) working day of knowledge of the injury or illness. Insurance carriers and self-insured employers must file the Form C-20 with the Division through Electronic Data Interchange (EDI) as soon as possible, but not later than fourteen (14) days after knowledge of the injury or illness.
A workplace injury or illness that causes an employee to receive medical treatment outside of the employer’s premises, their death, their absence from work, or their retention of a permanent impairment must be reported.
OSHA REQUIREMENTS: The "Tennessee First Report of Work Injury" (First Report) is an allowable substitute for the Occupational Safety and Health Administration (OSHA) 301 form "Injury and Illness Incident Report". OSHA requires employers to maintain a copy of either the First Report or the OSHA 301 on site and available to Tennessee Occupational Safety and Health Administration (TOSHA) representatives.
WHEN AN EMPLOYEE IS INJURED, THE EMPLOYER SHOULD:
1.Fill out a Form C-20, as described above, and file the form with its insurer within one (1) working day of knowledge of injury. The claim must be reported to the insurer even if the employer feels the claim is not work-related. The insurance carrier can investigate and deny the claim if appropriate.
2.Provide the injured employee a panel of at least three physicians on Agreement Between Employer/Employee Choice of Physician Form (Form C-42). If the injury is to the back, the panel must include a chiropractor. If specialized treatment is required, the authorized treating physician may refer the employee for such specialized treatment at which time another panel of specialized physicians should be offered. The named-providers should be located in or near the employee's community of residence. The employee has the privilege of choosing one physician from the list. This selected physician becomes the “treating physician.” A Form C-42 designating the chosen physician and signed by the employee is the employer's proof that the employee was offered a choice of physicians. A copy of this completed form must be provided to the employee. The employer must keep the original form on file and provide a copy to the Division of Workers' Compensation upon request.
If the employer does not have a panel of physicians, it should call its insurer and develop one. The employer should post the panel of physicians in a conspicuous place for employees to review.
3.Have the injured employee sign a Medical Waiver and Consent Form (Form C-31). This form allows the employer, insurance carrier, third party administrator, case manager, utilization review agent and Division to communicate with the treating physician about the treatment for the injury.
4.Inform the employee of the name and telephone number of the employer’s workers’ compensation insurance carrier/adjuster.
5.Submit a statement of the employee's wages to their workers’ compensation insurer. The statement should show the gross wages earned by the injured employee each week for the fifty-two (52) weeks prior to the injury. If the injured employee was employed less than 52 weeks, the statement should show all of the weeks worked and gross wages earned each week, including overtime, bonuses, etc.
For more information email rlvogel@robertvogellaw.com
Tuesday, August 21, 2012
Gerber Recalls Machetes Due to Laceration Hazard
There have been reports that the machete has broken at the handle from 24 different sources. One resulted in a laceration. These blades were sold individually and as part of a survival package. They were sould throughout the U.S. at Walmart stores. You can get a refund. See the information below.
If you, or someone you know was hurt by this product, or any other product, contact Attorney Robert L. Vogel right away at The Vogel Law Firm by calling 865-357-1949 or email rlvogel@robertvogellaw.com
Gerber Recalls Machetes Due to Laceration Hazard
WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission and Health Canada, 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: Gerber® Bear Grylls Parang Machetes
Units: About 119,000
Importer: Gerber Legendary Blades, of Portland, Ore.
Hazard: A weakness in the area where the handle meets the blade can cause the handle or the blade to break during use, posing a laceration hazard.
Incidents/Injuries: The firm received 24 reports of breakages, including one report of a laceration injury in Canada, which did not involve stitches.
Description: The recalled product is a curved blade machete with an overall length of 19.5 inches and a blade length of 13.5 inches. The handle is a dark gray textured rubber grip with wrist lanyard, orange trim and a stylized "BG" on it. The blade is marked with the "GERBER®" trademark and a stylized Bear Grylls trademark. The machete comes in a black nylon sheath with orange and gray trim. The machetes were sold separately or as one of the products in Gerber's Apocalypse Survival Kit. The model numbers are on the package. Model numbers are: 31-000698, which has "Survival Series" printed on the package; and 31-001507, which was sold only at Walmart. Model number 30-0006010 is for the Apocalypse Survival Kit, which includes a Parang machete among other items in a foldable black cloth case with "GERBER" printed in orange on the inside right.
Sold at: Sporting goods stores nationwide and online from January 2011 through June 2012 for about $43 for the individual Parang machetes and $349 for the Apocalypse Survival Kits.
Manufactured in: China
Remedy: Consumers should immediately stop using the recalled Parang machetes and contact Gerber Legendary Blades to receive a free replacement.
Consumer Contact: For additional information, contact Gerber Legendary Blades toll-free at (877) 314-9130 between 9 a.m. and 5 p.m. PT Monday through Friday, or visit the firm's website at www.gerbergear.com
Note: Health Canada's press release is available at http://cpsr-rspc.hc-sc.gc.ca/PR-RP/recall-retrait-eng.jsp?re_id=1665
 |
 |
---
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.govCPSC 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.
Monday, August 20, 2012
Repugnant, frightening - "Legitimate Rape" is more than just a mis-statement - its an ugly philosophy
The loaded phrase "legitimate rape" goes back almost 30 years. Below you will find an article that provides a brief history of the term and the thought process behind it. Be advised, it is blunt and scary to read. I had no idea that there was an ultra-conservative thought process that was this dangerous. Opinions about abortion aside, this is a repugnant philosophy.
Unfortunately, Akin's comment is reflective of a significant segment of the conservative right. From a political standpoint, this dangerous argument has been used for years in conservative politics. It has been adopted by multiple politicians. Some refer to it as "forceable rape". But, all rape is forceable.
The tragic part of their argument is the absurd idea that victims of "legitimate rape" or "forceable rape" will naturally reject the fetus. In fact, if you follow this argument to its logical conclusion, the thinking takes you here:
if a woman has a baby due to rape, it was not really rape - otherwise, she would not have had the baby.
There are several significant problems, obviously with this conclusion. From a lawyer's perspective, if this was legitimate science, then it could be used as proof either for the prosecution or the defense in a rape trial. If it were true, it would be conclusive evidence of whether or not a rape occurred. I can tell you that it is not. Moreover, the nonsensical science behind it would be rejected in any criminal prosecution as "junk science."
Yet, it is being used to determine the fate of woman's healthcare. Imagine being put on a witness stand during a rape trial. The opposing attorney says:
"So, you claim that my client raped you."
"Yes."
"Yet, you became pregnant."
"Yes."
"So, you conceived."
"Yes."
"M'am, you must know, that if you were truly raped, you would not have conceived."
"No."
"Are you saying these doctors are all wrong?"
"No."
"Well, if these doctors are right, then you must be lying about being raped, correct?"
Etc.
How ridiculous is this idea?
It reminds me of the document used to prosecute witchcraft the "Malleus Maleficarum". It is the same illogic that said that if you dunk a woman whom you suspect is a witch and she dies, she was not a witch.
The tragic part of their argument is the absurd idea that victims of "legitimate rape" or "forceable rape" will naturally reject the fetus. In fact, if you follow this argument to its logical conclusion, the thinking takes you here:
if a woman has a baby due to rape, it was not really rape - otherwise, she would not have had the baby.
There are several significant problems, obviously with this conclusion. From a lawyer's perspective, if this was legitimate science, then it could be used as proof either for the prosecution or the defense in a rape trial. If it were true, it would be conclusive evidence of whether or not a rape occurred. I can tell you that it is not. Moreover, the nonsensical science behind it would be rejected in any criminal prosecution as "junk science."
Yet, it is being used to determine the fate of woman's healthcare. Imagine being put on a witness stand during a rape trial. The opposing attorney says:
"So, you claim that my client raped you."
"Yes."
"Yet, you became pregnant."
"Yes."
"So, you conceived."
"Yes."
"M'am, you must know, that if you were truly raped, you would not have conceived."
"No."
"Are you saying these doctors are all wrong?"
"No."
"Well, if these doctors are right, then you must be lying about being raped, correct?"
Etc.
How ridiculous is this idea?
It reminds me of the document used to prosecute witchcraft the "Malleus Maleficarum". It is the same illogic that said that if you dunk a woman whom you suspect is a witch and she dies, she was not a witch.
Here is the historic background for this term.
Katie J.M. Baker
Yesterday, Missouri Rep. Todd Akin, Republican Senate nominee and member of the House Science, Space and Technology committee, said pregnancy from rape was "really rare" because "if it's a legitimate rape, the female body has ways to try to shut that whole thing down." Akin quickly said that he "misspoke," but he didn't rescind his claims that women have magical sperm-defying ovaries — or that there's a hierarchy when it comes to different "levels" of rape.
If you're unfamiliar with the exciting concept that your uterus can pick and choose between various kinds of rape, don't fret. We have just the guide for you.
In 1988, Republican Pennsylvania Rep. Stephen Freind said the odds that a woman who is raped will get knocked up are "one in millions and millions and millions" because rape causes a woman to "secrete a certain secretion" that kills evil sperm. I don't know about you guys, but my "secretions" are so judicious that they start flowing the second after an Ayn Rand-lover approaches me at a bar, before he can even utter the word "Objectivism." I guess my vag is just highly evolved.
In 1995, North Carolina state Rep. Henry Aldridge told the House Appropriations Committee that "The facts show that people who are raped — who are truly raped — the juices don't flow, the body functions don't work and they don't get pregnant. Medical authorities agree that this is a rarity, if ever." Plan B: If your secretions can't kill evil sperm, you just "dry up" and brush yourself off after you're done being raped, baby-free. No biggie!
Then, there's this famous 1999 Christian Life Resources piece from John C. Willke, a physician who was once president of the National Right to Life Committee, in which he basically just makes shit up:
Williams isn't the only conservative to claim rape is akin to unfortunate weather; in 1997, Bush appointee Federal Judge James Leon Holmes said in an article that "concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami." Because of the juices! And the secretions! And SCIENCE.
The Official Guide to Legitimate Rape
Katie J.M. Baker
Non-Pregnancy Rape
For decades, conservatives have claimed that women can't get pregnant from "legitimate" rape thanks to their wise, all-knowing uteri, psychic "juices" and Spidey Sense-like "secretions." (Hmm, if legislators can applaud our vaginas for being so omniscient, how come they can't let us control them?)In 1988, Republican Pennsylvania Rep. Stephen Freind said the odds that a woman who is raped will get knocked up are "one in millions and millions and millions" because rape causes a woman to "secrete a certain secretion" that kills evil sperm. I don't know about you guys, but my "secretions" are so judicious that they start flowing the second after an Ayn Rand-lover approaches me at a bar, before he can even utter the word "Objectivism." I guess my vag is just highly evolved.
In 1995, North Carolina state Rep. Henry Aldridge told the House Appropriations Committee that "The facts show that people who are raped — who are truly raped — the juices don't flow, the body functions don't work and they don't get pregnant. Medical authorities agree that this is a rarity, if ever." Plan B: If your secretions can't kill evil sperm, you just "dry up" and brush yourself off after you're done being raped, baby-free. No biggie!
Then, there's this famous 1999 Christian Life Resources piece from John C. Willke, a physician who was once president of the National Right to Life Committee, in which he basically just makes shit up:
Finally, factor in what is is certainly one of the most important reasons why a rape victim rarely gets pregnant, and that's physical trauma. Every woman is aware that stress and emotional factors can alter her menstrual cycle. To get and stay pregnant a woman's body must produce a very sophisticated mix of hormones. Hormone production is controlled by a part of the brain that is easily influenced by emotions. There's no greater emotional trauma that can be experienced by a woman than an assault rape. This can radically upset her possibility of ovulation, fertilization, implantation and even nurturing of a pregnancy. So what further percentage reduction in pregnancy will this cause? No one knows, but this factor certainly cuts this last figure by at least 50 percent and probably more.Got it, ladies? If you're normal, you'll never emotionally recover from your rape because it's the "greatest emotional trauma" you can ever experience. But at least you'll be too fucked up to have a baby! If your body allows basic biology to happen inside of it, your rape wasn't aggressive enough. Try, try again?
Bad Weather Rape
In 1990, Texas Republican gubernatorial nominee Clayton Williams told ranchers that victims should take rape in stride and try to enjoy it — like when you have picnic plans but then there's a huge thunderstorm so you decide to see a movie instead and it turns out to be a pretty enjoyable afternoon after all! Yes, Williams literally compared rape to the foggy weather that was affecting his ongoing speech by saying, "If it's inevitable, just relax and enjoy it.''Williams isn't the only conservative to claim rape is akin to unfortunate weather; in 1997, Bush appointee Federal Judge James Leon Holmes said in an article that "concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami." Because of the juices! And the secretions! And SCIENCE.
Politico Rape
Last night, Politico's Dave Catanese tweeted that it was "impossible" to know what Akin really meant to say when he said "legitimate rape" doesn't lead to pregnancy. "Just maybe," Catanese surmised, Akin "didn't really mean 'legitimate.' Perhaps he meant if 'someone IS really raped' or 'a rape really occurs.'" Catanese then got all huffy when people accused him of being a rape apologist, tweeting, "The left is often 1st to shut down debate as "off limits" when it deems so. Aren't these moments supposed to open up a larger debate?"
Catanese sure has a lot of questions! Here are some others: Why is it wrong to think that Akin meant to say "legitimate" when he literally said "legitimate"? Why should we spend a millisecond of our time analyzing Akin's deep thoughts on the "science" behind the female body's ability to "shut down" if she's being raped? Why does Akin deserve the benefit of the doubt at all? Why is a Politico reporter more concerned with all of the mythological crazy ladies out there claiming fake rape than with the fact that a state representative who sits on the House Science committee doesn't understand how pregnancy works?
Yesterday, the Romney-Ryan campaign said the men disagreed with Akin's statement and that "a Romney-Ryan administration would not oppose abortion in instances of rape." Funny, since Ryan was one of the original co-sponsors of the "forcible rape" bill and has said that abortion should be illegal in all cases except when the mother's life is in danger.
Fear of the "Wife who cried rape" is nothing new; as a state legislator, Akin once only voted for an anti-marital-rape law after wondering whether it might be used "in a real messy divorce as a tool and a legal weapon to beat up on the husband."
When the Cosmo article prompted a panel on the dangers of "grey rape," Linda Fairstein, the former chief of the sex crimes unit at the Manhattan district attorney's office, told the New York Times that the concept had been around long before Cosmo decided it was trendy. "Certainly, in the criminal justice system there's no such thing as gray rape," she said. "Gray rape is not a new term and not a new experience. For journalists, it may be, but for those of us who had worked in advocacy or law enforcement, this description of something being in a gray area has been around all the time. It's always been my job in law enforcement to separate out the facts."
The term entered the national consciousness in 1985, when Ms. Magazine published a three-year federally-funded study by psychologist Mary P. Koss on date rape on college campuses. The study found that one in four college women were victims of rape or attempted rape, and that only one in four women had experienced sexual assault that met the legal definition of rape at the time. In the piece, Koss encouraged women to reconsider their past experiences and ask themselves if they had actually consented, even if the person in question was a friend.
When we attach "date" as a modifier to rape, the term becomes quainter and less violent; it implies the attacker and the victim were friendly, making the situation more convoluted. Which it very well may be. But "date rape" is much more common than "stranger rape." According to RAINN, the Rape, Abuse and Incest National Network, approximately two-thirds of rapes were committed by someone known to the victim, 73 percent of sexual assaults were perpetrated by a non-stranger, and 38 percent of rapists are a friend or acquaintance.
Why do we feel the need to get so specific when a rape is "date" rape if that's the unfortunate norm?
(And here's some additional info for Scientist Akin: according to a 1996 article in the American Journal of Obstetrics and Gynecology, "among adult women an estimated 32,101 pregnancies result from rape each year." According to Planned Parenthood, more than five percent of all rapes result in pregnancy.)
Let's stop differentiating between different types of rape as if they were different flavors at an ice cream shop. Politicians need to get over the pervasive fear that adopting a zero-tolerance attitude towards rape means that people will be able to disingenuously "cry rape" if they're having a bad day. That's not going to happen. You know what's way more dangerous? Allowing legislators like Akin to make declarative statements that are unarguably false. If you don't know how basic biology works, you shouldn't be able to hold a government position that gives you real power over the bodies of millions of women.
Sure, it would be a hell of a lot easier if uteri were able to define rape for us. But they can't, and it's insane to pretend otherwise.
Forcible Rape and/or Assault Rape
Last year, Ye Grand Protector of All Womenfolk Rep. Akin joined forces with GOP VP candidate Paul Ryan to co-sponsor the "No Taxpayer Funding for Abortion Act", which introduced the awesome new term "forcible rape" into our vernacular. Federal funds can only be used to pay for abortion in cases when a woman is raped; the "No Taxpayer Funding for Abortion Act" sought to chip away at that exception by clarifying that only pregnancies resulting from "forcible rape" would qualify for federally funded abortions. The true meaning of "forcible rape" was never clearly defined, and the term was eventually removed from the bill.Yesterday, the Romney-Ryan campaign said the men disagreed with Akin's statement and that "a Romney-Ryan administration would not oppose abortion in instances of rape." Funny, since Ryan was one of the original co-sponsors of the "forcible rape" bill and has said that abortion should be illegal in all cases except when the mother's life is in danger.
Marriage Rape, aka "JK LOL Doesn't Happen!" Rape
Earlier this year, Idaho Senator Chuck Winder made good use of his time on the Senate floor when he warned everyone about those wily, dangerous housewives who didn't get the memo that putting a ring on it = no rapes forever and ever. "I would hope that when a woman goes into a physician, with a rape issue, that that physician will indeed ask her about perhaps her marriage, was this pregnancy caused by normal relations in a marriage, or was it truly caused by a rape," he said.Fear of the "Wife who cried rape" is nothing new; as a state legislator, Akin once only voted for an anti-marital-rape law after wondering whether it might be used "in a real messy divorce as a tool and a legal weapon to beat up on the husband."
"Rape" Rape
Remember when Whoopi Goldberg said Roman Polanksi didn't, like, "rape-rape" a teenage girl? "I know it wasn't rape-rape," she said on The View. "It was something else but I don't believe it was rape-rape. He went to jail and and when they let him out he was like 'You know what this guy's going to give me a hundred years in jail I'm not staying, so that's why he left.'" That "something else" that isn't "rape rape" is a lot like....Gray Rape
Young readers might think that "gray rape" has something to do with a certain popular BDSM bestseller, but it's a term that's officially been around since the '90s. Most people think that Cosmopolitan invented the term "gray rape" in 2007, when Laura Session Stepp defined it as "sex that falls somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what." But Katie Roiphe infamously claimed "There is a gray area in which one person's rape may be another's bad night" in her 1994 book The Morning After: Fear, Sex and Feminism.When the Cosmo article prompted a panel on the dangers of "grey rape," Linda Fairstein, the former chief of the sex crimes unit at the Manhattan district attorney's office, told the New York Times that the concept had been around long before Cosmo decided it was trendy. "Certainly, in the criminal justice system there's no such thing as gray rape," she said. "Gray rape is not a new term and not a new experience. For journalists, it may be, but for those of us who had worked in advocacy or law enforcement, this description of something being in a gray area has been around all the time. It's always been my job in law enforcement to separate out the facts."
Date Rape
"Date" rape is the opposite of "stranger" rape, which is everyone's favorite kind of rape, because if the attacker is a crazy inhuman savage jumping out of the bushes and never to be seen again (unless shot to death by a nearby princely fellow carrying a gun specifically for cut-and-dry situations such as these), there's no need to acknowledge rape culture or try and educate people about complicated issues of consent.The term entered the national consciousness in 1985, when Ms. Magazine published a three-year federally-funded study by psychologist Mary P. Koss on date rape on college campuses. The study found that one in four college women were victims of rape or attempted rape, and that only one in four women had experienced sexual assault that met the legal definition of rape at the time. In the piece, Koss encouraged women to reconsider their past experiences and ask themselves if they had actually consented, even if the person in question was a friend.
When we attach "date" as a modifier to rape, the term becomes quainter and less violent; it implies the attacker and the victim were friendly, making the situation more convoluted. Which it very well may be. But "date rape" is much more common than "stranger rape." According to RAINN, the Rape, Abuse and Incest National Network, approximately two-thirds of rapes were committed by someone known to the victim, 73 percent of sexual assaults were perpetrated by a non-stranger, and 38 percent of rapists are a friend or acquaintance.
Why do we feel the need to get so specific when a rape is "date" rape if that's the unfortunate norm?
Rape
RAINN defines rape as "forced sexual intercourse, including vaginal, anal, or oral penetration. Penetration may be by a body part or an object." To clarify: "Rape victims may be forced through threats or physical means. In about 8 out of 10 rapes, no weapon is used other than physical force. Anyone may be a victim of rape: women, men or children, straight or gay."(And here's some additional info for Scientist Akin: according to a 1996 article in the American Journal of Obstetrics and Gynecology, "among adult women an estimated 32,101 pregnancies result from rape each year." According to Planned Parenthood, more than five percent of all rapes result in pregnancy.)
Let's stop differentiating between different types of rape as if they were different flavors at an ice cream shop. Politicians need to get over the pervasive fear that adopting a zero-tolerance attitude towards rape means that people will be able to disingenuously "cry rape" if they're having a bad day. That's not going to happen. You know what's way more dangerous? Allowing legislators like Akin to make declarative statements that are unarguably false. If you don't know how basic biology works, you shouldn't be able to hold a government position that gives you real power over the bodies of millions of women.
Sure, it would be a hell of a lot easier if uteri were able to define rape for us. But they can't, and it's insane to pretend otherwise.
Malpractice Lawsuits are Tiny Percentate of Health Care Costs
Debunking the Myth that health care costs are high because of Med Mal Lawsuits - Truth is, Malpractice a Tiny Percentage of Health Care Costs
One of the principal myths surrounding medical malpractice is its effect on overall health care costs. Medical malpractice is actually a tiny percentage of health care costs, in part because medical malpractice claims are far less frequent than many people believe.
In 2004, the CBO calculated malpractice costs amounted to “less than 2 percent of overall health care spending. Thus, even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small.” i
Five years later, the CBO revisited the issue of medical negligence costs. This time, they attempted to account for the indirect costs of medical negligence, mainly the idea that doctors order extra tests to avoid liability. Again, the CBO found that tort reform would only save 0.5 percent of all health care costs.ii
Other authorities have also found that the direct costs associated with medical negligence are a tiny fraction of health care costs. According to the National Association of Insurance Commissioners (NAIC), the total amount of money spent defending claims and compensating victims of medical negligence in 2010 was $5.8 billion, or just 0.3 percent of the $2.6 trillion spent on health care in the U.S. that same year.iii
Other authorities have also found that the direct costs associated with medical negligence are a tiny fraction of health care costs. According to the National Association of Insurance Commissioners (NAIC), the total amount of money spent defending claims and compensating victims of medical negligence in 2010 was $5.8 billion, or just 0.3 percent of the $2.6 trillion spent on health care in the U.S. that same year.iii
i Limiting Tort Liability for Medical Malpractice, Congressional Budget Office, January 8, 2004; for the purposes of the chart, Personal Health Care Expenditures is taken from the Centers of Medicare and Medicaid Services and is $1.88 trillion (http://www.cms.hhs.gov/NationalHealthExpendData/downloads/tables.pdf - tables 1 & 2), and total spent on medical malpractice insurance is Tillinghast Towers Perrin (2008 Update on U.S. Tort Cost Trends, Tillinghast Towers Perrin, 2008); The CBO has reaffirmed its earlier findings that tort reform does not lower health care costs. In 2008, the agency found that “the effect [of tort limits] would be relatively small— less than 0.5 percent of total health care spending.”- Budget Options Volume 1 Health Care, Congressional Budget Office, December 2008.
ii Bernard Black, Charles Silver, David A. Hyman, and William M. Sage, Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, Journal of Empirical Legal Studies, 2005.
iii Personal Health Care Expenditures taken from the Centers of Medicare and Medicaid Services and is $2.6 Trillion. Total spent on paying and defending medical malpractice claims from National Association of Insurance Commissioners (Profitability By Line By State 2010, National Association of Insurance Commissioners (NAIC), 2011), and is $5.8 Billion. Percentages may not round up due to both rounding and the fact that CMS does not regard medical negligence costs as health care costs.
Source: http://www.justice.org/cps/rde/xchg/justice/hs.xsl/8686.htm
ii Bernard Black, Charles Silver, David A. Hyman, and William M. Sage, Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, Journal of Empirical Legal Studies, 2005.
iii Personal Health Care Expenditures taken from the Centers of Medicare and Medicaid Services and is $2.6 Trillion. Total spent on paying and defending medical malpractice claims from National Association of Insurance Commissioners (Profitability By Line By State 2010, National Association of Insurance Commissioners (NAIC), 2011), and is $5.8 Billion. Percentages may not round up due to both rounding and the fact that CMS does not regard medical negligence costs as health care costs.
Source: http://www.justice.org/cps/rde/xchg/justice/hs.xsl/8686.htm
Saturday, August 18, 2012
Preventable Medical Errors - The Sixth Biggest Killer in America
If you have been injured by a medical error, or if a loved one was killed or injured due to a medical error, contact Attorney Bob Vogel at The Vogel Law Firm by calling 865-357-1949 or email him at rlvogel@robertvogellaw.com - there is no obligation and the consult is free.
Preventable Medical Errors – The Sixth Biggest Killer in America
Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. Any discussion of medical negligence that does not involve preventable medical errors ignores this fundamental problem. And while some interested parties would prefer to focus on doctors’ insurance premiums, health care costs, or alternative compensation systems—anything other than the negligence itself—reducing medical errors is the best way to address all the related problems. Preventing medical errors will lower health care costs, reduce doctors’ insurance premiums, and protect the health and well-being of patients.
The Institute of Medicine’s (IOM) seminal study of preventable medical errors estimated as many as 98,000 people die every year at a cost of $29 billion.1 If the Centers for Disease Control were to include preventable medical errors as a category, these conclusions would make it the sixth leading cause of death in America. 2Further research has confirmed the extent of medical errors. The Congressional Budget Office (CBO) found that there were 181,000 severe injuries attributable to medical negligence in 2003.3 The Institute for Healthcare Improvement estimates there are 15 million incidents of medical harm each year.4 HealthGrades, the nation’s leading healthcare rating organization, found that Medicare patients who experienced a patient-safety incident had a one-in-five chance of dying as a result.5
In the decade since the IOM first shined a light on the dismal state of patient safety in American hospitals, many proposals for improvement have been discussed and implemented. But recent research indicates that there is still much that needs to be done. Researchers at the Harvard School of Medicine have found that even today, about 18 percent of patients in hospitals are injured during the course of their care and that many of those injuries are life-threatening, or even fatal.6 The Office of the Inspector General of the U.S. Department of Health and Human Services found that one in seven Medicare patients are injured during hospital stays and that adverse events during the course of care contribute to the deaths of 180,000 patients every year.7
Even errors that the government and private health insurers have classified as “never events,” events that should never happen in a hospital, are occurring at alarming rates. Recently the Joint Commission Center on Transforming Healthcare reported that as many as 40 wrong site, wrong side and wrong patient procedures happen every week in the U.S.8 Similarly, researchers in Colorado recently found that surgical “never” events, such as operating on the wrong patient or wrong site or performing the wrong procedure, are occurring all too frequently.9
Yet despite these numbers, the American public remains unaware of just how pervasive the problem is. Even though one in three Americans say that they or a family member has experienced a medical error, and one in five say that a medical error has caused either themselves or a family member serious health problems or death, surveys show that Americans vastly underestimate the extent of medical errors.10 About half of respondents believe the annual death total from medical errors to be 5,000 or less—nearly 20 times lower than the IOM’s estimate.
People have been led to believe that there are hundreds of thousands of medical negligence lawsuits every year and only a handful of genuine medical errors. In reality, the reverse is true. There are very few medical negligence lawsuits, and hundreds of thousands dying from preventable medical errors. As University of Pennsylvania law professor Tom Baker puts it, “We have an epidemic of medical malpractice, not of malpractice lawsuits.”11
Much of the discussion surrounding medical negligence revolves around costs, whether it be the cost of physicians’ insurance or the cost to health care. While these are the subject of much debate and acrimony, the potential savings from the elimination of medical errors are undeniable.
Dollars better spent on patient safety
The Center for Medicare & Medicaid Services (CMS) has, in recent years, recognized the potential for financial savings by reducing medical errors. CMS has stopped paying for hospital and practitioner errors, and thus created a financial incentive for hospitals to embrace patient safety. After evaluating a number of billable hospital-acquired conditions, CMS and the CDC decided on eight expensive but “reasonably preventable” secondary conditions that would not be reimbursed by Medicare, and could not be billed to patients.12 Previously, Medicare rewarded hospital errors with larger reimbursements, by paying them an extra amount to treat various preventable complications that developed as a result of hospital negligence.
The new rules, which went into effect in 2008, are expected to save taxpayers at least $21 million annually and will encourage hospitals to take steps to avoid “reasonably preventable” hospital acquired conditions.13 Private insurers like Blue Cross/Blue Shield Association and Aetna have also implemented similar policies not to reimburse medical providers for care related to problems or complications that should not occur in the normal course of hospitalization.14
1 To Err Is Human: Building a Safer Health System, Institute of Medicine, 1999
2 Deaths/Mortality, 2005, National Center for Health Care Statistics at the Centers for Disease Control, viewed at http://www.cdc.gov/nchs/fastats/deaths.htm.
3 Key Issues, Congressional Budget Office, December 2008, 150-154.
4 Institute for Healthcare Improvement: Campaign – FAQs, Institute for Healthcare Improvement, http://www.ihi.org/IHI/Programs/Campaign/Campaign.htm?TabId=6.
5 The Fifth Annual HealthGrades Patient Safety in American Hospitals Study, HealthGrades, April 2008.
6 Christopher P. Landrigan et al., Temporal Trends in Rates of Patent Harm Resulting from Medical Care, New England Journal of Medicine, November 25, 2010.
7 Daniel R. Levinson, Adverse Events in Hospitals: National Incidence Among Medicare Beneficiaries, Department of Health and Human Services Office of the Inspector General, November 2010.
8 Wrong Site Surgery Project, Joint Commission Center for Transforming Healthcare.
9 Philip F. Stahel et al., Wrong-Site and Wrong-Patient Procedures in the Universal Protocol Era, Archives of Surgery, 2010;145(10):978-984.
10 National Survey on Consumers' Experiences With Patient Safety and Quality Information, Kaiser Family Foundation, November 17, 2004.
11 Tom Baker, The Medical Malpractice Myth, 2005.
12 Those medical complications not covered were: Object Left in Surgery (Serious Preventable Event); Air Embolism (Serious Preventable Event); Blood Incompatibility (Serious Preventable Event); Catheter-Associated Urinary Tract Infections Pressure Ulcers (Decubitus Ulcers); Vascular Catheter-Associated Infection Surgical Site Infection Hospital Acquired Injuries, including fractures, dislocations, intracranial injury, crushing injury, and burns. See 72 F.R. 47201.
1372 F.R. 47201.
14 Vanessa Fuhrmans, Insurers Stop Paying for Care Linked to Errors, Wall Street Journal, January 15, 2008.
Reprinted from the following source: http://www.justice.org/cps/rde/xchg/justice/hs.xsl/8677.htm
2 Deaths/Mortality, 2005, National Center for Health Care Statistics at the Centers for Disease Control, viewed at http://www.cdc.gov/nchs/fastats/deaths.htm.
3 Key Issues, Congressional Budget Office, December 2008, 150-154.
4 Institute for Healthcare Improvement: Campaign – FAQs, Institute for Healthcare Improvement, http://www.ihi.org/IHI/Programs/Campaign/Campaign.htm?TabId=6.
5 The Fifth Annual HealthGrades Patient Safety in American Hospitals Study, HealthGrades, April 2008.
6 Christopher P. Landrigan et al., Temporal Trends in Rates of Patent Harm Resulting from Medical Care, New England Journal of Medicine, November 25, 2010.
7 Daniel R. Levinson, Adverse Events in Hospitals: National Incidence Among Medicare Beneficiaries, Department of Health and Human Services Office of the Inspector General, November 2010.
8 Wrong Site Surgery Project, Joint Commission Center for Transforming Healthcare.
9 Philip F. Stahel et al., Wrong-Site and Wrong-Patient Procedures in the Universal Protocol Era, Archives of Surgery, 2010;145(10):978-984.
10 National Survey on Consumers' Experiences With Patient Safety and Quality Information, Kaiser Family Foundation, November 17, 2004.
11 Tom Baker, The Medical Malpractice Myth, 2005.
12 Those medical complications not covered were: Object Left in Surgery (Serious Preventable Event); Air Embolism (Serious Preventable Event); Blood Incompatibility (Serious Preventable Event); Catheter-Associated Urinary Tract Infections Pressure Ulcers (Decubitus Ulcers); Vascular Catheter-Associated Infection Surgical Site Infection Hospital Acquired Injuries, including fractures, dislocations, intracranial injury, crushing injury, and burns. See 72 F.R. 47201.
1372 F.R. 47201.
14 Vanessa Fuhrmans, Insurers Stop Paying for Care Linked to Errors, Wall Street Journal, January 15, 2008.
Reprinted from the following source: http://www.justice.org/cps/rde/xchg/justice/hs.xsl/8677.htm
Health Care Bill takes away patients' rights!
This year, the U.S. House of Representatives passed a measure that will take away your rights if you are a healthcare patient. If you are injured, the act will limit your ability to exercise your right to a jury trial and seek compensation for that injury. This is what Tort Reform does - it takes away your rights. The purpose of tort reform is to protect the profits of the insurance companies. It does nothing to help doctors or hospitals.
A measure like this will lower the quality of care patients receive. It will also increase the number of deaths and injuries sufffered by people due to negligent care.
The U.S. House of Representatives passed the "Help Efficient, Accessible, Low Cost, Timely, Health Care (HEALTH) Act of 2011" (H.R. 5) on March 22, 2012. This bill aims to take away the legal rights of injured patients, removing any incentives to improve patient safety, and leave people at risk for more injures from negligent care. This bill would impose one-size-fits-all caps on damages, not just when injured by medical negligence, but also defective drugs, medical devices, or abuse suffered in nursing homes.
Washington, DC—The following is a statement from American Association for Justice (AAJ) President Gibson Vance in response to H.R. 5, a “medical liability reform” bill that was introduced late yesterday in the U.S. House of Representatives:
“After repealing a bill that provided health insurance to over 30 million Americans, the next proposal from the new House leadership is to take away the legal rights of injured patients, remove any incentive to improve safety, and leave people at risk for more injuries from negligent care. This is the most perverse form of legislating imaginable.
“Ten years ago, the Institute of Medicine found that as many as 98,000 people die every year from preventable medical errors. Recent studies have confirmed the problem is only getting worse.
“This bill will impose severe, one-size-fits-all caps on damages that injured patients can seek – not just when injured by medical negligence, but also by defective drugs, medical devices, or abuse suffered in nursing homes. It even extends this cap to health care providers that intentionally harm or kill patients, as well as insurance companies that refuse to pay just claims for medical bills.
“The bill is beyond extreme. Its authors should focus on real measures that will improve patient safety, not provide welfare to drug and insurance companies that stand to gain the most from this proposal.
“By removing legal accountability, attention to safety will go down and more people will suffer injuries and death from negligent care. Congress should put patient safety first.”
Opposition to H.R. 5 has ranged from patient safety groups (http://www.citizen.org/documents/Letter-opposing-HR5-20110131.pdf) to conservative legal scholars and elected officials (http://www.fightingforjustice.org/content/constitutional-conservatives-federal-tort-reform-violates-states%E2%80%99-rights-and-10th-amendment). The Institute of Medicine found that up to 98,000 people die every year from preventable medical errors, which is the sixth leading cause of death. Tort reform protects negligent health providers and takes away the rights of injured patients.
A measure like this will lower the quality of care patients receive. It will also increase the number of deaths and injuries sufffered by people due to negligent care.
The U.S. House of Representatives passed the "Help Efficient, Accessible, Low Cost, Timely, Health Care (HEALTH) Act of 2011" (H.R. 5) on March 22, 2012. This bill aims to take away the legal rights of injured patients, removing any incentives to improve patient safety, and leave people at risk for more injures from negligent care. This bill would impose one-size-fits-all caps on damages, not just when injured by medical negligence, but also defective drugs, medical devices, or abuse suffered in nursing homes.
Washington, DC—The following is a statement from American Association for Justice (AAJ) President Gibson Vance in response to H.R. 5, a “medical liability reform” bill that was introduced late yesterday in the U.S. House of Representatives:
“After repealing a bill that provided health insurance to over 30 million Americans, the next proposal from the new House leadership is to take away the legal rights of injured patients, remove any incentive to improve safety, and leave people at risk for more injuries from negligent care. This is the most perverse form of legislating imaginable.
“Ten years ago, the Institute of Medicine found that as many as 98,000 people die every year from preventable medical errors. Recent studies have confirmed the problem is only getting worse.
“This bill will impose severe, one-size-fits-all caps on damages that injured patients can seek – not just when injured by medical negligence, but also by defective drugs, medical devices, or abuse suffered in nursing homes. It even extends this cap to health care providers that intentionally harm or kill patients, as well as insurance companies that refuse to pay just claims for medical bills.
“The bill is beyond extreme. Its authors should focus on real measures that will improve patient safety, not provide welfare to drug and insurance companies that stand to gain the most from this proposal.
“By removing legal accountability, attention to safety will go down and more people will suffer injuries and death from negligent care. Congress should put patient safety first.”
Opposition to H.R. 5 has ranged from patient safety groups (http://www.citizen.org/documents/Letter-opposing-HR5-20110131.pdf) to conservative legal scholars and elected officials (http://www.fightingforjustice.org/content/constitutional-conservatives-federal-tort-reform-violates-states%E2%80%99-rights-and-10th-amendment). The Institute of Medicine found that up to 98,000 people die every year from preventable medical errors, which is the sixth leading cause of death. Tort reform protects negligent health providers and takes away the rights of injured patients.
Worker's Compensation does not limit recovery for inentional injuries
If you are injured on the job due to negligence, then only the Worker's Compensation Law will provide you with a way to get compensation. According to Tennessee Code Annotated section 50-6-108, "the Workers' Compensation Law provides employees with their exclusive remedy against employers for work-related injuries." Blair v. Allied Maint. Corp., 756 S.W.2d 267, 270 (Tenn.Ct.App.1988).
But, what if you are injured because of someone else's intentional act. In other words, what if you are punched or grabbed or shaken by a fellow employee or a supervisor or manager? Well, your employer is still protected from a lawsuit, unless your employer is the one who intentionally harmed you. Employees are precluded from suing employers at common law for their injuries unless the employee can show that the employer intentionally injured the employee. Blair, 756 S.W.2d at 270. "A co-employee's intentional tort will not give rise to a cause of action against the employer." Blair, 756 S.W.2d at 270.
However, the Workers' Compensation Law does not place the same limitations on a common law claim against a co-employee. Blair, 756 S.W.2d at 270. In Blair, the Court determined that the Workers' Compensation Law does not bar an employee's intentional tort claim against a supervisor. 756 S.W.2d at 270-271. This means that if you are injured as a result of a co-employee's direct actions, if they intended to hurt you or acted in such a way as to bring about the harm, then you may sue the other employee, supervisor or manager.
In a recent case, the Plaintiff alleged that the Defendant committed the torts of assault, battery, negligence and negligent infliction of emotional distress during the November 23, 2000, encounter. It is well settled that in Tennessee that assault and battery, if proven, are intentional torts, Pendleton v. Metro. Gov't of Nashville and Davidson County, 2005 Tenn. App. LEXIS 558, No. M2004-01910-COA-R3-CV, 2005 WL 2138240, at *1 (Tenn.Ct.App. Sept. 1, 2005), therefore, the Plaintiff's claims for assault and battery against the defendant were are not barred as a matter of law under the Workers' Compensation Law. However, negligent torts are barred.
Defendants argued that because the trial court found that Plaintiff suffered a work-related injury compensable under the Workers' Compensation Law, the court implicitly determined that the Plaintiff's injuries arose accidentally in the course and scope of employment. This is a tricky argument. According to Defendants, the implicit finding that Plaintiff's injuries arose accidentally precludes individual recovery against Mr. Bidwell since an employee may only maintain a tort action against a co-employee who intentionally injures that employee. Fortunately, non only is that not the law in Tennessee, Tennessee holds exactly the opposite doctrine.
The Supreme Court of Tennessee addressed this issue in Williams v. Smith, 222 Tenn. 284, 435 S.W.2d 808 (Tenn.1968), where a former employee filed a common law action for injuries sustained as a result of an assault by a co-employee. The Court determined that the employee's common law action against the co-employee was not barred under the fiction created by the Workers' Compensation Law that the employee-victim of an intentional assault sustains an "accident" during a co-employee's intentional tort. Williams, 435 S.W.2d at 811. The Court explained:
[W]hat we have to decide is whether or not the fiction, that the employee-victim of an intentional, deliberate assault has sustained an accident because it was unexpected and unintended on his part, can be availed of by an assaulting co-employee to compel his victim to proceed under the Act. And we think the assaulter cannot so compel the victim, because the fiction was created and is allowed to operate solely because this is the fair, right and just [*10] thing to do. It is a conclusion based entirely on the effect on the assaulted employee. So that it would be a travesty on justice, indeed, to make this fiction operate in favor of one whose act has been wilful and malicious and intentionally harmful and is in no conceivable sense an 'accident'.Williams, 435 S.W.2d at 811. Here's what the Court means.
We hold that while the fiction of accident is available to the assaulted employee to sustain a recovery under the Workmen's Compensation Act, this being just and right, this fiction created for the benefit of the injured employee is not available to the intentional assaulter to require that the injured employee proceed under the Workmen's Compensation Act, so to do being unfair and unjust.
When the Court says that the "fiction" of an accident was created, the Court is saying that, for the purpose of claiming compensation under the Worker's Compensation Act, it is necessary for the injured employee to assert that an accident happened at work. This is so because the law demands it. But, just because the law demands it, that does not mean that the employee has waived any right because he was harmed by a willful, malicious or intentional act.
What this means to employees injured by the intentional acts of a co-employee, supervisors, managers or even business owners, is that they can accept worker's compensation for their loss of work, medical bills, etc. But, they can also sue the person who injured them on purpose and recover from them because they intentionally harmed the worker. If it were not so, then someone who intentionally assaulted an employee would be unfairly protected. The Court wants people who intentionally inflict harm on others to be accountable.
If you, or someone you know, has been injured at work, call Attorney Bob Vogel at the Vogel Law Firm or call 865-357-1949 for a free consultation.
Thursday, August 16, 2012
Personal Injury Recovery - What Are Damages?
If you are injured and wondering what kind of compensation you might be entitled to, this article will provide an overview.
Personal Injury cases may be divided generally into two categories for the purpose of discussing damages: injuries at work, and other types of injuries (auto accidents, slip and fall, defective products, medical malpractice, assault and battery, infliction of emotional distress, caregiver neglect - nursing homes - for example). If it turns out that the defendant has to pay for your injury, there are different ways the Court can compensate you. We call these damages. You can recover different types of damages depending on your situation and the cause of your particular injury.
This article will examine non-work related injuries. Work related injuries are governed by the Worker's Compensation Statute. If you have questions about Worker's Compensation, email me directly and I will answer you - Bob Vogel - rlvogel@robertvogellaw.com
Types of Personal Injury Damages
In personal injury cases, a jury usually determines the type of damages you sustained and the amount of compensation to which you are entitled. What the jury awards is determined by the proof you put on. Of course, since most cases settle before going to trial, many of these damage awards are arrived at by agreement between the parties.
A personal injury damage award generally includes two types of damages: compensatory damages and punitive damages.
Monetary Losses, which include:
In Tennessee, the new Tort Reform legislation has limited punitive damages to a maximum of $500,000.
Judicial Discretion
If the award is excessive or deficient, a court may review the award and increase or decrease the final amount without a new trial or appeal
If you or someone you know has been injured, or if a loved one has been killed, in an accident or due to the negligent or intentional actions of a person or company, or by a product, hospital or doctor, contact Attorney Bob Vogel immediately at The Vogel Law Firm by calling 865-357-1949 or email rlvogel@robertvogellaw.com We offer free consultations and there is no legal fee unless we recover damages for you.
Personal Injury cases may be divided generally into two categories for the purpose of discussing damages: injuries at work, and other types of injuries (auto accidents, slip and fall, defective products, medical malpractice, assault and battery, infliction of emotional distress, caregiver neglect - nursing homes - for example). If it turns out that the defendant has to pay for your injury, there are different ways the Court can compensate you. We call these damages. You can recover different types of damages depending on your situation and the cause of your particular injury.
This article will examine non-work related injuries. Work related injuries are governed by the Worker's Compensation Statute. If you have questions about Worker's Compensation, email me directly and I will answer you - Bob Vogel - rlvogel@robertvogellaw.com
Types of Personal Injury Damages
In personal injury cases, a jury usually determines the type of damages you sustained and the amount of compensation to which you are entitled. What the jury awards is determined by the proof you put on. Of course, since most cases settle before going to trial, many of these damage awards are arrived at by agreement between the parties.
A personal injury damage award generally includes two types of damages: compensatory damages and punitive damages.
Compensatory Damages
Compensatory damages are designed to place a victim in the position he or she would be in if the injury had never occurred. By placing a dollar amount on the victim's injuries, compensatory damages seek to restore the victim financially, physically and emotionally. Compensatory damages may be divided into two categories: damages that compensate victims for monetary losses (also known as special damages), and damages that compensate victims for non-monetary losses (also known as general damages). Things that might be included in this category are the following:Monetary Losses, which include:
- Medical expenses. Damages for medical expenses may include the costs of both past and future medical care and rehabilitation. Future costs are calculated by estimating the patient's medical needs for the rest of his or her life expectancy.
- Costs of living with a disability. An injury may result in a disability that requires a victim to significantly alter his or her lifestyle. Compensatory damages may cover the costs associated with this change. For example, a damage award may compensate a victim for the costs of renovating a house to make it wheelchair-accessible, or the costs of in-home nursing care or assistance.
- Lost wages. A victim may recover any wages lost while recovering from an injury, as well as any lost earning capacity suffered as a result of an injury.
- Repair or replacement of property. A victim may recover the costs of property damage suffered in a car accident, or other type of accident. Property is typically valued at its fair market value at the time of the injury.
- Funeral expenses. The family of a personal injury victim may recover the costs of any funeral expenses incurred as a result of the injury.
- Pain and suffering. Damages for pain and suffering typically include compensation for actual physical pain, as well as compensation for emotional distress. Emotional distress is defined as the frustration, fear, anger and loss of enjoyment of life associated with suffering from a debilitating injury.
- Loss of consortium. Spouses of personal injury victims may receive damages for the loss of the emotional and intangible elements of marriage, such as loss of affection, solace, comfort, companionship, society, assistance, and sexual relations.
Punitive Damages
Punitive damages are not designed to compensate the victim, but to punish the defendant for inflicting the victim's injuries and to deter others from engaging in similar behavior. Punitive damages are typically awarded when the defendant's conduct has been especially egregious or outrageous. Punitive damages are not awarded in every personal injury case, and may not be considered unless a compensatory damage award has been ordered. In order to avoid excessive punitive damage awards, courts typically limit punitive damages to less than ten times the amount of compensatory damages.In Tennessee, the new Tort Reform legislation has limited punitive damages to a maximum of $500,000.
Judicial Discretion
If the award is excessive or deficient, a court may review the award and increase or decrease the final amount without a new trial or appeal
If you or someone you know has been injured, or if a loved one has been killed, in an accident or due to the negligent or intentional actions of a person or company, or by a product, hospital or doctor, contact Attorney Bob Vogel immediately at The Vogel Law Firm by calling 865-357-1949 or email rlvogel@robertvogellaw.com We offer free consultations and there is no legal fee unless we recover damages for you.
Sunday, August 12, 2012
Small Business Growth is the Answer
At the The Vogel Law Firm we are making a commitment to
small business owners in our community: We are here to help you establish, grow
and protect your business. I grew up the son of a small business owner. Our firm is a small business, and we've been able to add several jobs over the last few years.
I believe that the best answer to
our current economic problems is to establish and grow small businesses. There
are many opportunities out there for to help you get started right now. In
fact, the current administration has made small business growth a special part
of its 2013 budget. And, I think there is bipartisan support for small business
development.
There are unprecedented
opportunities not only locally, but globally, to grow your business. The
internet makes everyone on the globe your potential customer.
You need a lawyer and a law firm
that knows how to get its hands dirty and take on the jobs that small business
owners need done. We're different, small business attorneys. We don't meet in
fancy boardrooms and charge you enormous hourly fees. We are willing to get
into the mix and stand beside you. That is what a small business attorney must
do to help their clients succeed.
And that is what we want for you -
success. If you succeed, than so have we.
Call 865-357-1949 or email Bob Vogel
at rlvogel@robertvogellaw.com
Here's some more about our how we
can help you:
Small
Business Services
Working with small businesses is
close to my heart. I grew up the son of a small business owner. Before I became
a lawyer, I had my own contracting company. I believe that a good, small
business attorney cares about the clients he serves and their business. I
believe that he is committed to the success of the business. A small business
attorney is a different breed than attorneys that service big corporations. We
need to be more flexible, more creative, willing to step in alongside the
business owner and get our hands dirty. If this is the kind of lawyer you want,
then call me: Bob Vogel, 854-357-1949 or email rlvogel@robertvogellaw.com
- our first consultation is free. Remember, The Vogel Law Firm is a small
business, too. I believe that growing small businesses is the best way to
rebuild America.
Here's how my law firm can help you:
- Small Business Legal Advice
- Startups and Business Formations - we can help you take your dream and turn it into a reality
- Choosing the right type of formation (sole proprietor, partnership, LLC, Corporation, S Corporation, PLLC
- Franchises and Franchise Agreements
- Bylaws
- Buy Sell Agreements
- Contracts
- Employment Law including compliance with Federal Labor Laws and dealing with workers comp claims
- Restrictive Covenants and Non-Compete Agreements
- Business Dissolution and Purchase Agreements
- Litigation Avoidance Counseling
- Department of Labor Compliance
- Immigration
- Marketing your product or services globally
- Collections
- All types of litigation and contract disputes
Helping you get started
You want to start a business. You have a dream, a vision, and you're ready to go. What now? Do you start it as a sole proprietor? Partnership? Corporation? S Corporation? LLC? LP? PLLC?Will you have bylaw? A charter? A vision statement? How will you hire employees? Will you have a contract? Do you need Workers Comp Insurance?
Will you bring in investors? Will the be part of the business or silent partners? Will you borrow money or offer an interest in the
You’ve got skills, knowledge, and a work ethic that your customers will appreciate. Now, make sure you get the advice and structure you need to be successful starting a business. In addition to advice, Articles and Bylaws should be drafted for any business startup. These documents formally create your company and lay out how the company will be controlled and governed. If there is or will be more than one owner of your company, a Buy-Sell Agreement (also called a Shareholder’s Agreement) can be used to determine if and how ownership rights can be purchased, sold, or transferred to other people. You’ll also want to make sure that your new business is registered with the proper agencies, including the Secretary of State and the IRS. Finally, you’ll need to be sure that your company has written contracts for customers and contractors, as well as a structure that will allow you to hire employees and grow as it becomes more established.
How to Make Your Business Grow!
Whether you are considering expanding, or developing a new marketing program, hiring salespeople or leasing or building a new building, we can work closely with you to make sure there are no problems.We can even work with you to grow your business globally.
We will advise you on compliance with governmental regulations ranging from your Annual Renewal with the Secretary of State to finding employee pay systems that reduce expense and headaches for you while still abiding by the rules of the Department of Labor (DOL).
We can also help prevent and resolve employment issues, such as drafting employee handbooks, drafting non-compete agreements, and advising on hiring or terminating employees. We can even review your forms and business practices to help ensure that you’re doing everything possible to turn accounts receivable into funds received and avoiding unnecessary litigation.
Our attorneys know small businesses inside and out and look forward to becoming your advisors on the road to success.
Innovative Solutions
It is our mission to solve the challenges our clients face quickly, efficiently, and successfully. We take a fresh approach that begins with truly listening to each client's concerns, not just giving one-size-fits-all advice. Then, we investigate the facts and circumstances of each case and use that information to craft a strategy that will provide the best possible outcome for you.We want you to succeed! Call The Vogel Law Firm - 865-357-1949 today for a no obligation consultation. Or, email Bob Vogel, rlvogel@robertvogellaw.com
Friday, August 10, 2012
GE Dishwashers Cause Fires! Recall!
There have been 15 reports of the heating elements of these dishwasher models failing. Seven of those have resulted in fires. Three resulted in extensive property damage. If you have a GE dishwasher, please review the detailed information below, which includes pictures and model numbers. Over 1.3 million of these have been distributed in the U.S.
If you or someone you know has suffered a loss or injury due to a product failure, contact Attorney Bob Vogel immediately at 865-357-1949, The Vogel Law Firm or email rlvogel@robertvogellaw.com
Name of product: GE, GE Adora™, GE Eterna™, GE Profile™ and Hotpoint®, Dishwashers
Units: About 1.3 million in the United States
Manufacturer: GE Appliances, of Louisville, Ky.
Hazard: An electrical failure in the dishwasher's heating element can pose a fire hazard.
Incidents/Injuries: GE has received 15 reports of dishwasher heating element failures, including seven reports of fires, three of which caused extensive property damage. No injuries have been reported.
Description: This recall involves GE, GE Adora, GE Eterna, GE Profile and Hotpoint brand dishwashers. They were sold in black, white, bisque, stainless steel and CleanSteel™ exterior colors and finishes. The model and serial numbers can be found on a metallic plate located on the left tub wall visible when the door is opened. Model and serial numbers will start with one of the following sequences:
Sold at: Appliance dealers, authorized builder distributors and other
stores nationwide from March 2006 through August 2009 for between $350 and
$850.
Manufactured in: United States
Remedy: Consumers should immediately stop using the recalled dishwashers, disconnect the electric supply by shutting off the fuse or circuit breaker controlling it and inform all users of the dishwasher about the risk of fire. For all dishwashers, contact GE for a free in-home repair or to receive a GE rebate of $75 towards the purchase of a new GE front-control plastic tub dishwasher, or a rebate of $100 towards the purchase of a new GE front-control stainless tub dishwasher or GE Profile top control dishwasher. Consumers should not return the recalled dishwashers to the retailer where they purchased as retailers are not prepared to take the units back.
Consumer Contact: For additional information, contact GE toll-free at (866) 918-8760 between 8 a.m. and 5 p.m. ET Monday through Friday or visit the firm’s website at www.geappliances.com/recall
Location of model and serial numbers
GE Dishwasher
GE Profile Dishwasher
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.
If you or someone you know has suffered a loss or injury due to a product failure, contact Attorney Bob Vogel immediately at 865-357-1949, The Vogel Law Firm or email rlvogel@robertvogellaw.com
If you or someone you know has suffered a loss or injury due to a product failure, contact Attorney Bob Vogel immediately at 865-357-1949, The Vogel Law Firm or email rlvogel@robertvogellaw.com
GE Recalls Dishwashers Due to Fire Hazard
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: GE, GE Adora™, GE Eterna™, GE Profile™ and Hotpoint®, Dishwashers
Units: About 1.3 million in the United States
Manufacturer: GE Appliances, of Louisville, Ky.
Hazard: An electrical failure in the dishwasher's heating element can pose a fire hazard.
Incidents/Injuries: GE has received 15 reports of dishwasher heating element failures, including seven reports of fires, three of which caused extensive property damage. No injuries have been reported.
Description: This recall involves GE, GE Adora, GE Eterna, GE Profile and Hotpoint brand dishwashers. They were sold in black, white, bisque, stainless steel and CleanSteel™ exterior colors and finishes. The model and serial numbers can be found on a metallic plate located on the left tub wall visible when the door is opened. Model and serial numbers will start with one of the following sequences:
| Brand | Model Number Begins With: | Serial Number Begins With: |
|---|---|---|
| GE GE Adora GE Eterna GE Profile |
GLC4, GLD4, GLD5, GLD6, GSD61, GSD62,GSD63, GSD66, GSD67, GSD69, GLDL,PDW7, PDWF7, EDW4, EDW5, EDW6,GHD4, GHD5, GHD6, GHDA4, GHDA6 |
FL, GL, HL, LL, ML, VL, ZL, AM, DM, FM, GM, HM, LM, MM, RM, SM, TM, VM, ZM, AR, DR, FR, GR |
| Hotpoint | HLD4 |
Manufactured in: United States
Remedy: Consumers should immediately stop using the recalled dishwashers, disconnect the electric supply by shutting off the fuse or circuit breaker controlling it and inform all users of the dishwasher about the risk of fire. For all dishwashers, contact GE for a free in-home repair or to receive a GE rebate of $75 towards the purchase of a new GE front-control plastic tub dishwasher, or a rebate of $100 towards the purchase of a new GE front-control stainless tub dishwasher or GE Profile top control dishwasher. Consumers should not return the recalled dishwashers to the retailer where they purchased as retailers are not prepared to take the units back.
Consumer Contact: For additional information, contact GE toll-free at (866) 918-8760 between 8 a.m. and 5 p.m. ET Monday through Friday or visit the firm’s website at www.geappliances.com/recall
Location of model and serial numbers
GE Dishwasher
GE Profile Dishwasher
---
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.govCPSC 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.
If you or someone you know has suffered a loss or injury due to a product failure, contact Attorney Bob Vogel immediately at 865-357-1949, The Vogel Law Firm or email rlvogel@robertvogellaw.com
Thursday, August 9, 2012
Personal Injury - Proving Your Case
Personal injuries happen in a variety of situations. But, most cases share common elements. In order to succeed against a defendant in a personal injury case, you have to provide proof that certain elements exist. If you do not, your case can be dismissed before it goes to trial. Here are the four basic elements that are part of most personal injury cases.
If you, or anyone you know, has been injured, call Bob Vogel at The Vogel Law Firm at 865-357-1949 or email rlvogel@robertvogellaw.com
We offer no obligation consultations.
- Prove that the person was careless or negligent - first, you must prove that the person or company you are suing was either careless or negligent. There are some torts that can require intentional acts - like assault and battery, but for personal injury cases, careless or negligence is required. There is also a thing called a duty that is a part of this equation. The defendant must have owed you a duty of care - in other words, it should be foreseeable that if he was negligent, your injury was a likely consequence and the law will hold him responsible for his acts toward you.
- The negligence caused the accident - next, you have to prove that the act of the defendant caused or led to the accident that injured you. If there is no legal connection, and no logical connection, there is no case.
- The accident caused the injuries - there must be injuries. They must be the result of the defendant's negligent act. And, those injuries, sometimes referred to as damages, must be something the court can compensate you for. In a sense, you must show a loss. In most cases, the court can only compensate you with money, so the damages must be quantifiable some how.
- Statute of limitations - the time limit when you must bring a claim - finally, if you wait too long, you lose your right to bring a claim. Statutes of limitations start at 1 year and range from there. So, time is always important. You don't want to lose your rights by waiting too long. However, there are some arguments that will extend the limitation for certain circumstances.
If you, or anyone you know, has been injured, call Bob Vogel at The Vogel Law Firm at 865-357-1949 or email rlvogel@robertvogellaw.com
We offer no obligation consultations.
Wednesday, August 8, 2012
Secret Arbitration Clauses Hurt Investors
Almost all account documents contain arbitration clauses in the fine print. These clauses mean you are not allowed to take your broker to court if they mismanage your money or overcharge you. Any violation of their duty to you must be arbitrated. The advantage in arbitration goes to the brokerage firm. Many arbitrators are industry insiders. Evidence is not weighed the same way, nor is it presented the way it is handled in Court.
Further, arbitration precludes participation in Class Action suits - often the only way to take on a big broker who has been overcharging.
If you have lost money or feel that your investment advisor or company has hurt you financially, call Attorney Bob Vogel at the Vogel Law Firm at 865-357-1949 or email rlvogel@robertvogellaw.com
AAJ: Protect Consumers From Secretive Forced Arbitration
Washington, DC—The American Association for Justice (AAJ) applauds the Consumer Financial Protection Bureau (CFPB) for its continued work to protect consumers from corporate wrongdoing at a time when the use of forced arbitration clauses by the financial sector has grown tremendously. In the forthcoming study, the CFPB must fully examine the devastating impact forced arbitration has on the rights of American consumers,according to comments submitted by AAJ.
“Arbitration can be an effective method of dispute resolution when both parties voluntarily agree to arbitrate,” said AAJ President Gary M. Paul. “When corporations hide forced arbitration clauses in the fine print of a non-negotiable contracts to limit the legal rights of an individual it becomes an abusive weapon."
In 2011, a study of financial institutions’ policies by the Pew Charitable Trust found 71% of account agreements required accountholders to submit to a private arbitrator selected by the bank.
In addition, CFPB must investigate the expanding use of forced arbitration clauses to ban class-actions. Last year the U.S. Supreme Court decided AT&T Mobility v. Concepcion, giving corporations broad authority to force consumers into one-sided secret arbitrations, practically writing a blueprint for how to avoid class-actions, and ultimately, any accountability.
“Class actions make it economically feasible to seek justice for individually smaller, but not inconsequential injuries and create the power and ability to level the playing field between ordinary citizens and powerful defendants,” added Mr. Paul.
The CFPB must not only thoroughly investigate the use of forced arbitration clauses, but must act quickly to protect the rights of consumers to seek justice.
AAJ continues to support the Arbitration Fairness Act of 2011 (S. 987/H.R. 1873) which would amend the Federal Arbitration Act (FAA) to eliminate forced arbitration clauses in employment, consumer, and civil rights cases, and would allow consumers and workers to choose arbitration after a dispute occurred.
The Center for Constitutional Litigation (CCL) submitted additional comments on behalf of AAJ focused on the judicial, not Congressional, expansion of the FAA to consumer disputes. Both sets of comments can be found here.
###
As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.
Subscribe to:
Posts (Atom)