You Wont' Believe What This Trucker Was Doing When He Killed This Mother of Two....

Truck driver streaming porn and driving while sleep deprived runs his eighteen wheeler over a young mother of two.

Trucking Company Involved in Second Worst Wreck In Kentucky History Has Poor Safety Record.

A fatal Kentucky accident put semi trucks on the front page news of Louisville’s Courier Journal newspaper. After a wreck between a semi and a passenger van left 11 dead, reporters began to dig deeper into truck accidents and found some unsettling facts.

 

The springboard of the reports resulted from a serious accident that occurred in the early morning hours of March 26^th. A large Mennonite family and other close friends were traveling to a wedding when their van was hit head on by a tractor trailer that had broken through the cable barriers at the median across I-65. According to the article, this wreck was one of the deadliest in Kentucky since the May 14, 1988 crash in Carroll County between a bus full of my classmates from North Hardin and a drunk driver.

 

The National Transportation Safety Board (NTSB) created a six-person investigation team to uncover more details of this wreck. They have yet to determine an exact cause of the accident or a reason why the truck veered off course. Days later, the trucker was identified by the Courier-Journal as Kenneth Laymon who drove for Alabama based company, Hester, Inc.

 

According to federal reports cited in a later Courier Journal article, “Large trucks in Kentucky account for a disproportionate share of the state's fatal crashes…” The Kentucky State Police records show that in 2008, trucks made up 4.6 percent of the state's registered vehicles but unfortunately a disproportionate 8.9 percent of its tragic accidents. Even more disturbing is that accident statistics prove similar nationwide.

 

Things are being done to try to combat the problem. Recent legislation disallowed truckers to text while driving and a new federal regulation will require trucking companies that repeatedly violate driver time limits to install electronic recorders that track how long truckers spend behind the wheel according to an Andrew Wolfson article. Transportation Secretary Ray LaHood sees the regulation as a way of reducing the number of accidents caused by sleeping drivers. It is suspected, though not confirmed, that the lack of brake marks could indicate dozing off could have been the cause behind the Mennonite crash. The problem however is that according to the Federal Motor Carrier Safety Administration, recorders will only be required for companies flagged during on-site reviews but only about 2 percent or less of the 750,000 U.S. trucking companies are reviewed on-site throughout the year.

 

Thanks to the American Association for Justice (AAJ) citizens can do a search state by state of trucking companies and their violations through the Violations Database.

hp

ps be sure to download or FREE E-Book "What The Insiders Don't Want You To Know About Semi-Truck Wrecks."

Hans Interviewed on 840 Whas On Commonwealth Dodge 100mph Accident Case

Francene of the Francene Show on 840 WHAS read my recent blog and wanted to know more about why Commonwealth Dodge may be liable for the deaths of two people involved in the 100 mph test drive that resulted in a car wreck this weekend.  The interview aired live this morning.

You can download the interview here:

Is Commonwealth Dodge Liable for Fatal Wreck on Fern Valley Rd

Tragedy happened today in Louisville, Kentucky when a Dodge Challenger on a test drive from Commonwealth Dodge was involved in a fatal crash with a Mercury Sable.  The two occupants of the Sable were both killed and the driver of the Challenger was arrested.  According to some news reports, the Challenger may have been driven at a high rate of speed. Wave 3 news reports witness Rick Lee said, "I heard the car racing down through here and of course, they race down through here all the time, and it kind of got mine and my son's attention. When we got up to try to see the aftermath of what was going down the road, we heard an impact."

According to the Courier Journal, a Commonwealth employee was a passenger on the test drive.

This leads to the obvious question.  Can Commonwealth be held liable for the two deaths.  I see two potential ways the dealership can be held liable.  First, liability insurance follows the vehicle.  This means that the owner of the dealership must provide liability insurance for every vehicle on its lot. So, even though a Commonwealth employee wasn't driving, the dealer's auto insurance will still have to provide coverage. 

The second cause of action against Commonwealth Dodge could be filed based on the conduct of its employee that was on the test drive IF it can be proven that the salesperson allowed the driver to speed or drive in a reckless manner.  The dealership would be liable under the theory of respondeat superior, a legal term that means the employer is liable for the actions of its employees.  Here, the dealer's Commercial General Liability (CGL) policy would provide coverage.

Here, it will be important to obtain as many witness interviews as possible as soon as possible.  Unfortunately, memories fade and stories change the farther away in time interviews are conducted. 


Hans

p.s. As a side note, this story was of particular interest to me because at age 18 I test drove, and wrecked, a Toyota MR2 while on a test drive.  Fortunately, no one was hurt.

Why The Michael Jackson Wrongful Death Lawsuit May Be Worthless....

Well, it hasn't been filed yet, but there's no doubt its coming-- a wrongful death lawsuit by the Estate of Michael Jackson.  Some lawyers are calling it the "mother of all medical malpractice lawsuits."

Well I say, "not so fast my friends."  The wrongful death lawsuit may be virtually worthless. Here's why.

The primary component of damages that the Jackson Estate would be allowed to claim in a wrongful death suit is the loss of future earning.  This would include concert ticket sales, royalties from albums, and commercial endorsements, any appearance fees, etc.  In fact, Jackson was scheduled to start a 50 show tour later this year.

So, it should be simple to calculate the loss to the Estate, right?  You simply hire an expert economist, an expert promotor, an expert music producer and manager and you have them estimate how much MJ would have earned over his projected lifetime.  That would then be the loss to the Estate and it would then have the right to recover that amount amount from the negligent parties (assuming there are any).

That is would typically happens in wrongful death cases, albeit it on a much smaller scale; however, here, that formula may not work for one simple reason....

Celebrities often make more after their death than when they are alive. Or, to put it another way, Jackson's Estate may INCREASE in value as a result of his death.

For example, according to Forbes Magazine, in 2007 Justin Timberlake pulled in $44 million; Madonna $40 million. Not bad by anyone's standards.  But compare that to Elvis Presley's $52 million and you start to see where I'm going.  Elvis has been dead for 32 years yet his Estate is making more today in one year than he made over his entire career when he was alive.  In fact, Elvis even has his own station on Sirius Radio. 

Every October, Forbes compiles its list of the 13 richest dead celebrities.  In 2008, the ranking were as follows:

The Lucky 13

1. Elvis Presley ($52 million)
2. Charles M. Schulz (Peanuts + Snoopy = $33 million)
3. Heath Ledger ($20 million)
4. Albert Einstein ($18 million in 2007, think Baby Einstein videos!!!)
5. Aaron Spelling ($15 million)
6. Dr. Seuss (Theodor Geisel)($12 million)
7. John Lennon ($9 million)
8. Andy Warhol ($9 million)
9. Marilyn Monroe ($6.5 million)
10. Steve McQueen ($6 million)
11. Paul Newman ($5 million)
12. James Dean ($5 million)
13. Marvin Gaye ($3.5 million)

This will likely be the case with Jackson's Estate as well.  The "King of Pop" will likely equal or surpass the "KIng of Rock N Roll" in the post-death celebrity earnings category.  Let's face it, when you think Hollywood you think James Dean and Marilyn Monroe, but when you think music, you think of Elvis and Michael.

In fact, according to the Wall Street Journal, it may have already started.  According to an article about Apple's projected earning in the WSJ,  "Michael Jackson’s death did move some recordings.  According to The Journal’s Ethan Smith, U.S. retailers sold 415,000 albums by Michael Jackson in the four days following his June 25 death, according to Nielsen’s SoundScan. That’s compared with fewer than 10,000 copies that were sold in the previous full week. Over half of those sales were digital downloads made on services such as iTunes and Amazon.com’s AmazonMP3."  Apparently, Jacksons fans appreciate his music more now that he's gone.  Interesting. 


And that, my morbid readers, is why the Jackson wrongful death lawsuit may not be frivolous, but it may be worthless. 

hans

Jury Awards $24 Million in Truck Wreck Case

$24 million award in fatal truck crash

A Will County jury has awarded nearly $24 million to families of two people killed and another seriously injured when a truck crashed into a line of cars on Interstate Highway 55 near Plainfield in April 2004.

Jurors on Friday issued the judgment—the highest verdict amount in a civil case in Will County in at least 50 years—against C.H. Robinson Worldwide, a Minnesota freight broker that had contracted with the truck driver, De An Henry of Utah.

Kentucky Supreme Court to End Inequity Dealing With Loss of a Spouse (Hopefully)

The Myths of Arbitration

I hate mandatory arbitration agreements, especially in healthcare cases.  Nursing homes force residents, or their family members, to sign these agreements before admission to the facility.  They then injur the resident and hide behind the arbitration agreement to shield them from have a jury pass judgment on their care in an open courtroom that is subject to public scrutiny.  Many of these companies, and the legislators whose pockets they line with campaign contributions, point to all sort of supposed "benefits" to arbitration.  These benefits are mostly myths:

THE ARBITRATION FAIRNESS ACT
MYTHS AND FACTS

The Arbitration Fairness Act (AFA) would continue to allow voluntary arbitration while preserving the right to trial by jury.  The bill would prohibit a corporation from forcing a consumer into a rigged mandatory arbitration system where the corporation hand-picked the arbitrator and all of the rules of the process before a dispute even occurred. 

Myth: The AFA prohibits arbitration.
Fact: The AFA encourages voluntary arbitration; it only prohibits corporations from forcing mandatory clauses on consumers without them having a chance to negotiate the terms and often without them knowing about it. 

Example: When admitting his father into a nursing home, Charles Miller Jr. signed a lengthy contract that, unbeknownst to him at the time, contained a binding mandatory arbitration clause.  His father was not seen by a physician until three weeks after his admission, during which time he lost 19 pounds and suffered from dehydration and pneumonia, all of which led to his death.  Charles Miller Jr. filed a claim against the nursing home corporation, but a court held that because he had signed this contract, he would be forced into arbitration for his claims against the nursing home, under the terms the nursing home corporation chose to put into the contract.  Because Charles Miller Jr. had unknowingly signed a contract that contained a mandatory arbitration clause before any dispute had arisen, he was bound by its terms, no matter how unjust.

Myth: Most consumers favor binding mandatory arbitration. 
Fact: Consumers favor voluntary arbitration and being given the choice to arbitrate. Would an employee with a claim against Halliburton want Halliburton deciding how her claim should be handled?  Would a homeowner with a claim against his home contractor want the contractor deciding how his claim should be handled?

The Chamber of Commerce's recent study, which purported to show that voters did not support HR 3010, asked voters: "If you could choose the method by which any serious dispute would be settled between you and the company, which would you choose?" (Emphasis added.)  But what they didn't tell these voters is that binding mandatory arbitration takes away a consumer's choice. Under the current system, consumers are not allowed to choose which option is best for them.  They are not allowed to choose to file a claim in court nor are they allowed to choose who the arbitrator will be, or even what state they will have to arbitrate the claim in.  Instead, they are forced into an arbitration system that is set up to favor the corporation and trample on the rights of the consumer.  When consumers are given the choice to arbitrate after a dispute has arisen, they gain bargaining power and are better able to enter into an arbitration system that is fair. 

Myth: Arbitrators are neutral, unbiased decision-makers.
Fact:  Binding arbitration favors corporations because only corporations are repeat users of arbitration companies. 
If an arbitration company wants to be used in a company's mass consumer or employment contracts, the arbitration company has a huge financial incentive to appear favorable to those businesses in arbitration proceedings.  Why would a company choose an arbitrator that rules against them? 

Myth: Arbitration is cheap and more accessible to consumers. 
Fact: Arbitration is so expensive that most consumers will not be able to pursue their claim against a corporation because they can't afford the costs of the arbitrator. 

Under mandatory arbitration clauses, consumers must pay steep filing fees just to initiate a case-seldom less than $750 – and pay their share of the arbitrator's hourly charges, which are routinely $400 or more per hour.  All these fees must be deposited in advance and almost always amount to thousands of dollars.  In addition, arbitration clauses often allow the corporation to choose the location, regardless of how inconvenient or costly travel will be for the consumer.

Myth: Arbitrators are like judges; they have to follow the law and publicly state the reasons they made their decision. 
Fact: Arbitrators are not bound by any laws.  They do not have to follow the law and they don't have make public or even provide to the consumer any explanation for ruling the way that they did. 

Most arbitration clauses require that proceedings be kept confidential, even if the case raises important public policy issues.  As a result, only the corporation can track past decisions and know which arbitrators have ruled for them.  In addition, arbitrators do not set or follow judicial precedent, something our judicial system requires to ensure consistency and fairness in legal proceedings. 

Drunk Driver Kills Friend in 1993 and then Female UK Co-Ed in 2008

A Kentucky man was recently convicted following a hit and run truck wreck that took the life of University of Kentucky Co-ed Connie Blount; however, this was not Shannon Houser's first run in with the law, nor is it the first time he has had a car accident that has killed someone.

In 1993, Houser was arrested and charged with DUI manslaughter following a car wreck on Russell Cave Road in Lexington, Kentucky that killed his friend .  Houser received probation after his victim's parents wrote Judge Mary Noble asking for leniency. 

In 2008 Shannon Houser struck Connie Blount, 18, with his pickup in the early morning of April 13. Blount, who investigators have said crossed Broadway against the light, had knelt down in the street, according to testimony.  Houser then left the scene of the wreck.

Last Thursday, a Fayette County, Kentucky jury found Houser guilty of attempting to tamper with evidence, and not guilty of marijuana possession. Later Thursday, the jury unanimously recommended that Houser be sentenced to five years for the tampering charge and one year for leaving the scene of an accident. Judge James Ishmael set the sentencing hearing for March 6, 2008.  The jury recommended a six year sentence.

It's unlcear whether Blount's family filed a civil suit against Houser, but if they did Houser could he held liable for compensatory damages (pain and suffering and the loss of Connie's power to labor and earn money) as well as punitive damages for Houser's gross negligence.  As an interesting aside, in a civil case, it may not even be admissible that Hanover left the scene since it wouldn't be relevant to the question of whether Hanover was negligent in causing the wreck (according to testimony, Connie was kneeling down in the middle of the street when the wreck occured). 

Based on Houser's criminal record, I doubt he would be the type of responsible person that purchased enough insurance to compensate for such an enourmous loss.  This is a good example of why it's important to purchase Uninsured and Underinsured coverage of your own.  This type of insurance protects you if someone else causes an accident and doesn't have enough insurance.  Talk your agent about this after reading my Free Special Report; Secrets to Buying Car Insurance

hans

What Event Precedes The Day Most Car Wreck Occur...

According to research from the University of California at Berkeley School of Public Health, the first snowy day of the year is substantially more dangerous for drivers than other snow days in terms of fatalities. Fatal accidents were 14% more likely on the first snowy day of the season compared with subsequent ones, according to research compiled from 1975 to 2000. Fatal accidents were 7% less likely on snowy days on the whole, when compared with good-weather days. The chances of having a fender-bender, on the other hand, increased.

Tomorrow we'll reveal the most dangerous driving day of the year.

Hans

Most Dangerous Month of The Year to Drive...

As we told you yesterday, there are certain times of day you are more likely to be involved in a fatal car accident thatn others, but is there one month that is more dangerous than the others?  According to the National Highway Transportation and Safety Administration, August had the most total deaths on the road in 2008, a 1.1% decline from 2007, according to NHTSA data. A total of 3,612 people died that month. NHTSA reports that when counted as fatalities per 100 million vehicles, August has a fatality rate of 1.42--an increase of 0.06 since 2007 and 0.10 points higher than September and June.

Tommorow we'll reveal what event  precedes the day that most fatal car wrecks occur.

Hans

The Most Dangerous Time of Day to Drive is ...

If you don't want to be killed in an automobile accident, there are certain times of day that you should avoid being on the road.  According to the International Institute for Highway Safety, an average 6.6 people are killed between the hours of 5 p.m. and 6 p.m., and another 6.6 between the hours of 6 p.m. and 7 p.m. Those rates are the overall highest of any time during the day. In 2007, 14,055 people were killed in the 5 p.m. hour. But the hours between midnight and 4 a.m. have the highest number of fatalities when calculated as a percentage of the amount of people on the road, according to AAA. During that time, statistically speaking, 5.87 per 100 million people on the road will be killed.

Tommorow we'll reveal the most dangerous month of the year to drive.


Hans
ps Download our Free Report- What The Insider's Don't Want You To Know About Semi-Truck Wrecks.

What is The Most Dangerous Day of the Year to Drive...

July 4, Independence Day, historically has been the most dangerous day of the year to drive, according to the IIHS. In 2007, 926 people were killed in auto accidents on July 4.

Tomorrow we reveal "The Ten Worst Winter Driving Mistakes."

Hans

 

 

Article Reveals How to Reduce Teenage Wrecks by 16.5% in Just One Hour...

Teenagers have the highest rate of car wrecks of any age group.  Unfortunately, Kentucky is no exception.  In fact, I was listening to the radio yesterday and the lead story was that nine teenagers had died this year in car wrecks in Bell County.  Just think about that number, 9 teenagers from one small county in Kentucky in just one year.  According to the 2006 census, the population of Bell County, Kentucky is only 29,000 people, of which there are only 6500 under the age of 18.  The total population of Bell County High School is about 900, that means that 1% of the student body died in car wrecks in 2008.  Tragic. 

So, is there anything we can do to reduce the number of teenagers injured or killed in Kentucky in car wrecks and crashes?  Well, according to a recent study published in the journal Journal of Sleep Medicine, there just might be.  In the study, 10,000 Kentucky students from grades 6 through 12 where tracked on their sleep habits and daytime functioning, including auto mishaps. The surveys were completed twice -- first in 1998, when school started at 7:30 a.m., and then again in 1999, when the start time had been moved to 8:30 a.m.

According to the Louisville Courier-Journal story on the recent study  "Letting teens sleep a little more by starting the school day a bit later may lower their odds for car-crash injury or death, a new study finds. The researchers found a 16.5 percent drop in auto accident rates for teen drivers when local high schools moved the start of classes from 7:30 a.m. to 8:30 a.m."

The study indicated that sleep deprivation causes 100,000 wrecks per year and that half of those are drivers 16-25.  The study further found that "The average teenager probably needs at least eight hours and probably closer to nine hours of sleep, Danner said. And as little as an hour less sleep can have a cumulative effect. That means that by the end of the week, teens are as impaired as if they had stayed up for 24 hours straight, Danner explained" 

hans
p.s. One of the reasons that the death rate of teens in car wrecks is so high is because they usually travel in groups.   While the recent fatality in Bell County, Kentucky (Brooke Lambert a cheerleader at Middlesboro High School) was a single death,  four teens died earlier in December in a collision with a coal truck on U.S. 25 East as a result of slick roads and four other teens died in a fiery crash on Kentucky 92 in January. Police said their car hit a tree.

Radcliff Man Dies in Fatal Louisville Wreck With Drunk Driver...why his estate might not have a case

According to the News Enterprise, a Radcliff, Kentucky man died Friday in a fatal car crash on the Gene Snyder in Louisville..  Even though the other driver was intoxicated, the deceased's estate may not have a good case against the drunk driver.  That's because the Radcliff man was not wearing a seat belt and was ejected from the car.
Kentucky has a seat-belt defense that prevents someone from recovering for their injuries if a wearing a seat-belt would have prevented them
In order to succeed, his estate will have to prove that even if he had worn a seat belt, he still would have suffered severe injuries or death.  In situations such as this, we usually hire a biomechanical engineer and an emergency room physician to evaluate the forces and injuries to determine whether a seat belt would have prevented the injuries or not.  Tough case.

hans

Kentucky Truck Driver Turns Himself In After Fatal DUI Wreck...

On December 4th, I posted about a settlement arising out of a semi-truck wreck that paralyzed a young boy.   The driver of the truck was under the influence of drugs.  When I posted the entry, I didn't realize that just the day before, a kentucky truck driver had been charged in a fatal truck wreck that took the life of an Indiana man.  The Kentucky truck driver tested positive for Cocaine.

According to an Evansville television station, a truck driver involved in a fatal collision in July turned himself in December 3rd on a charge of operating a motor vehicle while intoxicated causing death.  Delbert Majors, 53, of Corydon, Ky., was being booked into the Vanderburgh County Jail at 9:30 a.m. Bond was set at $20,000 as part of a warrant issued for his arrest.  Initial toxicology tests conducted after the wreck revealed Majors had cocaine in his system, Evansville Police Department spokesman Steve Green said.  Evansville resident Raymond Ferrari, 56, was killed in the July 29 accident on Evansville's West Side. Ferrari, driving a Pontiac Sunfire, was northbound on Rosenberger Avenue and trying to turn left onto the westbound Lloyd Expressway. A Robinson Engineering oil-rigging truck, driven by Majors, was traveling east on the Lloyd through the intersection.  Green said authorities determined Majors ran the red light. "Investigators say toxicology reports now show Majors had cocaine in his blood at the time of the accident July 29th. He crashed his oil truck into Ferrari's car."
According to the report, Ferrari's estate has filed a civil lawsuit against Robinson Engineering. 
What will be interesting is to see whether Majors has any history of abusing drugs or alcohol and whether Robinson Engineering have any policies and procedures to test drivers periodically to ensure they are not abusing substances.

To learn more about semi-truck wrecks, download our free E-Book:  What The Insiders Don't Want You To Know About Semi-Truck Wrecks.

You can also watch our video titled: The Six Things You Must Know If You've Been In a Car or Semi-Truck Wreck.
hans

Jury Awards $23.5 Million in Semi Truck Wreck Lawsuit

According to the Kansas City Star, a jury in Wichita rendered a $23.5 million verdict against a truck driver and her employer, Swift Transportation for their role in causing a horrible truck wreck in 2006.

According to the lawsuit, truck driver Robyn Getchel missed her turn while trying to pull into a rest stop and was trying to back-up on the highway when she was rear-ended by another semi.  The driver of the second rig, Dennis Bottorff, was killed instantly and his passenger, Terry Frederick, sufered severe spinal cord injuries leaving him completely disabled.

Likely driving the liability in this case were the facts that: (1) the at-fault driver was inexperienced (only driving for about 6 months), (2) had failed her commercial license exam several times, (3) had a history of drug use and (4) tested positive for methamphetamine in a post-acident drug test.

Everyday, big-rig semi-truck accidents occur all over Kentucky because companies, more concerned with profits than people, put inexperienced drivers behind the wheel.  The companies place unrealistic schedules on the drivers which often leads to the drivers abusing amphetamines to stay awake to drive longer distances and fudging log book entries so they can avoid the federally mandated rest periods.   Companies and drivers that operate in this careless manner have to be held accountable, regardless of whether it's in Wichita, Kansas or Louisville, Kentucky. 

Please download our free report on Semi Truck accidents here and watch our video on "The 6 Things You Must Know if You Have Been Injured in a Car or Semi-Truck Wreck".

hans

Louisville Mother Loses Lawsuit Against Louisville Metro Police

Attorneys Will Driscoll and Davied Friedman recently tried a very interesting wrongful death case in federal court in Louisville, Kentucky against the Metro Police department.  The basic facts of the case are that a young woman was murdered by her boyfriend following several abusive episodes.  A warrant for his arrest was taken out; however, it was never served.   Believe it or not, generally speaking, neither the fire department, EMS, 911, or the police have any affirmative duty to protect or rescue us.  To state it another way, if one of these entities fails to protect or rescue us from another person, they can't be sued.  Here is the Courier-Journal story.
Regardless of the outcome of the suit, it does illustrate a real problem...domestic violence.  It also higlights the flaws in our system.  I congratulate Will and David in their success of bringing this issue to light.
Hans

Louisville Hosptial Baptist East Cited By Medicare In Suicide Death

Medicare has threatened to stop federal funding to Baptist Hospital East following a patient's suicide last month.    State inspectors concluded that Baptist Hospital "failed to assure this patient's safety."  The patient has only been identified as a Jeffersontown (a suburb of Louisville) man whose son had passed away and going through a divorce.
The citation stems from the hospital's knowledge that the patient had expressed  a desire to drink himself to death and was depressed over his circumstances.  Even though two chaplains talked with the patient and concluded he was in a "critical and severe situation, the hosptial failed to place him in a psychiatric unit or under suicide watch.  The state determined that the hospital's failure to include steps in its written care plan to address his psychiatric concerns was a violation of its duty to its patients and such conditions "pose an immediate and serious threat" to patients.

Baptist will probably not lose any funding; however, this may not be the end of the issue for Baptist. 

These violations could lead to civil liability if the family chooses to file a lawsuit.  Hospitals owe a duty to their patients to proivde appropriate treatment, including protecting a suicidal patient from him or herself.  If a hospital violates its own policies and procedures- or fails to act like a reasonable hospital would in the same situation- and an injury or death results, the hospital is responsible for the harm.  Because the patient was only 56 years old, he was probably still working.  This means the man's estate can recover the reasonable value of what he would have earned over his lifetime (known as wrongful death) as well as a claim for pain and suffering (known as personal injury).  It is unclear from the article whether the man had any children under 18, but if he did then they would have a claim for the loss of love and affection of their father.  A child's consortium claim is measured from the date of injury through the 18th birthday.  The child's claim can be brought any time before his or her 19th birthday.  The wife also has a claim for loss of love and affection; however, it would likely be of very limited value for two reasons.  First, because they were already going through a divorce, it would be difficult to argue that there was any loss of love and affection.  Second, a spousal loss of consortium claim in Kentucky is limited to the time of injury until the time of death.  Here, that period of time would be only seconds or minutes.  Kentucky courts have held that a spousal consortium claim could not be brough in a case where the time between injury and death was only an hour.  Unless and until the law in Kentucky recognizes a spouse's right to claim a loss for the loss of love and affection after the death, we are severly limited in the claims we can make.  That being said, this exact issue is going to be addressed by the Kentucky Supreme Court in 2009.

hans

Associated Press Article Attributes Poor Care in Nursing Homes to Understaffing and Discusses 677 Million Dollar Verdict

This week, an associated press article attributes poor care in nursing homes to understaffing and, discusses the 677 million dollar verdict against a nursing home that failed to meet minimum staffing requirements.

Landmark $11 million Dolllar Nursing Home Verdict

PHOENIX, March 20 /PRNewswire/ -- An Arizona jury today awarded a landmark verdict of $11 million to the widow of a 36-year-old man with traumatic brain injury who died after ingesting foreign objects while in the care of Liberty Manor Residency, a Phoenix assisted living facility. The verdict included $2 million for the decedent, $5 million for the wife and $4 million in punitive damages. It was the largest verdict ever awarded against an assisted living facility in the United States.

"I want this to be a lasting victory for all individuals with TBI or other disabilities living in assisted living centers or group homes," said Lydia Scherrer, widow of Earl Scherrer, who died May 7, 2006, at the age of 36.

Earl Scherrer suffered a severe traumatic brain injury as a result of a car accident in 1996. He lapsed into a coma and was not expected to recover. Despite doctors' assessment that Mr. Scherrer's condition was permanent, Lydia Scherrer refused to disconnect her husband's life support. Earl Scherrer remained in a coma for 16 months before he began to slowly emerge. With his wife's nurturing and support, he slowly started to speak, albeit slowly. Mrs. Scherrer worked with her husband day after day, using first-and second-grade reading and math textbooks and other elementary learning tools to stimulate his brain function and coax him to reach his full potential.

Lydia Scherrer devoted many hours per week to her husband's recovery, but she also had to work and was forced to turn to assisted living and residential facilities to provide the 24-hour care her husband needed. For years, she visited him faithfully on her days off, every Tuesday and Wednesday, checking him out of the facility and taking him home.

On April 7, 2006, Mrs. Scherrer placed her husband in Liberty Manor Residency, a facility that purported to provide 24-hour supervision of its residents. One month later - on May 7, 2006 - she received a call saying her husband had been vomiting. Mrs. Scherrer rushed over to Liberty Manor, brought her husband home and gave him a bath. Within a matter of minutes, he began vomiting black matter and died in her arms.

Autopsy results showed a number of items - including plastic bags, unopened catsup packets, candy wrappers and paper towels - were found in Earl Scherrer's stomach and small intestines. The medical examiner determined these foreign objects were significant contributing factors to his death. The autopsy read in part, "hypertensive heart disease due to mechanical obstruction of the GI [gastrointestinal tract] from the foreign objects."

Lydia Scherrer, represented by Craig Knapp, of the Scottsdale law firm of Knapp & Roberts, brought claims against Liberty Manor for abuse and neglect, wrongful death and punitive damages.

At trial, it came to light that Liberty Manor made numerous false entries in its charts with respect to Earl Scherrer's care, including notations of care on days when Mrs. Scherrer had checked him out of the facility. Liberty Manor was also unable to produce Mr. Scherrer's alleged caregiver, an employee named Raul.

"Lydia Scherrer did not walk away from her husband, in life or in death," said her attorney, Craig Knapp. "Her hope is that this verdict will force the assisted living facility industry to set and meet higher standards of care for their residents, resulting in enhanced protections for the defenseless individuals trusted to the care of others.

HOUSE BILL 318…

COMES UP FOR A VOTE

IN THE HOUSE HEALTH & WELFARE COMMITTEE

THIS THURSDAY FEB. 19

AT NOON IN ROOM 169

OF THE CAPITOL ANNEX

IN FRANKFORT

 

THIS IS THE BILL THAT WILL REQUIRE

ALL NURSING HOMES IN THE STATE

TO POST THEIR RATING

BY THE NEW FEDERAL FIVE-STAR RATING SYSTEM

IN A PROMINENT PLACE IN THEIR FACILITY.

 

HERE'S WHAT YOU CAN DO

TO HELP GET THIS BILL PASSED AND

OUT OF THIS COMMITTEE AND ON TO

A VOTE ON THE FLOOR OF THE HOUSE.

 

1.  Call 1-800-372-7181 and ask the operator to send a message to the members of the House Health & Welfare Committee telling them that you want them to vote for HB 318.

 

The members of the Health & Welfare Committee are:

 

Rep. Tom Burch, Louisville (chair)

Rep. Bob DeWeese, Louisville (vice chair)

Rep. David Watkins, Henderson, (vice chair)

Rep. John Arnold, Sturgis

Rep. Scott Brinkman, Louisville

Rep. John "Bam" Carney, Campbellsville

Rep. Robert Damron, Nicholasville

Rep. Brent Housman, Paducah

Rep. Joni Jenkins, Shively

Rep. Mary Lou Marzian, Louisville

Rep. Reginald Meeks, Louisville

Rep. Tim Moore, Elizabethtown

Rep. Darryl Owens, Louisville

Rep. Ruth Ann Palumbo, Lexington

Rep. Susan Westrom, Lexington

Rep. Addia Wuchner, Burlington

 

2.  If you are a constituent of any of these, be sure to tell them that in your message.

 

3.  Follow up your call with a brief e-mail to each of them.  You can get their e-mail address by going to

http://www.lrc.ky.gov/whoswho/email.htm

 

4.  Attend the meeting yourself.  Come early and meet every committee member telling him or her you would like their vote for HB 318.  Don't be bashful.  Legislators are very nice people and will be happy to talk to you.

And if you can, thank them afterwards for their support.

 

5.  Call me if you have any questions……

BERNIE VONDERHEIDE

KENTUCKIANS FOR NURSING HOME REFORM

1530 Nicholasville Road

Lexington, KY  40503

 

Tel:  (859) 312-5617

Revealed: Top Ten Worst Winter Driving Mistakes...

1. 1. Driving too fast for conditions.  Regardless of whether you are in a four-wheel or two-wheel drive car, ice is ice and 4 wheels slide just as easy as 2.
2. 2.  Following other vehicles too closely.
3. 3. Overcorrecting on ice.  Learn how to control a skid. If you're traveling in a straight line, stay calm, take your foot off the gas and brake gently. Turn the steering wheel in the direction you want to go. If you slip on a corner, smoothly accelerate to transfer the weight to the rear wheels, which allows you to steer into the direction of the skid and regain control.
4. 4. Driving while tired.
5. 5. Driving with poor visibility.
6. 6. Driving on back roads.  When possible, stick to roads that are regularly treated.
7. 7. Not getting the car ready for winter.  Be sure to have tires properly inflated and some kitty litter or gravel for traction in case you get stuck in the snow.
8. 8. Failure to carry emergency gear. warm clothing like coats, hats, gloves and socks; flares; chains; matches in a waterproof container; long-lasting food like nuts, jerky, dried fruit or granola bars; water; kitty litter or sand for traction on slippery surfaces; jumper cables; a shovel; a cellphone; a first-aid kit; a flashlight; and a spare tire
9. 9. Leaving the car if you're stranded.  If the car is stalled and there's no help in sight, stay with the vehicle (unless it's in the road). It'll be the warmest, safest place to wait until help arrives. Run the engine 10 minutes each hour for heat, and clear the exhaust pipe of snow, ice or mud. Place flares about 50 feet in front of and behind the car, turn on hazard lights and, if it's not snowing, raise the hood to indicate you need help.
10. 10. Failing to check weather conditions before you leave.  If you must travel in poor weather conditions, be sure to tell a friend or family member where you are going, what route you intend to take, and when you plan to arrive.  That way, if something happens and you don't arrive on time, they'll know what route to check.

Hope these winter drving tips keep you safe and sound this season.

Hans