Utah Personal Injury Blog

Doctors Profit from Their Own Medical Malpractice

psummerill@gmail.com — 2013-04-25T08:54:30-06:00

A Recent Study Shows That Hospitals Make Money Off Their Own Medical Malpractice In Utah

A new study from the Journal of the American Medical Association suggests that hospitals could actually profit from their own negligence, lowering the incentive to implement procedures to reduce accidents and surgical complications. Simple things can often prevent medical malpractice, and a subsequent lawsuit for injury or death, like checklists reminding doctors to make sure they're about to operate on the right part of the body or give the right antibiotic, can have dramatic results. Other times, incompetence or a genuine mistake during surgery or diagnosis can lead to complications. However, the medical error, mistake or misdiagnosis means that a lawsuit may ensue for medical malpractice. Of course, the hospital or doctor may also profit from the complications because treating those complications costs money. The upside then, to filing suit for medical malpractice with a good lawyer in Utah removes the incentive to make money off the mistakes. Physicians, surgeons and hospitals following best practices and safety rules are less likely to harm patients or cause death and, therefore, less likely to harm the patient.

If you or a family member has been harmed, contact one of our experienced medical malpractice lawyers in Utah to help you with your case. It gives the hospital a reason to avoid making the same preventable error on another patient.

Brigham City Worker Killed in Roof Collapse

psummerill@gmail.com — 2013-04-11T14:56:47-06:00

Wrongful Death Claim for Worker Killed in Brigham City Roof Collapse?

A worker died recently when the roof of a vacant K-Mart building collapsed in Brigham City. Worker’s compensation often provides benefits for unfortunate tragedies. However, the family and heirs would be well-advised to seek assistance of an experienced wrongful death lawyer in Utah. There may be other oversights and negligence which led to the unfortunate and possibly preventable death of an individual. Under Utah law, wrongful death suits have special protection and employers as well as other individuals including sub-contractors, designers, architects and engineers can be held accountable for the unnecessary loss of life.

Utah Lawyer Peter Summerill Recognized as Utah Legal Elite

psummerill@gmail.com — 2013-03-19T10:27:24-06:00

Utah Business Magazine Awards “Legal Elite” Status to Personal Injury and Wrongful Death Lawyer Peter Summerill

Utah Business Magazine recently recognized firm partner Peter Summerill as one of Utah’s “Legal Elite” in the area of personal injury law. Mr. Summerill has represented many individuals over the years for a wide variety of injury and wrongful death claims in Utah. Mr. Summerill believes that if someone is hurt or killed as a result of negligence or careless conduct, the wrongdoer should be held held accountable and the victim and their family should be compensated. Mr. Summerill makes it his job to hold the insurance companies to their promises and to make sure that the army of lawyers they hire cannot work to avoid just compensation for injury and wrongful death victims.

Civil Rights & Wrongful Death Law

psummerill@gmail.com — 2012-12-15T08:50:56-07:00

Utah District Court Ruling - Civil Rights - “Danger Creation” Theory & Wrongful Death

In Thayer v. Washington County School District, the district court held that defendant Officer Richan was entitled to a summary judgment dismissing the allegations against him brought pursuant to 42 U.S.C. § 1983 (civil action for deprivation of any rights, privileges, or immunities secured by the Constitution and laws). The case involved the wrongful death of a high school student who shot himself in the temple with a blank from a .38 caliber revolver at Desert Hills High School in St. George, Utah. The gun had been brought onto campus to be used as a prop in the play “Oklahoma.” Officer Stacy Richan, a police officer with the St. George Police Department, who was on assignment to the high school as its special resource officer, had been asked what the rules would be to bring the gun on campus to be used in the play.
The plaintiffs’ case against Officer Richan was based on a “danger creation” theory, whose key lied in the “state actors’ culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid.” Under the theory, the court ruled that “the danger creation theory permits liability against a state actor only when there is either actual wrongful intent or recklessness that is sufficiently egregious to shock the conscience.”
In analyzing the six-part test, the court ruled that the risk was not “substantial” and the harm was not “immediate” because the harm did not occur on the same day that Officer Richan allowed the gun to be brought on campus by a student rather than by an adult where Officer Richan believed his rules would be followed by another adult, the school’s drama coach. The court also ruled that the risk was not known or obvious, that Officer Richan did not act recklessly in conscious disregard of the risk, and that Officer Richan’s actions did not “shock the conscience.”
Experienced Utah wrongful death lawyers must be consulted in any case involving allegations that government agencies, employees or officials caused or contributed to the death. In addition to statutory claims under 42 U.S.C. § 1983, there may be claims under the Utah Constitution as well as claims under Utah’s governmental immunity act.

Wrongful Death or Personal Injury Due to Propane or Gas in Utah

psummerill@gmail.com — 2012-11-24T09:27:27-07:00

Utah Wrongful Death or Injury Due to Propane or Natural Gas

As the weather cools down in Utah, many people turn up their heaters and some use portable propane heaters to keep the chill at bay. However, carbon monoxide gas, an odorless byproduct of furnaces, water heaters and propane space heaters can cause death or serious brain injury. Lots of propane space heaters have been made over the years, and they are either handed down, sold at garage sales or found up in the attic and put to use. Heater as old as 1963 may still be in service, and not too long ago the Consumer Products Safety Commission issued a recall on one of these old heaters because it had a faulty burner, leaking poisonous carbon monoxides and causing the death of several people.

Carbon monoxide can be generated by both natural gas and propane fueled furnaces, water heaters and space heaters and can bring about death or serious brain injury if there is not proper ventilation or the unit is malfunctioning or defective. A negligently installed unit may not be properly ventilated, or properly tuned and calibrated, leading to the accumulation of CO and death. Because many furnaces and heaters have not been run all summer, and because CO is odorless, serious injuries and wrongful death can follow since furnace or heater has not been properly adjusted, filters have not been change or etc. Warning symptoms of carbon monoxide poisoning include: dizziness, light headed, nauseated and can sometimes even feel like you are just ill or coming down with a mild flu. Seek prompt medical attention especially if these symptoms accompany recent start up of furnaces, water heaters, or portable propane heaters and or gas powered generators. Also seek professional to inspect your equipment and make sure that everything is functioning properly and install CO detectors to avoid personal injury or wrongful death. If you have been harmed, injured or lost a loved one due to wrongful death, seek a Utah wrongful death or personal injury lawyer in Utah who can help. Wrongful death and personal injury due to propane or natural gas in Utah is often due to negligence or products liability and the law provides a right of action to seek compensation for the losses.

Hotel Liability - Wrongful Death

psummerill@gmail.com — 2012-11-02T15:42:26-06:00

Can A Hotel or Motel Be Held Liable Under Utah Law for Wrongful Death or Personal Injury?

Hotels and motels can be held liable under Utah law for a variety of injuries as well as wrongful death. Utah lawyers regularly represent claims against hotel owners for everything from slip and fall to wrongful death to assault and battery. Premises liability, security issues and general maintenance can all form the basis for such claims. Additionally, because hotels and motels are a ‘take all comers’ operation, pre-injury releases do not apply and it may be the case that the hotel or motel is subject to even greater duties of care than the general public. Recently, an out of state Marriott Hotel has been named in a wrongful death lawsuit, claiming a guest dining at the hotel in July inhaled "dangerous aerosolized water vapor contaminated with Legionella bacteria" and died a month later. The bacteria was found in a fountain in the main lobby. The suit accuses the hotel of negligence and failing to maintain "appropriate control measures." This is just one example lawsuits against hotels and motels. As always, it is imperative to contact a good Utah injury or wrongful death lawyer as soon as possible to preserve any claim or right to bring a lawsuit.

Medical Malpractice Lawsuits In Utah - A Step Forward for Patient Rights

psummerill@gmail.com — 2012-10-22T11:12:16-06:00

Early Disclosure - Early Resolution: Medical Malpractice Mistakes, Compensation & Progress in Utah

I recently had the honor of meeting with Utah Lt. Governor Greg Bell, Dr. Ed Clark, and Dr. Lisa Gunther. As an attorney who works with patients harmed or killed due to a medical mistake, I was apprehensive and very suspicious. The program presented to us by Dr. Clark is an ‘early disclosure, early resolution’ system whereby doctors, nursing and hospital staff acknowledge whenever there has been an error which caused harm or death to a patient. The staff then disclose this fact to the patient and/or their family and they are offered the opportunity to openly discuss the occurrence and also offered the opportunity to work toward a mediated compensation arrangement.

Lt. Governor Bell posted about patient oriented medical malpractice reform on his blog. Highlights include:

Medical malpractice does occur sometimes and when it does the patient should be compensated.
[W]e must permit, and the Utah and U.S. Constitutions ensure that citizens have the right to present their case to a court.
When an adverse event occurs, the doctor and hospital disclose the problem and its cause to the patient. The patient may involve their family and hire counsel if they wish. No waiver of liability is required. The doctor and hospital will give consolation and advice, and if warranted, apologize, accept responsibility, and give fair compensation.
The beauty of this method is that the paramount relationship of doctor-patient is preserved rather than destroyed in an adversarial climate. This system requires no legislation, is completely voluntary, and is a human rather than a legal solution to real human problems.

Not specifically mentioned by the Lt. Governor, but equally important, the transparency associated with such a system also increases patient safety. By discussing the medical negligence early and openly, steps can be taken to prevent similar cases from occurring in the future. Additionally, the family can obtain compensation at an earlier stage, leading to improved care and financial ability to deal with the consequences that inevitably flow from a medical error that can either result in death or serious impairment.

Most importantly, the medical malpractice mediation approach allows the family and victims to bring a Utah medical malpractice attorney with them to any mediation. This is very important because the hospitals and risk managers on the other side of the table have a tremendous information advantage over the injured malpractice victims. By allowing families to bring lawyers, the family can be assured that they are adequately represented and get a fair shake through any medical malpractice mediation program.

Hospitals Are Killing Us

psummerill@gmail.com — 2012-09-25T07:51:43-06:00

Are Utah Hospitals and Doctors Killing Their Patients?

A recent Wall Street Journal article does an amazing job of setting out the truth about medical malpractice, death and injury:

“When there is a plane crash in the U.S., even a minor one, it makes headlines. There is a thorough federal investigation, and the tragedy often yields important lessons for the aviation industry. Pilots and airlines thus learn how to do their jobs more safely.
The world of American medicine is far deadlier: Medical mistakes kill enough people each week to fill four jumbo jets. But these mistakes go largely unnoticed by the world at large, and the medical community rarely learns from them.”

You can read the full article here. The article is authored by a physician and, in plain and simple terms, details the problem with american hospitals and healthcare. There is a built in code of silence which prevents people, consumers, patients and their families from ever learning the truth about how a loved one suffered from a preventable medical mistake. We often hear clients tell us that they just cannot get a straight answer from anyone or, worse, that a nurse or other healthcare provider has ‘whispered’ to them and told them they should seek an attorney to help investigate the death or injury. The healthcare industry should be alarmed that so many people die and are injured by medical malpractice. The cure to malpractice litigation is to stop killing and injuring patients. Tort reform does nothing more than treat the symptom of a disease and, as any doctor can tell you, you must find the source in order provide a cure.

Head Injury Risk to Infants - Utah Recall

psummerill@gmail.com — 2012-09-05T21:59:28-06:00

Head Injuries Can Lead to Serious, Life Threatening Complications. Bathing Seat Recalled Due to Risk.

The Consumer Product Safety Commission and the manufacturer of infant bathing seats have issued a recall due to risk of injury to infants. The bathing seat frame can collapse, resulting in serious personal injury to infants.

When the bather is lifted and/or carried with an infant in it, its folding wire frame can suddenly disengage from the side hinge, dropping the baby out of the bather, posing a fall hazard and a risk of serious head injury to infants.

Reported injuries include skull fractures and bleeding on the brain. Under Utah law, a product is considered unreasonably dangerous if it works in a way that a normal user would not expect. Collapse of the device and causing a head injury is certainly outside the expectations of the normal Utah user.

Golf Course Updates Paths Following Injury

psummerill@gmail.com — 2012-08-31T21:58:05-06:00

More Than Two Years After Jury Verdict In Personal Injury Lawsuit, Golf Course Updates Cart Paths

In April of 2010 a jury found that Ogden City was negligent in designing and maintaining their golf cart paths, leading to a serious personal injury. Our firm handled the lawsuit for damages as a result of the negligence of Ogden City. Recently, the Standard Examiner ran a story revealing that Mt. Ogden Golf Course paths have finally been updated. Hopefully, those paths have been re-graded and widened in a manner that helps prevent future injury. It only took two years, but we are glad that the golf course is taking steps to improve the safety of their golf course. Premises liability (aka slip and fall) style cases can cause serious injury and even result in wrongful death or paralysis. Our Utah personal injury lawyer and wrongful death attorneys regularly handle such cases.

Medical Malpractice - Victim Claims Not Breaking the Bank

psummerill@gmail.com — 2012-08-17T16:09:24-06:00

Exposing Medical Malpractice Myths - The Only Crises Are Those Faced By Victims

It is almost universally and unquestionably accepted: medical malpractice lawyers are to blame for increased costs of health insurance. Sadly, the victims of medical malpractice almost always get lost in this discussion. The only universal truth is that people injured by negligence or their families in cases of death are almost never made whole by a lawsuit. The doctor’s and hospital’s lawyers get paid hourly to fight these claims and the longer they drag on, the more the defense lawyers get paid. Utah lawyers representing medical malpractice plaintiff’s in lawsuits know that, contrary to popular belief, neither the medical malpractice insurers nor the doctors are going broke over lawsuits.

By almost any measure, medical malpractice payments were at their lowest level on record in 2011, a new Public Citizen report shows. Both the number of medical malpractice payments made on behalf of doctors and the inflation-adjusted value of such payments were at their lowest levels since 1991, the earliest full year in which the government collected such data. But, contrary to the promises of policy makers and leaders of physician groups who have spent the past two decades championing efforts to restrict patients’ legal rights, there is no evidence that patients have received any benefits—economic or otherwise—in exchange for ceding access to legal remedies. Instead, the evidence suggests that malpractice victims, taxpayers, and ordinary patients are almost certainly bearing significant costs for uncompensated medical errors. (Source: Public Citizen).

Utah Injury Lawsuits And Collateral Sources

psummerill@gmail.com — 2012-08-02T17:08:50-06:00

The Collateral Source Rule in Utah: Evidence of Insurance in Personal Injury, Wrongful Death and Medical Malpractice Lawsuits

Often times, whenever there is an injury or death, health insurance has paid some of the medical expenses that occur. When there is a lawsuit for medical malpractice, wrongful death or personal injury, the health insurance companies expect that they can be repaid for the damages caused by the negligence of the defendant. In other words, just because you have health insurance, doesn’t mean that a physician or defendant should be given the benefit of that insurance. So, as part of any recovery, often times the health insurance companies will need to be reimbursed out of any recovery or judgment obtained against the defendant in a personal injury lawsuit under Utah law.

However, this doesn’t mean that the jury or the court should consider evidence of that insurance. Specifically, juries and courts do not consider the existence or payment by health insurance for injuries sustained as a result of negligence. Accordingly, lawyers are not allowed to refer to the existence of health insurance as part of their case because it may prejudice the jury and reduce the ultimate amount of liability imposed upon the defendant. In a recent Utah Supreme Court case, Wilson v IHC,the court ruled that even hinting or alluding to the existence of health insurance or payment of benefits for the plaintiff is wrong and should not be done. The tortfeasor, also known as the defendant, in a medical malpractice, wrongful death, or personal injury lawsuit under Utah law must be held accountable for the full amount of the harm that they have cost. This is irrespective of the existence of any health-insurance benefits. Moreover, the health insurance companies are entitled to reimbursement in any event. Even if they are not a party to a lawsuit currently before the jury.

Contractors Liable for Injury At Work In Utah?

psummerill@gmail.com — 2012-07-26T16:02:59-06:00

General Contractors May Be Liable for Personal Injury or Wrongful Death to a Subcontractor’s Employee Under Utah Law

In Gonzales v. Russell Sorensen Construction, 2012 UT App 154 (May 24, 2012), the Utah Supreme Court affirmed the trial court’s denial of a general contractor’s motion for summary judgment. The case recognized that general contractors may be liable on a theory of premises liability. The Utah case also recognized that general contractors can be held liable for personal injury or death of a subcontractor on the basis of direct negligence.

In Gonzales, a worker brought an injury claim against the general contractor. The appeal focused on a general contractor’s potential liability for injuries allegedly resulting from a hazardous condition on the job site. Gonzales sued the general contractor, Sorensen, and the subcontractor, John Clayton Construction (Clayton), after falling from some scaffolding at a job site. Gonzales fell from the scaffolding because a piece of aluminum that he was holding onto while on the scaffolding came into contact with high-voltage power lines that hung within 10 feet of the roof of the building. In its motion for summary judgment, Sorensen contended that, as a general contractor, it could not be liable for a workplace injury or wrongful death unless Sorensen had exercised direct control over the injury-causing aspect of the work. The trial court denied Sorensen’s motion and held that when an owner relinquishes control of property to a general contractor, that contractor must be responsible for any conditions it creates on the property, specifically, in this matter, the constructing of a building and its resulting conditions.

Sorensen raised two challenges to the denial of summary judgment. First, Sorensen contended that Gonzalez’s amended complaint failed to sufficiently plead the theory of premises liability, barring him from raising that theory in his memorandum in opposition to summary judgment. Second, Sorensen contended that the trial court erroneously relied on section 384 of the Restatement (Second) of Torts to conclude that Sorensen owed a duty of care to Gonzalez as an employee of an independent contractor.

After dispensing with Sorensen’s first argument, the court of appeals went on to rule that section 384 of the Restatement (Second) of Torts does state Utah law governing the liability of general contractors for harm caused to others by conditions at a job site and that Gonzalez alleged material facts to support a claim of direct negligence based on principles articulated in section 384. In particular, Gonzales had claimed that Sorensen violated its duty of care with respect to the premises of the job site because Sorensen constructed or oversaw the construction of the building too close to energized power lines, or knew of the building’s dangerous proximity to them, and could have foreseen harm to Gonzalez and other subcontractors and employees. The court ruled that these material facts that Gonzales had alleged could support a claim of direct negligence based on principles articulated in section 384 of the Restatement (Second) of Torts.

Gonzalez v Sorenson Construction

Car Accidents, Texting and Teens in Utah

psummerill@gmail.com — 2012-07-05T13:09:47-06:00

One third of teens text or email while driving, according to a Centers for Disease Control survey. Distracted driving kills and injures hundreds of people every year. Many studies demonstrate that texting while driving is as bad, or worse than, drinking and driving. According to the CDC Study of Teen Risk Behaviors While Driving “During the 30 days before the survey, 32.8% of high school students nationwide had texted or e-mailed while driving” and “U.S. high school students have shown significant progress over the past two decades in improving many health-risk behaviors associated with the leading cause of death among youth—motor vehicle crashes—according to the 2011 National Youth Risk Behavior Survey (YRBS) released today by the Centers for Disease Control and Prevention. However, youth are engaging in other dangerous practices such as texting and emailing while driving.” So, while more teens are wearing their seat belts, more of them are texting and driving. The kids might be a bit safer, but Utah roads have become far more deadly due to distracted driving behaviors.

Injury Lawsuits, Utah Law and Lawyers

psummerill@gmail.com — 2012-06-08T10:41:00-06:00

Embarrassed to file a Utah lawsuit for personal injury

The most common theme from every client and potential client we meet with? “I never thought I’d be the type of person to sue for medical malpractice/personal injury/auto accident.” Unfortunately, many people do not realize just how devastating the costs can be from a personal injury accident. Medical malpractice victims can experience the worst of injuries, including death, because a simple procedure, or safety rule was not followed, i.e. the doctor, nurse or hospital was negligent. So, too, in auto accident cases, people can be catastrophically harmed and lose enormous amounts of wages, aka lost income, because someone ignored a stop sign, failed to yield the right-of-way, or was distracted by their cell phone or text message.

Personal injury lawyers and lawsuits enforce accountability and act as a deterrent to negligent conduct.

Although there may be some embarrassment in pursuing a lawsuit for personal injury, people need to understand that lawyers and these type of lawsuits support to very important principles of justice. First, someone hurt by the negligence of another should not be forced to bear the costs. Just because someone wasn’t paying attention or violated a safety rule, doesn’t mean that the victim should have to shoulder the costs of lost wages, medical expenses and pain and suffering. Our justice system demands that the wrongdoer be held accountable for the harm that they cause. Second, if hospitals, doctors, drivers and corporations know that they will be held accountable for ignoring safety rules, they will act more carefully to follow keep people safe from harm. This is called the ‘deterrent’ effect of personal injury law. Deterrence works to keep people following safety rules and to keep them from acting negligently in a way that causes needless injury or death.

Don’t let a negligent actor become a repeat offender. Only by pursuing a lawsuit can we enforce accountability and deter future negligence. Talk to one of our Utah injury attorneys today.

Distracted Driving Kills and Injures Too Many.

psummerill@gmail.com — 2012-05-30T07:55:56-06:00

More than 3,000 people lost their lives last year in distraction-related accidents according to a study by the National Transportation Safety Board. Due to the ever increasing use of cel phones while driving, the dangers are getting higher every day. Death, personal injury, lost wages and medical expenses can all be avoided if people will just set aside their cel phones while they drive.

Safety and avoiding car accidents requires a ban on cel phone use while driving.

The NTSB reported that, for the first time, they were calling to end the use of all portable electronic devices while operating a motor vehicle. In No call, no text, no update behind the wheel: NSTB calls for nationwide ban on PEDs while driving the safety recommendation specifically calls for the 50 states to ban the nonemergency use of portable electronic devices, including cel phones, for all drivers. “No call, no text, no update is worth a human life.” Utah law and law enforcement need to find a way to stop distracted driving from causing car accidents.

Several incidents prompted the recommendation, including a situation where a pickup truck ran into the back of a semi-trailer that had slowed due to an active construction zone. The pickup was then struck from behind by a school bus. The ensuing chain of events resulted in two deaths and 38 other people being injured. After investigating, the NTSB found that the pickup truck driver has sent and received 11 text messages in the 11 minutes leading up to the crash. The last text was received moments before the pickup truck ploughed into the big rig.

If you need a Utah lawyer to handle a distracted driving car crash, give us a call immediately 801-326-8400.

Underinsured Motorist Coverage for Utah Auto Accidents

psummerill@gmail.com — 2012-05-26T07:32:49-06:00

Underinsured motorist coverage, sometimes called UIM, provides you and your passengers with additional insurance in case the driver who causes the crash doesn’t have enough insurance to pay for the harms he causes, including death. Under Utah law, your UIM coverage should automatically meet the amount of your liability coverage. However, signing a waiver with your insurance company can reduce that amount, or reject the coverage altogether. Even though it might seem like it saves you a few bucks, it is not a good idea to waive or reduce your underinsured or uninsured coverage. The premiums on this type of auto insurance coverage are very low and many people only carry the bare minimum $25,000 in liability coverage.

Auto Accidents and Underinsured Coverage Where There Is A Waiver Under Utah Law.

Recently, the Utah Supreme Court decided a case involving a whether a waiver form sufficiently educated the customer about UIM coverage. The court held that any such waiver form must include a “reasonable explanation.” In Lopez v United Automobile Insurance Company, Ms. Lopez alleged that United’s waiver form for rejecting underinsured motorist (“UIM”) coverage did not provide a reasonable explanation of UIM coverage as required under Utah Code, and thus the waiver was invalid and Ms. Lopez was entitled to the statutory UIM coverage of $25,000. (Under Utah Code § 31A-22-305.3(2)(g)(i)-(ii), an insured “may reject [UIM] coverage by an express writing to the insurer . . . . on a form provided by the insurer that includes a reasonable explanation of the purpose of [UIM] coverage and when it would be applicable.”)

In the case, Lopez was riding as a passenger in a car when another vehicle rear ended her car. The driver and owner of the vehicle that Ms. Lopez was riding had purchased an insurance policy from United, selecting uninsured motorist coverage equal to her bodily injury liability limits of $25,000, but rejecting underinsured motorist coverage by signing United’s waiver. United’s waiver read:
Utah Insurance Code Section 31A-22-305 requires that every automobile policy include Uninsured/Underinsured Motorists Bodily Injury Coverage with limits equal to the Bodily Injury limit, unless you select a different limit than your Bodily Injury Coverage or reject the Uninsured/Underinsured Motorists Bodily Injury Coverage entirely. Uninsured/Underinsured Motorists Bodily Injury Coverage provides payment of certain benefits for damages caused by the owner or operator of uninsured/underinsured motor vehicles because of bodily injury, sickness, disease or death.

The Utah Supreme Court ruled that United’s waiver language was not a “reasonable explanation” of UIM coverage because it did not define the term “underinsured,” failed to differentiate between “underinsured” and “uninsured,” and did not adequately explain the benefits of UIM coverage and when they apply. As a result, Ms. Lopez was entitled to $25,000 of UIM coverage. However, the Utah Supreme Court then ruled that Ms. Lopez was not automatically entitled to the $25,000, but that her case had to be remanded back to the district court to determine the amount of damages Ms. Lopez actually sustained. This will require that the case be further pursued to prove that her injuries and losses due to the car crash, including any wage loss, have not already been covered by other insurance. Underinsured coverage usually works this way, covering injury, hospital bills, and damages due to death where there is not enough automobile or other insurance coverage available. Uninsured coverage, on the other hand, covers you or your passengers when there is no other coverage available, e.g. when the driver who causes the accident is either a hit-and-run or when the driver who causes the accident is not insured at all.

Injury, Landlord Liability and Exculpatory Clauses in Residential Leases

psummerill@gmail.com — 2012-05-14T21:04:32-06:00

Can landlords immunize themselves against liability for injury or death caused by their own negligence through an ‘exculpatory’ clause in a residential lease? We recently argued to the Utah Supreme Court that landlords, property management companies and apartment owners should not be able to shield themselves against liability when someone dies or is harmed because of the landlord or property management company’s own negligence or carelessness. As part of that argument, we urged the court to recognize that because they are providing a public service when they rent property to families, landlords cannot legally prevent themselves from being sued by placing exculpatory clauses or pre-injury release language in the lease agreement. The case involved a fire in an apartment complex which caused substantial property damage as well as resulted in the death of one of the tenants. The Utah Supreme Court decided the case of Broderick v AMC, Canyon Cove in our favor, but didn’t directly address the issues raised. Nonetheless, the opinion seems favorable and, if faced with the same issue again in the future, a Utah appellate court may well invalidate such pre-injury release language.

Bowel Injury and Medical Malpractice in Utah

psummerill@gmail.com — 2012-05-03T15:39:20-06:00

Bowel injuries commonly occur during medical procedures and can lead to extreme complications including sepsis and death. Medical malpractice claims often arise at the point that doctors and hospitals fail to recognize the existence of a bowel injury.

The simple fact of a bowel, colon or intestinal perforation is not, usually, the result of medical malpractice. Such injuries are often a known risk of undergoing a procedure such as hernia repair, gastric bypass, gall bladder removal or other abdominal procedure. Diverticulitis can also give rise to a perforated bowel. Whether the injury occurs during surgery such as laparotomy or laparoscopy, or arises spontaneously, the important thing is that the injury is treated. If the hole in the bowel is significant enough, it may require surgical intervention. Other times, placing drains and starting antibiotics is sufficient to treat the condition and the perforation will heal on its own.

In the absence of treatment, feces, stool and other intestinal contents begin leaking into the peritoneum. The bacteria and disease from these bowel contents quickly give rise to abdominal pain and begin to create an infectious process and inflammation. Bowel movements may cease as does passing gas. The stomach becomes bloated and painful. Eventually, other organs become involved as the colon continues to breakdown. If left untreated, sepsis sets in and portions of the colon and bowel begin to die. The need for intervention and proper care from surgeons, doctors and hospital is key because eventually death will result.

A key component to any medical malpractice claim for perforated bowels is timing and an understanding of the legal claims involved. A good medical malpractice lawyer should be consulted regarding the potential for a lawsuit.

Bicycles & Cars - Narrow Margins for Error

psummerill@gmail.com — 2012-04-20T14:12:04-06:00

With warming spring weather, more and more bicycles are getting out on the road. The consequences of a collision between a car or truck and a bicycle rider can be catastrophic. According to a ten year retrospective study (Bike Accident Injury Fact Sheet), during the years 1993 - 2002, 66 people died as a result of collisions between bikes and car or trucks. Many of these wrongful deaths could have been avoided. Additionally, on average over 452 people are seen in emergency rooms every year for bicycle related injuries with hospital bills averaging a total of $1.2 million.

Utah law imposes a duty on drivers to avoid collisions with bicycles. Utah drivers must treat bicyclists the same as other vehicles on the road, pass bicycles in the same way they would pass another car or truck, allow at least three feet of clearance when passing a bike, and cannot drive or park in a bike lane. Drivers should also be very careful around children on bicycles as they react unpredictably and, where there is one, there is usually another chasing right behind. Utah’s publication Share the Road Bike Safet contains a nice breakdown of the rules for drivers and bicyclists which can help avoid unnecessary injury or death.

Physicians & Third Party Safety

psummerill@gmail.com — 2012-04-04T07:59:33-06:00

Doctors must consider the safety of other people besides the patient when providing their services. If a physician knows or should know that his treatment can harm people who come in contact with the patient, the doctor is responsible for that harm including wrongful death. The most obvious example would be a doctor who injects a patient with a drug that makes the patient a hazard to the driving public. If the patient, under the influence of the drug, then leaves the clinic crashes into a family, the doctor may be responsible for giving the patient a drug and allowing him to drive away from the clinic.

The Utah Supreme Court recently held in Jeffs v West, 2012 UT 11 (February 28, 2012) that a physician owes non-patients a duty to exercise reasonable care when prescribing medications that pose a risk of injury to third parties. The patient received medical treatment from a nurse practitioner Draper and was prescribed at least six different medications, including Concerta, Valium, Doxepin, Paxil, pregnenolone, and testosterone. With all of these drugs in his system, the patient shot and killed his wife. The children claimed that the clinic and nurse practitioner were negligent in prescribing this cocktail of drugs which dramatically altered the ability of the patient to reason and think, bringing about a violent outburst and his wife’s death.

Often, under Utah law, the question of liability turns on whether there is a “special legal relationship.” The defendants contended that healthcare providers owe no duty to a non-patient who has been injured by a patient unless the patient has a special relationship with the provider—such as where the provider has custody or control of the patient, or where the provider is on notice that the patient is uniquely dangerous to specified third parties. However, in this case, the Utah Supreme Court rejected this argument. Instead, the court sided with the plaintiffs, who argued that a special relationship is required “only where a claim is based on an omission or a failure to act.” The court held that acts of misfeasance, or “active misconduct working positive injury to others,” typically carry a duty of care. On the other hand, the court ruled that passive inaction, or “a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant,” generally implicates a duty only in cases of special legal relationships.

Because the doctor actively prescribed a dangerous cocktail of medications to the patient, the doctor and clinic could be held accountable for the harm caused, in this case the wrongful death of the mother. “Healthcare providers perform a societal function of undoubted social utility. But they are not entitled to an elevated status in tort law that would categorically immunize them from liability when their negligent prescriptions cause physical injury to non-patients. We uphold a duty of healthcare providers to non-patients in the affirmative act of prescribing medication, and reverse the district court’s conclusion to the contrary.”

Utah Supreme Court Recognizes Wrongful Death Claim for Unborn Child

psummerill@gmail.com — 2012-03-28T22:20:23-06:00

In Carranza v. United States, the parents brought wrongful death action against the United States after the death of their unborn child. Although there was no majority opinion, four members of the court held that a state statute allows an action for the wrongful death of an unborn child; the term “minor child,” as used in the statute, includes an unborn child. The case involved a claim for wrongful death following the stillbirth of the parents child. The parents alleged medical negligence and sought damages for their pain and suffering, for the wrongful death of their child, and for expenses related to the child’s death. The United States sought to exclude all evidence regarding damages due to wrongful death. Although the justices differed in their reasoning, the court held that a claim can be maintained for the death of an unborn minor child. Contact an attorney who handles wrongful death and medical malpractice claims if you need help. The complete opinion on the status of an unborn child and the ability to bring a wrongful death claim can be downloaded.
Carranza v United States

Premises Liability aka Slip and Fall

psummerill@gmail.com — 2012-01-27T06:23:31-07:00

Slip, trip and falls cause a huge amount of harm to society at large in the form of lost working hours, increased costs to medical insurance, lost household services and reduced productivity. According to the Federal Bureau of Labor Statistics, well over 200,000 people are injured every at work as a result of a slip, trip or fall. Additionally, data from the CDC indicate that injury due to a slip, trip or fall resulted in over 7 million emergency room visits and a combined cost of medical and wage lost costs in excess of $31,000,000 dollars.

Aside from the pure economic losses, a slip and fall injury also imposes a good deal of pain, suffering, humiliation and loss of self esteem on the victim.

Utah’s varying climate can create hazards such as snow and ice which increase the likelihood that a fall will occur and the severity of the injuries. Unfortunately, many of these falls and injuries could be prevented simply through common sense maintenance and elimination of safety hazards. Oftentimes, the slip and fall is caused by poor construction which does not comply with building codes or ADA requirements, poor maintenance of sidewalks or other common areas or inadequate safety rails or handrails. Adding insult to injury, the insurers for property usually refuse to pay for even the medical expenses which arise because of the property owner’s negligence. Ultimately, many people injured by poorly maintained or constructed public areas are forced to file a lawsuit.

Our firm has handled many slip and fall injury claims and we recognize the embarrassment and sense of frustration that victims experience, including the need to bring a lawsuit for what should obviously be taken care of by the store or property owner. If you feel somewhat shy about contacting lawyer for help with a slip and fall injury, you are not alone. Almost everyone who contacts us always says “I’m not the type to sue.” The truth is that most people do not like to file a lawsuit. But, in slip and fall cases, it is highly unlikely that the insurance company will pay anything on your claim without the help of a lawyer.

Wahlquist Departure

psummerill@gmail.com — 2011-10-06T10:07:41-06:00

Effective October 10, 2011 Todd Wahlquist is no longer with our firm. Todd has accepted a position with the Utah State Bar Office of Professional Conduct. Todd's long time dedication to helping people injured by medical negligence led him to become a well recognized and well respected attorney in Utah's medical malpractice area. Over the years he worked hard to get justice and a fair result in cases ranging from catastrophically injured newborns, to the elderly harmed by an uncaring health care provider, hospital, or surgeon. Our office will continue to carry on the fight for those who need help resolving a medical malpractice dispute.

Advanced Care Health Directives

psummerill@gmail.com — 2011-04-16T10:44:48-06:00

One thing you can do to help your family in the event you suffer a permanent injury due to negligence or medical malpractice is to make sure you have an advance care health directive in place. Often, the consequences of medical malpractice can you leave you in a comatose or persistent vegetative state. Or, a sudden traumatic event such as a car crash or accident can leave you unable to voice your opinions regarding your own healthcare.

Many people have very personal desires about how their healthcare should be handled under these difficult circumstances. Unfortunately, Mom might think that all life care measures should be given while Spouse thinks that only maintenance type measures, such as feeding tubes, should be maintained because that’s what her Husband told her. Don’t leave your family arguing over your hospital bed in addition to dealing with the grief of knowing that a loved one has been permanently incapacitated due to the negligence of a hospital, nurse or doctor.

Under Utah law, there is a very simple form that everyone should fill out ... RIGHT NOW. Waiting until a car crash or anesthesia overdose may be too late. There is a very simple form available online and approved by the Utah Department of Human Services. You can fill the form out online by going here or you can click this link to download a copy of the form. Once you have filled the form, give a copy to your loved ones, especially the person named to make a decision. No one wants to think about the worst thing that can happen. So, you shouldn’t force those you love to think about it or worse, argue over the decision because you didn’t take the time to fill out a simple form.

But Will It Carry Malpractice Insurance?

psummerill@gmail.com — 2011-03-23T11:40:33-06:00

Recently a computer built by IBM beat two human contestants on the game show Jeopardy! The computer, named Watson, is now being tested to see if it can provide answers to medical questions as well. Modern medicine focuses on an ‘evidence’ based approach where the provider rules out illnesses and disease through a process known as a differential diagnosis. Sometimes, providers try to jump ahead in the absence of evidence. A provider might not run all the available tests or labs and then miss a crucial diagnosis which puts the patient’s life at risk. For example, an emergency room might assume that a patient is merely experiencing heart burn, when in fact they are suffering from early signs of a heart attack. Or, a doctor might jump to the conclusion that a patient is simply light headed and dizzy due to dehydration and miss the brain tumor because a test or scan wasn’t performed.

Watson, of course, wouldn’t make assumptions. Watson, however, might miss subtle clues provided by the patient or by a physical exam, clues which only another human might pick up on. The real question, then, is whether Watson would carry malpractice insurance to cover losses sustained when it makes a mistake resulting in a wrong or bad diagnosis.

Your Health Advocate

psummerill@gmail.com — 2010-12-31T13:39:38-07:00

Most medical malpractice occurs when the professionals drop the ball. Wrongful death or severe injuries occur because of miscommunication, misunderstanding and just plain mistakes by the healthcare providers. One step that can help reduce the likelihood you might fall victim to an error is to try and make sure you have an advocate at your side during treatment, especially while in the hospital. A spouse, close friend or relative can advocate for you while you are too medicated to do so for yourself. Ask someone to question the healthcare providers prior to any treatment. In particular, either you or your advocate should seek information such as:

Why is the treatment/procedure/medication needed?
What else could be causing the problem/disease/reaction?
What other treatment is available?
Tell providers to wash/sanitize their hands when they enter the room to prevent spread of infection. They most likely just came from seeing another patient who may have been carrying a disease that you don’t need or want.
Before you leave, make sure you have very clear, specific written instructions in hand as well as what complications should trigger your return to the clinic/hospital and a phone number to call for any questions that might arise.

If you nevertheless become an unfortunate victim of malpractice or medical mistake, don’t make the mistake of thinking that it will get better with time. There are strict time limits for wrongful death and medical malpractice claims. Get in touch with a lawyer immediately, because now you need a different kind of advocate.

Medical Mistakes Surprisingly Common

psummerill@gmail.com — 2010-11-08T09:30:55-07:00

CNN recently ran a story on just how common medical mistakes, i.e. medical malpractice, actually occurs. Referencing a study by the Archives of Surgery, the article notes that in Colorado alone doctors operated on the wrong patient at least 25 times and on the wrong part of the body in another 107 cases. The study period occurred over a 6.5 year period. If our hospital and healthcare system get the wrong patient for surgery altogether, you can easily see how they might make other mistakes with catastrophic results and injury.

According to one physician interviewed by CNN:

Each hospital, whether they publicly admit it or not, and whether or not it's discoverable in a lawsuit, has an episode of wrong-site or wrong-patient surgery either every year or once every few years," says Makary, who wrote an editorial accompanying the study. "Almost every surgeon has seen one."

You can read the full article on CNN here. Our healthcare system, by and large, runs well for many people. However, for those who fall victim to a preventable medical error, the results can be disastrous for them or their families. Too often, tort reform focuses on limiting the ability to compensate those who get injured by medical malpractice without recognizing that this is why doctors and hospitals have insurance, to compensate the injured and their family. If tort reformers were serious about reducing costs, they would advocate healthcare reform to help prevent such mistakes in the first place, not try to through salt in the wounds of the victims by denying reasonable compensation.

Trial By Jury

psummerill@gmail.com — 2010-10-04T15:50:58-06:00

When the right of an individual to go to trial by a jury of his peers falls prey to ‘tort reform,’ all individuals sacrifice some small part of their liberty. The insurance lobby, the corporate lobby and even the State itself care only to prevent themselves from being held accountable by a jury.

“It astonishes me to find... [that so many] of our countrymen... should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases... This is a degeneracy in the principles of liberty... which I [would not have expected for at least] four centuries." --Thomas Jefferson to William Stephens Smith, 1788. (*) FE 5:3

Medical Negligence Costs $19.5 Billion Per Year

psummerill@gmail.com — 2010-09-13T09:02:06-06:00

It’s true: we live in a time of a medical malpractice crisis. Unfortunately, the spin on this by insurance companies is that “lawyers are to blame.”

But, according to the Society of Actuaries, the primary driving force in this cost is the fact that avoidable medical errors, a.k.a., medical mistakes or negligence, result in these costs. Further, most of the surveyed actuaries agreed that the solution is to prevent or reduce medical errors in the first place.

“Medical errors are a significant source of lost healthcare funds every year. For example, the study found that $1.1 billion was from lost productivity due to related short-term disability claims, and $1.4 billion was lost from increased death rates among individuals who experienced medical errors. According to a recent SOA survey, which identified ways to bend the national healthcare cost curve, 87 percent of actuaries believe that reducing medical errors is an effective way to control healthcare cost trends for the commercial population, and 88 percent believe this to be true for the Medicare population.”

Seems simple. If the negligence never occurs, there is no cost.

The Society of Actuaries also highlighted the five most common medical mistakes, or errors, that generated over 55% of the total costs. Pressure ulcers, postoperative infections, mechanical complications from devices, implants or grafts, postlaminectomy syndrome, and hemorrhages complicating a procedure round out the top five.

U.S. Government: Medical Errors Are Leading Cause of Death

psummerill@gmail.com — 2010-09-11T13:21:12-06:00

According to the U.S. Department of Health, Agency for Healthcare Research and Quality, “Medical errors are one of the Nation's leading causes of death and injury. A recent report by the Institute of Medicine estimates that as many as 44,000 to 98,000 people die in U.S. hospitals each year as the result of medical errors.” They offer 20 Tips to Help Prevent Medical Errors, many of which can be very useful in helping to head off a wayward medical provider about to commit malpractice. Medical errors are, by definition, an error and errors can and should be prevented. When a medical mistake, negligence or ‘error’ harms you, your family or friends, everyone pays the price. It costs a huge amount of money to correct errors through additional treatments. One case our firm worked on required over seven corrective surgeries following negligence by the doctor. Prevention is, of course, the best cure. Holding hospitals and healthcare providers accountable helps prevent ‘errors,’ and provides much needed relief to people harmed by such errors for lost wages, medical expenses, and home health accommodations in the most serious cases.

Hospital Negligence - Tips from FOX News

psummerill@gmail.com — 2010-06-30T13:43:32-06:00

Where will the ‘tort reformers’ (a.k.a. insurance companies looking to boost their bottom line) go if they lose the loyalty of their main media outlet? FOX News ran a story today entitled “Tips to Protect Yourself From Hospital Negligence.” The article addresses recent stories regarding infectious diseases being transferred to patients because the hospital and/or health care provider reused syringes, bottles of medication or dirty dental instruments. As a result, patients were infected with diseases such as hepatitis B and C as well as HIV. The article does offer a few good tips for ‘protecting’ yourself from infection at the hands of a negligent provider:

Demand that all health care personnel wash their hands in front of you before they render any physical service;
Demand that all health care personnel wear NEW gloves before drawing any blood;
Make sure your health care provider opens new needles from new packaging in your presence;
If any injectable medication is to be administered, it must come from a new bottle;
If you do not feel comfortable in your current setting, ask to speak to the infection control officer at your health facility. It is your right.

Still, one wonders, how can the patient be sure that medication comes from a ‘new bottle?’ The fact is that we must trust our health care professionals and, when the professional betrays that trust, hold them accountable. If the health care industry knows they’ll be held liable for negligence, then they’ll be certain to act in a way that doesn’t break such easy and common sense rules and needlessly exposes patients to danger. This is why ‘tort reform’ should never be embraced, it throws salt on the wound of the victim and eliminates the deterrent for the health care industry.

Nurses Strike Over Patient Safety Concerns

psummerill@gmail.com — 2010-06-11T08:30:05-06:00

We often see nurses caught between hospital administration, doctor orders and patient care. Doctors usually say ‘my way or the highway.’ nurses who question the wisdom of treatment can find themselves shunned and scorned or, worse, find their jobs at risk. More alarming, nurses find themselves ‘understaffed’ and unable to provide care for the patients. In short, Hospitals choose to maximize profit by keeping the bare minimum of nurses on duty. This not only exposes patients to potential injury and death, it also puts a great deal of stress on the care giver, the nurse. Nurses at heart want to help people. When the hospital puts them in a position that they can’t do their jobs properly, and they know they can’t be so many different places at one time, this causes severe heartache for the nurse who knows that patients are being harmed.

Minnesota nurses stood up, fought back and went on strike. Interestingly, even though many nurses usually sit on the opposite of the table from our firm, their argument is the same as ours, that hospitals are putting profit over patient safety. Tell the hospital to get off their wallet and give you the care you deserve.

Negligent Credentialing Recognized

psummerill@gmail.com — 2010-05-14T15:52:54-06:00

The Utah Supreme Court today formally recognized a cause of action for ‘negligent credentialing.’ This claim is based on the hospital’s failure to properly screen or review a surgeon’s competency, skills and abilities, or the hospital allowing a known incompetent surgeon to access their surgical facilities. Just as a trucking company must make sure that the driver holds the necessary skills to keep from endangering the driving public, so to must hospitals make sure that patients are not needlessly endangered by incompetent, unskilled or unprofessional surgeons. The worst case is when a surgeon has a drug or alcohol abuse problem, yet is allowed access to the surgical room. The hospital holds the keys to the surgery room. The hospital must make sure that those it allows in will not harm patients because they don’t have the skills, are operating outside their area of expertise, or are engaged in dangerous habits like drug abuse.

In Archuleta v. St. Mark’s Hospital, the hospital allowed a surgeon into the operating room who had previously been a defendant in many medical malpractice lawsuits. Even worse, St. Mark’s had previously been named as a co-defendant alongside the offending surgeon. As a result, a patient was exposed to the hand of an incompetent and unqualified surgeon who performed an open laparotomy to revise a gastric bypass. After that encounter, the patient suffered through over six corrective surgeries and more than three years with problems still arising to her stomach and bowels.

By making hospitals accountable for the people they let into their surgical facilities, the safety of patients will be improved.

The complete opinion can be read here.

Mount Ogden Golf Course - Dangerous Cart Paths

psummerill@gmail.com — 2010-04-24T10:20:55-06:00

Should a City be able to put “zero thought” into the design of golf cart paths on a course, fail to maintain the steep and dangerous golf cart path and fail to keep records and then blame the patron when his or her golf car skids and flips on a steep, improperly banked and leaf covered cart path? A jury considered this question during a four day jury trial in Ogden Second District Court. The jurors concluded that Ogden City was negligent because they put no thought into the design of the cart path and failed to maintain that cart path once built. The jury didn’t let the golf cart driver off completely. Applying Utah’s comparative fault law, the jury concluded that Ogden City was 70% at fault, while the driver was 30% at fault for the injuries.

The driver’s injuries included a severely comminuted (shattered) elbow and upper arm, which required two different surgical procedures to repair. The second surgery took over 7 hours to complete and resulted in the placement of over 18 different screws, plates and wires to reconstruct the arm. The driver also suffers from post traumatic stress as a result of the tip over and his arm now lacks 30 degrees of motion in all directions, making it difficult to even turn a door knob. Medical expenses in the case were over $83,000 with lost wages greater than $6,600.

Ogden City offered to settle the case for $6,600. After trial, the jury found damages to be $361,661.

We are proud to have represented the driver in this case and extend our sincere gratitude to the jury who carefully, thoughtfully and fully considered all the evidence in this case.

Nobody Is Immune

psummerill@gmail.com — 2010-02-09T14:36:56-07:00

It doesn’t matter how much political power you wield, you will not be immune to death or injury from medical malpractice. Reports are surfacing that Congressman Murtha, who died this week following laparoscopic gallbladder surgery, may have been the victim of preventable medical error.

“According to a source close to Mr. Murtha -- confirming a report in Politico -- doctors inadvertently cut Mr. Murtha's intestine during the laparoscopic surgery, causing an infection.” You can read the full story here.

A pierced bowel case can arise following surgery for gall bladder removal. However, the difficulty arises when the pierced bowel goes untreated, allowing fecal content to leak into the abdominal cavity. Such a situation can quickly develop into a full blown infection, sepsis and lead to a septic shock. We know, because we have represented the loved ones and survivors of such tragic and unnecessary medical malpractice. If you have recently undergone any kind of abdominal surgery, watch for these signs and symptoms which may indicate you have a pierced bowel or other adverse complications needing immediate medical attention.

Tenderness in the abdomen/stomach
Sharp abdominal/stomach pain
Lack of bowel sounds/no bowel movements
Fever
Vomiting

If you recently underwent an abdominal, laparoscopic, laparotomy, endoscopy or colonoscopy procedure you may be at heightened risk for a perforated bowel or pierced intestine. If you develop symptoms such as above, get immediate medical attention. If you feel that you or a loved one has suffered because of negligent medical care, give us a call and we can discuss your case.

Insurance Companies Get Richer, The Injured Get Screwed

psummerill@gmail.com — 2010-01-31T14:18:58-07:00

According to research, medical malpractice insurance companies just keep getting richer. Since the turn of the century, the money insurance companies took in increased by 120% while the amount they paid out dropped by 15%.

Even more surprising? States with a ‘cap’ or maximum amount recoverable for harm actually experienced an increase in the cost of premiums.

A copy of the complete report can be downloaded and read here.

So, while everyone claims that medical malpractice insurance is getting too expensive and medical malpractice lawsuits are the problem, the real problem appears to be aggressive lobbyists hired by insurance companies are seeking to further pad the coffers and profits of the insurance industry at the expensive of people. And yet, somehow, someway, the Utah legislature is considering LOWERING the damages cap in Utah. Of course, maybe they should look first to who they are serving.... The Utah Medical Insurance Association, one of the largest providers of malpractice insurance in Utah, carries nearly a quarter billion dollars in assets ($230,718,580 as of 2008). Greed, apparently, is good for the insurance companies.

Healthcare Transparency

psummerill@gmail.com — 2009-12-21T17:48:53-07:00

At the federal level, debate rages over healthcare reform. At the local level, still waters run deep. The legislature created an ‘interim’ committee at the close of last session to study health care transparency and improvements. Despite meeting in secret and also hiding its list of improvements from legislative oversight committees, word is leaking out that the interim folks are bent on making it more difficult to bring suit if you are injured by medical malpractice. Instead of transparency and creating a healthcare system that actually works for patient’s rights, the interim committee is bent on preserving insurance profit.

So, in the upcoming local legislative session, expect to hear a lot about ‘tort reform,’ very little about transparency and patient’s rights.

In the meantime, you can take some steps: tell your legislator you want a Patient’s Bill of Rights; tell your legislator you want a public system where you can go to find out background information on your doctors, healthcare providers, nurses and hospitals... after all, you can already look up your local restaurant to find out how many times the health department has cited them for violations, shouldn’t you have access to the same information for those who hold your lives in your hands? Which is more important, finding out if Taco Bell left chicken out on the counter, or knowing that surgeon who is about to cut you has been sued for malpractice more than once?

Salt Lake Office Now Open

psummerill@gmail.com — 2009-06-25T10:02:45-06:00

Our new office in Salt Lake City is now open and available, saving substantial time and cost to our clients. Often in wrongful death, medical malpractice, personal injury and auto accident cases, lawyers and attorneys employ mediators or arbitrators to help resolve the lawsuit. Mediators and arbitrators charge by the hour, and charge for their travel time. Almost all of the mediators and arbitrators along the Wasatch Front call Salt Lake City their home base. By having office and conference room facilities close the mediators and arbitrators, less fees get spent when using mediation or arbitration to resolve a medical malpractice, wrongful death or other personal injury lawsuit.

Our new office is located at 515 S. 700 E. Suite 2C, Salt Lake City, Utah 84102. However, our traditional office for mailing and contact purposes remains 1004 24th Street, Ogden, Utah 84401. Feel free to contact us for assistance on your case at (801) 927-2056.

Revoke That Arbitration Agreement

psummerill@gmail.com — 2009-05-24T14:25:40-06:00

If you have signed an arbitration agreement with your medical care providers, you might want to consider revoking that agreement. First, you can refuse to sign an arbitration agreement and also revoke any signed agreement and Utah law prevents the health care provider from withholding services. Remember, the healthcare providers exist to serve you, not the other way around. Signing an arbitration agreement takes away your right to go to court, to seek a jury of your peers. Also, signing an arbitration agreement substitutes our free and open court system for a pay-to-play system where you can wind up paying thousands of dollars to get your claim heard. If you become a victim of medical malpractice, such as a misdiagnosed cancer, a surgeon who cuts the wrong organ or a mother who suffers eclampsia before birth or post partum bleeding, you would then need to pay thousands and thousands of dollars just to get your case heard. Why substitute this private and secret system for the public courts, courts which allow the public to know what doctors are bad, rather than keep it a secret? Why substitute this private pay-to-play arbitration scheme for the public system paid for by your hard earned tax dollars? The reason: Insurance companies know that individuals cannot afford to foot the bill for private arbitration and won’t pursue their rights when they become victimized by incompetent and negligent health care providers.

Revoke that arbitration agreement and do it today. Send this form letter to your provider, and keep a copy for yourself and your file.
Form Letter Revoke Arbitration

New Salt Lake Office Opening Soon

psummerill@gmail.com — 2009-05-14T10:29:05-06:00

To better serve our clients, Hasenyager & Summerill will be opening a Salt Lake City, Utah office very soon. Our Salt Lake office will act as a satellite office and provide us a home court for depositions, mediations and arbitrations when dealing with your personal injury, medical malpractice, auto accident or civil rights case. Many of the arbitrators and mediators also charge travel time to conduct mediation/arbitration in Ogden. A Salt Lake City office saves our clients the cost associated with paying very high hourly rates just for the mediator/arbitrator travel time.

Protecting the Incompetent

psummerill@gmail.com — 2009-03-01T15:10:19-07:00

The medical malpractice insurance industry again seeks to shield the physician who negligently ignores safety in the emergency room (3 out of the last 4 years they tried and failed to push a similar bill). However, this time around SB0079 attacks patients and doctors alike. First, SB0079 raises the burden of proof for patients injured by negligent, unskilled or poorly trained emergency physicians by requiring a 'clear and convincing' standard. Second, SB0079 actually attacks physicians who dare to offer opinions critical of their peers. Physicians who testify against other physicians can be subjected to discipline for offering their honest opinion and criticism.

SB0079 shields the unskilled, poorly trained or plain negligent emergency room physician with a blanket immunity, allowing such physicians to remain unaccountable and in practice for all but the most horrific deaths or injuries in emergency rooms.

Raising the standard of proof for injuries from "preponderance of the evidence" to "clear and convincing" evidence is a solution looking for a problem. Already, Utah law takes into account the heated circumstances in an emergency room by requiring that physicians exercise reasonable care under those circumstances. Moreover, there have only been a few emergency room cases filed in the last few years. It makes no sense to shield these minority actors from legitimate claims by intimidating physicians who dare to offer critical testimony through potential disciplinary action.

If you find this intimidation tactic legislation offensive, contact your state legislator and voice your opinion. You can find your state representative by clicking here for help finding your district and representative.

Death By Expert Witness

psummerill@gmail.com — 2009-01-07T09:27:47-07:00

Under Utah law, a victim of medical malpractice must use an expert witness to establish the ‘standard of care’ and that the health care provider failed to meet that standard. The rule makes good sense, and prevents frivolous lawsuits, but can also operate to prevent some meritorious claims as well.

Expert Testimony Required.
Expert witnesses, i.e. a physician or other healthcare provider working in the same or similar field as the defendant, testify to establish the rules by which healthcare providers must operate. Just as drivers must follow the rules (e.g., don’t run stop signs, obey the speed limit) there are highly specialized rules in medicine. These rules form the standard of care. If a defendant healthcare provider broke a rule, then they ‘breached’ the standard of care. If that breach caused harm to the patient, then there is a case for medical malpractice. A very basic example would be that, when a patient presents with what appears to be a broken arm, physicians must get an x-ray.

Why Experts Are Required.
Typically, jurors, attorneys and judges do not have the medical expertise to determine what the standard of care is, whether it was breached and whether or not the breach caused harm. By requiring expert testimony to establish the rules for healthcare providers, frivolous lawsuits are prevented.

Why It Can Become a Problem.
Experts do not testify for free. Worse still, no healthcare provider in the State of Utah will offer testimony against another healthcare provider, a ‘white wall’ of silence and an unwritten code to hide the ugly truth of medical malpractice... Mistakes happen, people are catastrophically injured and killed, but the malpractice insurance (largely owned by the healthcare providers in Utah) wants to walk away for free.

So, the only option is to retain experts from out of state, who do not operate under the same fund of malpractice insurance and who do not need to worry about offending their local peers. Of course, this makes it even more expensive for an individual who is already injured and possibly out of work because of the injury.

Perhaps most troubling, because expert witnesses cost so much, only the most catastrophic cases can be brought. For example, if Joe is hurt by medical malpractice, but only suffers $15,000 in medical expenses and lost wages, it will be a very difficult economic decision to bring the malpractice claim because expert witness fees will eat up most of what he could recover. The cliche` goes: No sense throwing good money after bad.

Arbitration? What's That?

psummerill@gmail.com — 2008-11-15T11:28:06-07:00

Practically every hospital, doctor, clinic and healthcare provider in Utah asks patients to sign an ‘Arbitration Agreement.’ Often, these boilerplate forms get buried in with other red-tape paperwork. Do not ignore them and, more importantly, do not sign an arbitration agreement.

Sign Now, and Pay Later.
Your biggest fear during healthcare is not litigation, but “Am I going to be o.k.?” Naturally, we all believe we will survive and that our doctor will do a good job. The majority of the time, this is true and our healthcare providers do amazing work.

But, what if the doctor makes a mistake? They are, after all, human. Should you be giving up a right to court access for harm and injury because of medical malpractice? Should you give up that right even before the harm ever occurs? Arbitration is expensive, very expensive. Your tax dollars already provide a free and open court system. Arbitration requires that you pay the costs of not one, but two judges. These judges charge upwards of $300 per hour. Of course, if you suffer medical malpractice, you might be injured so badly that you lose your job. If you cannot pay for an arbitrator ($300/hr!) you cannot seek compensation from the healthcare provider who made an error. Can you see why the healthcare providers want you to sign these up front? It practically guarantees you lose your right to seek compensation by making it too expensive.

Of course, you can always choose arbitration at a later date if you feel it is the best way to resolve a claim for malpractice.

Your Right, Your Say.
You get to say whether or not you will agree to arbitration for medical malpractice, instead of bringing a lawsuit in our open courts. The purpose of providing an open court for people hurt by medical mistakes is to eliminate the possibility that injured people and/or their families would seek ‘rough justice’ against the healthcare provider on their own. Our tort system also guarantees that the offending healthcare provider gets known in a public forum and serves as a warning to other patients. These rights to go to a public court are yours and you get to say what happens to them. You do not need to sign an arbitration agreement under Utah law before receiving healthcare! If presented with an arbitration agreement, politely agree to take it with you and that you will read it and consider it. If you have already signed an arbitration agreement, you only have 10 days in which to revoke that agreement. Do so immediately by sending a written letter to your healthcare provider and keep a copy for yourself. Don’t let the healthcare industry take away your right to a free, public and open court system and replace it with a private, pay-to-play method which might cost so much, you cannot even use it when needed most.

Utah State Supreme Court - Dexter v. Bosko et. al.

psummerill@gmail.com — 2008-06-11T08:57:29-06:00

We recently obtained a favorable ruling from the Utah Supreme Court upholding the right of an inmate to sue for damages when guards failed to seat belt him prior to freeway travel. Kelvin Dexter was ejected from a Ford 15 passenger van when the van rolled over. Shackled at the wrists, waist and legs, Mr. Dexter could not fasten his own seat belt. The guard/driver refused to seat belt the inmates. Mr. Dexter was ejected when the guard/driver lost control of the vehicle while reaching for a soda or bag of chips at freeway speed. The van rolled several times, ejecting Mr. Dexter. The rollover severed Mr. Dexter's spinal cord, rendering him a quadriplegic. Eventually, Mr. Dexter developed complications as a result of his quadriplegia and died, leaving behind a wife and children. The Utah Supreme Court recognized that the Utah Constitution prohibits exposing inmates to "unreasonably harsh, strict, or severe treatment [or] unnecessarily exposed to an increased risk of serious harm." Because the failure to provide the fundamental and basic safety of a seat belt exposed Mr. Dexter to unreasonable and unnecessary risk of harm, the court held that the guards may be held liable for the harm caused by their refusal to seat belt Mr. Dexter. The full opinion can be read here: Dexter v. Bosko, et. al. (pdf).

Workers Beware

psummerill@gmail.com — 2008-02-16T12:48:08-07:00

The Utah Supreme Court recently upheld a trial court decision that protects and shields general contractors from liability. In Begaye v. Big-D Construction, the court held that even when a general contractor has the ability to prevent injury to subcontractors, they need not do so. In other words, watch your own back, because no one else is going to stop you from getting hurt, even if you can't see it coming.

Defending Trial Lawyers?

psummerill@gmail.com — 2007-07-31T21:17:09-06:00

It doesn't happen often, so when it does, time to draw attention. A recent article on CNNMoney.com champions the much hated trial lawyer. Salient points include: Attorneys represent the last resort of employees wrongfully terminated or abused in the work place; Attorneys represent individuals against the greed of corporations willing to put out shoddy tires, tainted pet food and toothpaste and defective difibrillators. The only thing that keeps the corporate world turning is the knowledge that, if the corporate world tries to screw the individual, trial lawyers will be there to hold them accountable. "Simply put, what makes transactions possible is the knowledge that if trust is abused, the abuser will pay a penalty." Long live the trial lawyer, long live corporate accountability.

'Heeling' Around May Require Healing

psummerill@gmail.com — 2007-06-07T14:34:37-06:00

Wheeled Shoes' Safety Questioned

“Trendy wheeled sneakers that let children zip down sidewalks and across playgrounds also could send them rolling into emergency rooms on a stretcher, say doctors who blame a rash of injuries on the international craze. It's called ‘heeling,’ named after Heelys, the most popular brand. They're sold in 70 countries and are so hot that their Carrollton, Texas-based maker, Heelys Inc., recently landed atop BusinessWeek's annual list of fastest-growing companies. But doctors from around the globe have reported treating broken wrists, arms and ankles, dislocated elbows and even cracked skulls in children injured while wearing roller shoes.”

Associated Press, Los Angeles Times 6/04/07

Bicycle Brake Failure

psummerill@gmail.com — 2007-04-12T18:13:18-06:00

In cooperation with the U.S. Consumer Product Safety Commission (CPSC), SRAM Corp., of Chicago, Ill., is voluntarily recalling about 5,400 units of SRAM Force Road Brake Caliper Sets. The brake caliper sets could break and detach from the bicycle’s fork or frame. This could cause the rider to lose control and crash.

Lawsuit Happy Society?

psummerill@gmail.com — 2007-04-10T19:51:20-06:00

According to Utah State Court Statistics personal injury lawsuits only make up 1% of the total cases filed in 2006