Articles Posted in Wrongful Death

I read this tragic story this morning out of Alabama. A young boy was shopping with his mother at a Publix supermarket and asked for a cookie in the bakery section. The boy suffers from a very serious allergy to tree nuts of all kinds. As many as two percent of all children today suffer from this allergy which can range in severity from mere annoyance to fatal. Unfortunately, for this young man, he had a fatal allergy. The family has brought a wrongful death lawsuit against the supermarket.

The cookies in the market were not marked as containing nuts of any kind. Aware of the seriousness of her sons allergy, the victims mother specifically asked the girl at the counter if there were any nuts in the cookie. She was told “no.” The boys mother even tried the cookie herself first but did not notice any nuts in the ingredients. Horribly, after just 2-3 bites the boy knew something was wrong because his mouth was on fire. Despite the use of benadryl and an epi-pen, the boy still passed away on route to the hospital.

This story is all the more tragic because it was absolutely unnecessary. With great credit to the boys parents they claim that this lawsuit is not about money but about awareness. Even though the country is pretty aware of the existence of peanut allergies and many schools now forbid nuts of any kind, there remains far too much ignorance on the subject. It is, as it was here, literally a matter of life and death. Supplying an allergic boy with a cookie containing (even trace amounts of) nuts is the equivalent of handing any one else a cookie containing cyanide. Hopefully this lawsuit can have their desired effect of informing the public just how important it is to be aware of the presence of nut allergens.

The National Transportation Safety Board released the findings from a study which revealed, the not surprising at all fact that, wrong way drivers are extremely dangerous and cause hundreds of auto accident fatalities each year across the country. The study also finds that the majority of wrong way drivers are intoxicated and operating their vehicle at two to three times the legal limit for alcohol.

Head on collision
I have written previous posts highlighting the danger of head-on collisions. Head-on accidents are among the most dangerous and life-threatening auto accidents that can occur because the speed and force of both vehicles impact directly into one another. Wrong-way drivers, whether on a side street, a main street, or in extreme cases, the highway, create a very high likelihood of a head-on collision.

When an operator is coming down the road in the wrong direction it can be very difficult to avoid collision for a number of reasons. For one, as drivers, we are unaccustomed to be on the lookout for wrong-way drivers. While we are trained to always keep our eye on the road, a driver coming the wrong way down the highway or down a one way is not something we are likely to look for. Second, even if we are aware of the wrong way driver it may be impossible to avoid collision. Perhaps there is no room to get out of the way (as in a tight one-way road) or the driver is coming to fast for you to take evasive action (as on the highway).

A recent Supreme Court decision from the State of Maine brings to light some interesting considerations for accidents involving commercial work trucks and insurance coverage. The case, State Farm Mutual Auto Insurance v. Estate of Carey, stems from a tragic auto accident that claimed the life of James Carey. Mr. Carey was struck and killed by Roger Linton who was an independent contractor and former employee of Jennings Masonry. Linton was driving a large commercial truck owned and insured by Jennings but was not working at the time of the accident. State Farm insured the truck involved in the loss.

Linton was not currently an employee of Jennings, but was in the past. He also frequently drove Jennings vehicles with permission. On the date of this accident, he was again driving in a Jennings truck but did not return the vehicle when he completed his work. Instead, Linton took the truck to several friends houses and a tavern. It was during this “excursion” that the fatal auto accident occurred involving Mr. Carey. Linton was legally drunk at the time of the accident and arrested.

Quickly, State Farm petitioned the Court for a declaratory judgment stating that they had no obligation to insure or defend Linton. Their position was that he did not have “permission” to use the vehicle at the time of the accident and was not using it for work purposes, and therefore, he was not legally operating the vehicle at the time of the collision. If he did not have the permission of the owner to operate the vehicle at the time of the accident, State Farm, would not be required to cover the loss. (As a side note, if that sounds unfair because it could leave the owner of Jennings Masonry holding the bag – you are correct. If an insurance company can avoid paying they will regardless of the harm it might present to their insured).

The story that Progressive Insurance defended the person “responsible” (I put this in quotes and will explain the legality further on) for the death of a policyholder is completely taking over Twitter and the news circuits following a series of blog posts, tweets, and other correspondence between Progressive Insurance and the family of the deceased, Kaitlynn Fisher, nicknamed Katie.

I have tried to learn as much about this story as possible but there are some conflicting reports. I apologize to those intimately involved with this case, in advance, for any errors or misunderstandings.

The Facts of the Case

Lifespan, which manages several RI hospitals including: Rhode Island Hospital, Miriam Hospital, Newport Hospital and Hasbro Children’s Hospital, has today announced that as many as 2,000 patients over the past year may have received an erroneous prescription at one of these Lifespan Hospitals. Lifespan is blaming this medical malpractice error on a computer, or software, malfunction. Their statement does not indicate whether anyone was harmed by this malpractice. It is understood that most affected patients have been contacted regarding this error or are in the process of being contacted.

Giving a patient the wrong medication, the wrong dose of a medication or unnecessary medications are all examples of medical malpractice. While the full extent of these errors by Lifespan are unknown, you may be entitled to collect personal injury damages if you were injured or harmed because of receiving incorrect medication. At the same time, not all victims of this mistake are entitled to compensation. If you discovered the error before ingesting the medication or if you ingested the medication but were not harmed, you may not be entitled to compensation. However, if the wrong medication caused you personal injury, even temporarily, you may be entitled to damages for pain and suffering, medical bills (if you were required to seek treatment) and lost wages if you were unable to work.

It is unclear if anyone was seriously injured by Lifespan’s mistake but given the high risk of pharmaceutical medication, it is likely that someone was seriously injured. Patients may have been given medications to which they are allergic or may have been given medications that have harmful or potentially fatal interactions with other medications. Overdoses from receipt of the wrong amount of medication are also possible. Anyone seriously injured because they were prescribed the wrong medication should contact an experienced medical malpractice attorney right away.

Following the recent study of Rhode Island’s worst intersections, comes another study identifying the most dangerous metropolitan areas for pedestrians. The group, Transportation for America, determined Providence to be the fourth most dangerous metro area in the Northeast. According to their findings, 117 people were killed while walking in Rhode Island from 2000 to 2009. The study also accounted for population and the proportion of the population that walks to work.

Although, scoring poorly in the Northeast, Providence was relatively low compared to other areas across the Country. Rhode Island finished 31st of the 50 States with Florida apparently the deadliest State in the Country for pedestrians.

The overwhelming majority of pedestrian accidents and injuries arise from car accidents. Clearly, even the largest and strongest of us is no match for a car or truck travelling between 30-50 mph. Pedestrian accidents are always serious and require an experienced attorney ready to fight and go the distance, if necessary.

With New Year’s resolutions coming around the corner, a new study suggests that there may be another reason for the overweight to shed excess pounds. A recent study suggests that obese men and women are far more likely to die in serious auto accidents than are men and women of normal weight.

According to the study:

  • A body mass index in the class II obesity range of 35 to less than 40 kg/m2 boosted risk of fatality in a severe crash by 21.2% compared with normal weight;

…and so it should. A Suffolk county jury has awarded the family of Marie Evans an astonishing $71 million dollars in her wrongful death lawsuit against Lorillard tobacco, the makers of Newport cigarettes.

There have been many large awards against the tobacco companies in the past and by now the story is known to all. Tobacco companies knew for decades that their product was deadly but continued to hide and ignore evidence while promoting their product as safe. Years, and thousands of deaths later, the tobacco industry is the subject of thousands of lawsuits. But this case added another element that is quite interesting.

The estate of Marie Evans argued that Lorillard tobacco promoted and marketed Newport cigarettes to poor minority children. Ms. Evans was only 9 years old when first given a free pack of Newports while living in the Orchard Park housing projects as a child. Ms. Evans was hooked and smoked Newports until her death at the young age of 54. Attacking the cigarette companies for their predatory marketing practices of handing out free samples to poor and impressionable youth is a new tactic.

A bill introduced by Representatives Caprio, Petrarca, Silva, Edwards, and Lally has now become law. Rhode Island General Law, Chapter 10-7 “Death by Wrongful Act” now includes the following:

R.I.G.L. 10-7-7.1. Punitive Damages. In an action commenced under section 10-7-5, recovery may be had for punitive damages if such damages would have been recoverable had the decedent survived.

Punitive damages are damages in addition to compensatory damages (medical bills, lost wages, pain and suffering, etc) that are intended to deter the defendant from acting in a certain way. Punitive damages are typically awarded in cases where the defendant’s negligence was egregious or his behavior reckless. The most well-known examples have come from lawsuits against the tobacco industry.

I came across this story on CNN.com and found it fascinating. A widow is suing a debt collector for the wrongful death of her husband. The lawsuit alleges that the frequent harassing and threatening phone calls caused so much stress to her husband that it eventually led to his fatal heart attack.

I was unable to embed the video in this post, but it is truly worth watching. The widow saved several of the messages from the debt collector and the tactics used are disgusting and illegal. I hope that States follow through and prosecute debt collectors who use these “thuggish” methods of collection.

That said, I suspect this will be a nearly impossible case to win. The story reports that the deceased was already collecting disability for a prior heart attack. Therefore, it will be very difficult to causally relate a second fatal heart attack to the harassing phone calls. The defense will likely be successful in arguing that the second heart attack was inevitable.

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