Military Families Medical Malpractice Rights During Active Service

In 1950, the Supreme Court of the United States decided Feres v. United States, 340 U.S. 135, 138, wherein the Court determined that any active member of the military was barred from bringing a claim for injuries under the Federal Torts Claim Act (FTCA) whenever those claims were a result of the member's military service. [The language of the FTCA did not prohibit all claims arising from military service, rather only barred claims arising out of combatant activities of the military during war. See U.S.C § 2680(j).] Over the last 59 years many military men, women and families have been prevented from seeking any justice as it relates to non-combat related injuries.

This legislative session the Carmelo Rodriguez Military Medical Accountability Act (H.R. 1478) was sponsored by Rep. Maurice D. Hinchey (D-NY). H.R. 1478 is attempting to correct these injustices that military families have been facing for too long. H.R. 1478 will amend the FTCA to enable service men, women and families to bring a claim against the United States for personal injury or death of a military member resulting from medical, dental or related health care negligence, wrongful acts or omissions in care by individuals acting within the scope of their employment or at the direction of the United States. H.R. 1478 would still prohibit personal injury claims arising out of the combatant activities during armed conflict.

If passed, this new legislation will be retroactive to any claims arising on or after January 1, 1997. Military families are a step closer to having their rights protected as a result of negligent care.

For more information on the specifics of H.R. 1478 visit http://www.govtrack.us/congress/billtext.xpd?bill=h111-1478.

Shannon Keil

Motorcycle Insurance Coverage: Things You Need to Know to Protect Yourself on the Road

It's that time of year again when the motorcycles come out of storage and the enthusiasts hit the road after a long winter. As you get your motorcycle ready for the spring and summer, it's also important to check your insurance coverage to make sure you have adequate protection on your bike. Following is motorcycle insurance information along with suggestions to protect you on the open road:

1) Minnesota law does not recognize motorcycles as a "motor vehicle". Therefore, Minnesota only requires liability coverage for motorcycles.

2) While Minnesota law requires underinsured motorist (UIM) and uninsured motorist (UM) coverage for motor vehicles, these coverages are optional for motorcycle owners. UIM coverage pays you for your injuries when the at-fault driver has insurance coverage, but his/her coverage is not enough to fully compensate you for the damages you suffered. UM coverage pays you for your injuries when the at-fault driver doesn't have any insurance.

3) Minnesota does not allow a motorcycle owner access to his/her UIM/UM coverage on a motor vehicle if the owner is injured by an underinsured or uninsured motorist while riding his/her bike. The only UIM/UM coverage available to the motorcycle owner is that which he/she purchases for the motorcycle.

4) To protect yourself against the approximately 15% of uninsured drivers and the countless underinsured drivers, it is important to purchase the optional UIM/UM coverage for your motorcycle. Don't just purchase the minimum UIM/UM coverage of $25,000. Spend a few extra dollars and purchase enough coverage so if you are injured by an uninsured or underinsured motorist you have enough money to pay for a majority, if not all, of your damages. Talk with your insurance agent to determine what is the best coverage for you.

I recently represented a client who, while riding his motorcycle, was injured by a motor vehicle who didn't see him and pulled out in front of him. My client had to put his bike down and suffered significant injuries. My client's injuries far exceeded the at-fault vehicle's insurance coverage, however my client had not purchased the optional UIM/UM coverage for his motorcycle so he was only able to recover the amount of insurance carried on the motor vehicle that struck him.

Accidents happen when you least expect them and I would encourage you as you gear up for the riding season to double check the insurance coverage on your motorcycle and make sure you purchase adequate optional UIM/UM insurance to give you and your family peace of mind.

Shannon Keil

Two important bipartisan bills introduced to protect many from unfair mandatory arbitration to settle disputes

In the last few weeks, Congress has introduced two separate bills that are critical to protecting consumer, employee, franchisee and nursing home residents' rights.  On February 12, 2009 H.R. 1020: Arbitration Fairness Act of 2009 was introduced.  This proposed bill declares predispute arbitration agreements/clauses signed by employees, consumers or franchisees invalid and corporations cannot not force arbitration to settle disputes.  The bill states arbitration can only be discussed after the dispute arises and the parties have to voluntarily agreed to engage in arbitration proceedings.  The proposed bill also includes any dispute arising out of a statute intended to protect civil rights as being protected from mandatory predispute arbitration agreements.  Arbitration provisions in collective bargaining agreements are exempt from this Act.  H.R. 1020 is currently with the Judiciary Committee for further review before the bill will be brought forward for general debate.

 

On February 26, 2009 H.R. 1237: Fairness in Nursing Home Arbitration Act of 2009 was introduced in the House and on March 3, 2009 the Senate introduced S. 512: Fairness in Nursing Home Arbitration Act.  The overall goal of these two bills are consistent; to prevent the enforcement of predispute arbitration agreements signed by nursing home residents or a person acting on their behalf.  As in H.R. 1020, these bills require a dispute to arise before arbitration can be discussed as a viable option for resolution and will only be used after the parties voluntarily agree that arbitration is the best option for that particular situation.  Both of these bills are in their respective committees.

 

These bills are important to putting individuals on a level playing field with large corporations.  As a consumer, there have been many times we have signed a mandatory predispute arbitration agreement in order to make a purchase for a good or service.  If we refuse to sign the arbitration agreement then we do without that good or service.  I would venture a guess that most of us have not had to use the arbitration process imposed upon us.  However, when a dispute arises and arbitration is the only recourse, individuals learn the hard way that in many arbitration agreements the corporations control the process and have an unfair advantage over the individual.  These predispute arbitration agreements also cover any and all disputes that arise, even if someone is seriously injured s/he is stuck with a mandatory arbitration process controlled by big business and access to the civil justice system is denied.  These proposed bills will give individuals a choice about how to proceed with their dispute and will provide them access to the civil justice system when appropriate.

 

I will be watching these bills as they make their way through the respective committees and will provide updates on the blog as information becomes available.

 

Shannon Keil

 

 

Carbon Monoxide Risk Increases in Winter

According to the Centers for Disease Control and Prevention (CDC) every year approximately 20,000 Americans end up in the emergency room because of carbon monoxide (CO) poisoning.  CO is a colorless, odorless, tasteless gas that can cause severe injury or death.  The gas is generated by a variety of everyday products, including but not limited to, gas furnaces, water heaters, wood-burning stoves, fireplaces, cars, charcoal grills, portable generators and power washers.  The risk of CO poisoning increases in the winter when houses are tightly closed to keep out the cold.  When CO poisoning occurs, it's absorbed into the body's bloodstream through breathing the toxic gas into the lungs and the oxygen that's normally in the blood is replaced with CO.  Initial symptoms of low to moderate CO poisoning include headaches, fatigue, shortness of breath, nausea and dizziness.  The symptoms can be more severe if there is a high level of CO poisoning. 

 

To reduce your risk of CO poisoning it is important to ensure all of your appliances are in proper working condition and have your fuel-based appliances inspected annually by a qualified technician.  If you have a wood-burning fireplace be sure to have it swept on a regular basis to keep it properly ventilated.  Never use generators or camp stoves or any other portable fuel burning devices inside the home and never use a gas oven to heat your home.  Lastly, and most importantly purchase a CO detector to alert you to unsafe levels of this gas in your home.  Many of these detectors can be purchased for under $50 at several of your local retailers.

 

For additional information on CO, its potential risks and additional safety precautions please visit:

 

http://www.cdc.gov/CDCTV/QuietKiller/

 

http://www.epa.gov/iaq/co.html

 

If you or someone you care about has been seriously injured from CO poisoning caused by a third party, please do not hesitate to contact me to discuss your potential claim.

 

Shannon Keil

Sieben, Grose, Von Holtum & Carey

Telephone: 612-333-9712