Back pain? Need relief? Stay Active! Don’t Take a Pill, And Don’t Call Your Doctor.

“go run, be active, instead of taking a pill.” say Dr. Jim Weinstein, a back pain specialist at Dartmouth. Today’s New York Times interviewed Seattle’s own Chris Standaert, M.D., a leader in rehab medicine. Dr. Standaert said that new research shows that relieving back pain is not about taking medication, but rather teaching the patient how to set goals and work towards returning to an active lifestyle.
 
The newest research suggests that if you are having back pain (only, no radiating pain down your leg), you should try exercise, acupuncture, yoga or massage therapy BEFORE taking muscle relaxants or anti-inflammatories.
 
Let’s see how the medical industrial complex responds to this latest research.

Recalls Save Lives, Repairs Don’t

Three years ago, I wrote a post about the importance of anchoring large pieces of furniture such as TV’s and dressers after the Consumer Products Safety Commission (CSPC) recalled two brands of dressers responsible for the deaths of two young children. Then just a year later in 2014, two more young children were killed by toppling IKEA-made dressers, forcing the Swedish company to launch a safety-awareness program about the potential dangers of their product.
 
However, it is apparent that IKEA’s efforts did not go far enough. In February of this year another family was crippled by the death of their 22-month-old son when the same IKEA ‘Malm’ dresser tipped over onto him.
 
After the first two deaths in 2014, IKEA launched what it called a “repair program.” But rather than repairing the defect, this campaign merely offered a strap system which would reduce the likelihood of the dresser tipping over. It didn’t eliminate the underlying defect. And of the 27 million dressers sold, only 300,000 customers requested them, leading one to ask how effective was this awareness campaign? And why did the CPSC allow these unsafe dressers to remain on the market in homes with young children? These are questions that will nag the family of 22-month-old Theodore as they were completely unaware of the danger that their IKEA dresser posed to their son.
 
Many safety advocates are faulting the CPSC and IKEA for this “repair program”. While IKEA used the phrase “recall” in announcing the program, in fact, it was not. A recall would have created more cause for concern among customers, requiring the dresser be returned to IKEA. This “repair program” simply asks that customers order or pick up an anchoring kit they would have to install themselves from the wall to the dresser. Considering only .01% of customers who purchased Malm dressers ordered their repair kits, I’d consider the awareness program a failure. So would Theodore’s parents.
 
Given IKEA’s global success as a provider of affordable furniture, their actions set the standard for safety measures within their industry. In Sweden where the company is based, it meets their more stringent safety measures, requiring that all furniture must be anchored to the walls. It is incumbent upon the CPSC to create stricter regulations here in the US that ensures these preventable deaths don’t occur again.
 
If you have an IKEA Malm dresser, order a free wall-anchor kit today by visiting www.IKEA-USA.com/saferhomestogether, or call toll-free at 888-966-4532. And go to https://goo.gl/bfOHZX and tell the CSPC it should issue a recall of the Malm dressers.

Texting with a Driver Could Get You into Trouble – and injure someone

By now everyone knows it is illegal to read or write a text while driving a car in Washington. RCW 46.61.668. These “no texting while driving” laws focus on the driver’s conduct. 
 
And for good reason. As discussed in last month’s newsletter, texting while driving is a public health issue that can no longer be ignored. If you are involved in a car crash while texting, you are responsible for any injuries. Several cases have recently held that sending a text to someone you know is driving a car could make you liable for injuries the texting driver caused. 
 
These cases involved claims by people injured or killed by a driver who was texting while operating a car. Utilizing a concept similar to “aiding and abetting”, these court opinions have expanded the scope of liability to the person texting with the driver. Think of it as judicial recognition of the idea that “it takes two to tango”. In order to impose this liability however, the court pointed out that the non-driving texter “must know or have reason to know that the recipient would view the text while driving and thus be distracted”. 
 
The lesson learned: don’t text while you’re driving and, if you are texting with someone who is behind the wheel, hang up immediately.

Heads up! Here’s an App Every Parent Should Have

Being involved in youth sports provides countless benefits for children. It instills traits like work ethic and camaraderie that can carry them through into adulthood. And it can be plain old fun to run around with friends, not to mention the physical and emotional benefits kids experience as their skill and competence increase. But unfortunately, playing sports poses a growing risk to their health. The Center for Disease Control and Prevention (CDC) reports that 20% of high school athletes will sustain a sports concussion during the season. And these numbers are on the rise; in 2012 there were 3,800,000 concussions reported, nearly double the reported number in 2002. This growing epidemic in young athletes poses a great risk as undetected concussions can lead to long-term brain injury and can even prove to be fatal.

 

The CDC has led a community outreach campaign to educate and inform parents, students and coaches about the preventative measures that can greatly reduce the risk of concussions. Most recently, it released a free app that provides tools and information on prevention, recognition and response to concussions.

 

It is simple to use and filled with helpful information written in plain English so everyone can understand it. You can find out how to properly fit your child for a helmet for various sports and the do’s and don’ts of helmet wear and care. The app also has a succinct and informative section on brain injury basics, such as what is a concussion, what are the signs and symptoms, and what is the expected response and recovery.

 

Preventing concussions is easy but it requires parents, teachers, coaches and athletes to be educated and informed about how we can spot the symptoms and initiate fast and appropriate treatment. Download the CDC’s free app and help educate your family and friends.

WHY CAN’T MAKERS OF KIDS’ PJs FOLLOW THE LAW SO OUR KIDS ARE SAFE?

When we buy a product from a store, we assume those products are safe and won’t cause us or our families harm. Unfortunately, many manufacturers don’t prioritize the safety of their customers and produce items that may be hazardous. Recognizing this peril, the Consumer Product Safety Commission (CPSC) was created in 1972 as an impetus to protect the consumer.

 

This singular government agency became responsible for establishing regulations and enforcing laws enacted to regulate the safety of goods sold in the United States. Prior to the establishment of this agency, there was no one entity responsible for monitoring the safety of these products. Instead, there were four separate governmental agencies in charge of four separate types of goods. The result was in a weak and haphazard system, unable to focus on consumer safety. The CPSC was the solution.

 

The CPSC is responsible for creating regulations designed to protect the public from injury or death that can result from using more than 15,000 types of products sold in the U.S. Yet some manufacturers, distributors and retailers routinely ignore these regulations, particularly in the area of children’s clothing.

 

Flammability standards are particularly important. Initially promulgated in 1953 through The Flammable Fabrics Act, these regulations establish standards by which highly flammable clothing is manufactured. Yet despite having these regulations in place for sixty years, in 2013 more than 659,000 children’s pajamas were recalled because they failed to meet the CPSC’s flammability regulations. More than half a million had been sold at Target. In 2014, the number of recalls dropped to a mere 2,410 which could reflect an increase in supply chain awareness of the flammability regulations. Or, it may reflect the absence of a single large recall campaign such as Target’s. If so, that means there was actually an increase in the annual number of children’s pajamas recalled due to violating the flammability standards. However, in 2015 the number of recalls went up to 259,000 pajamas, highlighting manufacturers’ continual disregard of CPSC regulations.

 

This is an unacceptable number of dangerous consumer products on the market that could cause harm to children. The alarming number of violations by manufactures shows the repeated failure of manufacturers, distributors and retailers to follow the regulations established by the CPSC.

 

The CPSC functions as a regulator of the safety of products on the market and it is the responsibility of the manufacturer to abide by these safety regulations. Since they have continually shown through millions of product recalls that they are unable to do so, as the customer, it is vitally important to check the CPSC website to make sure you don’t own any of the hazardous products on its recall list. If so, take the pajamas back to the place of purchase and request a refund.

 

However, some companies are stepping up and making an effort to inform the public about some of their own product recalls. Seattle-based company, Zulily, has taken initiative to notify their customers of a recall of about 450 pajamas that do not meet federal flammability standards. Zulily is setting a great example of how a retailer can take responsibility and spread awareness about a hazardous product on the market.

Why Are There So Many Car Crashes in Seattle? Lots of Bad Drivers

Seattleites are renowned for many things; an obsession with coffee, overzealous sports fans, and a tolerance of constant grey skies. And now we can officially add another notch to our belt: we are horrible drivers. A new study from Allstate Insurance Company ranked Seattle drivers 184 out of 200 cities in its America’s Best Drivers Report for 2015. To add insult to injury, our longtime competitor to the south, Portland, managed to rank one spot higher than us.

 

If you’ve driven in Seattle this ranking may not surprise you. Driving here can be frustrating and is often a test of one’s patience. With 53,740 new residents settling in Seattle over the last five years, our streets have become even more difficult to navigate as cars, bicycles, street cars, buses, link light rail and pedestrians compete for the same space.

 

Named the fastest growing city in 2013, massive amounts of development have accompanied this intense growth. There seems to be new condominiums and sleek office towers being built in every corner of the city and all the construction projects make driving in the city increasingly challenging.

 

This immense and sudden growth is a new phenomenon for Seattleites, however poor driving preceded the economic boom of the last few years. The study from Allstate is confirming what some of us already knew: people in Seattle are terrible drivers. Add constant construction, more cars on the road and increased traffic, and Seattle is an increasingly dangerous place to drive.

 

Living in Seattle has many perks: great food, wonderful parks, (at times) successful sports teams and friendly, warm people. It’s no wonder the secret of the Emerald City has gotten out. But as Seattle experiences unprecedented growth, its residents should be aware of the dangers it poses to our now crowded streets. Be cautious, abide by the rules of the road and we can make Seattle not only an ideal place to live but also a safer place to drive.

Ever Hear of a Bike Helmet Hurting You?

In Seattle, Bellevue, Renton, Spokane, Tacoma, Vancouver, Kent, all of unincorporated King County, and many other jurisdictions, all bicyclists – not just children – must wear a helmet while riding. The law is based on evidence-based medicine, much of it performed by Fredrick Rivara, M.D., the founding director of the Harborview Injury and Research Center.

 

Yet there is a push among many bicycle advocates to eliminate the bike helmet law in Seattle. Their theory goes something like this: if people didn’t have to wear a helmet, more people would ride bikes, and if more people were riding bikes, a critical mass of cyclists will be reached and so the streets will be safer for all cyclists.

 

The problem with this logic is that it ignores reality. Here is a picture of my client Jordan laying on Lake City Way.

 

Photos of Scene 3

 

She was hit by the white pick-up truck that was pulling out of a parking lot. Jordan sustained a very serious leg fracture that was surgically repaired with screws and plates. After rehab, she returned to parenting, nursing school and life without any permanent limitations. Most importantly, her head was fine. But her helmet was toast. It does not take much imagination to think what could have happened to her had she not been wearing her helmet. So for your sake, and your family’s sake, always wear a helmet when you ride.

Focus on Focus Groups

When my clients’ cases appear on course for trial (as opposed to settlement) I may utilize a focus group, aka, a faux jury or mock jury. This allows me to present aspects of my client’s case, using real testimony and real exhibits, to a small group of randomly selected volunteers, who are paid a small stipend for the afternoon. Although time consuming, the process is worthwhile because:

 

  1. Creating a focus group necessitates that I organize my thoughts on the case;
  2. I learn what facts jurors may find helpful (or not); and,
  3. I see how different types of people respond to the evidence and issues.[1]

In the run-up to trial, attorneys spend significant time and energy discovering facts and formulating legal arguments. Sometimes, however, lawyers may not recognize a juror’s perspective and interpretation of a piece of evidence. Simply because we feel it is vital to the case does not mean that it will be to a juror. In other instances we fail to see the significance of a particular piece of evidence that a juror may want to hear or see in greater detail.

 

A focus group allows us to conduct a dress rehearsal of sorts. Presenting the evidence to a small group of six to nine people—who have no previous knowledge or experience with the facts or people involved—to sit, listen, and hash through the evidence provides us with alternative perspectives. We learn what other facts jurors may want to know, what makes a particular juror lean one way or another, and whether a particular exhibit is helpful or not.

 

As a result of a recent focus group, I learned I needed to emphasize certain facts regarding how my client was injured. Prior to hearing what some members of the group had to say, the evidence did not seem that significant or relevant. After listening to their discussion, it did.

 

Not every case justifies the time and expense a focus group entails, but it is a valuable resource to any attorney heading into the courtroom to try their client’s case.

Focus group table

[1] How To Do Your Own Focus Groups, A Guide for Trial Attorneys, by David Ball

SCOTUS Decides We All Need PIP Coverage

I have always been a big proponent of PIP (Personal Injury Protection).  It provides “no-fault” (automatic) benefits if you (or your passengers) are injured in a car crash while in your own car, in someone else’s car, while riding a bike or crossing the street as a pedestrian. It pays for medical expenses, a percentage of lost earnings as well as help around the house if you need it.  In Washington, PIP is usually sold in $10,000, $25,000 and $35,000 worth of coverage. For the amount and type of coverage you are getting, it’s a pretty good insurance product.

 

If you use your PIP insurance to pay accident related expenses and you make a claim against the person who was at fault, your PIP carrier it entitled to be reimbursed for the money it paid towards your medical bills.  At worst however, you may have to reimburse your insurer about 65% of what it paid out by application of the Mahler case.  And depending on the extent of your injuries and the amount of insurance coverage the other person had on their car, you may not have to reimburse your PIP insurer any money, according to the Thiringer case.  These two legal principles are important to my clients because it allows them to net more money when their claim is resolved. 

 

Some of my clients don’t carry PIP insurance so they must use their health insurance to pay their accident related medical expenses.  The health plan’s terms and conditions concerning annual deductibles, co-pays, annual limitations on physical therapy and pre-approval may hamper or limit the client’s ability to get the care my clients need.  These problems do not exist if you have PIP coverage.

 

Last April the Supreme Court of the United States (SCOTUS) issued a decision which further alters the reimbursement obligation of my clients. The name of the case is U.S. Airways v McCutcheon and it is yet another reason to get PIP insurance, especially if you work for an employer who provides health insurance subject to ERISA – the federal employee benefits protection laws.  

 

Whereas PIP insurers are forced to accept a discount on their reimbursement claims, McCutcheon allows the health plan to take back every penny back it paid towards your accident related medical care…even if that means you get nothing for your injuries, nothing for your time loss and nothing for your pain and disability. The Supreme Court decision has also authorized health plans to insert language requiring the injured employee to file suit to recover the money the plan paid even if the employee doesn’t want to make a claim or if is not feasible to do so in light of the health plan’s ability to “take” all or most of the proceeds of any recovery.  In short, the employee can become a collection agent for his or her health plan.  

 

Attached to this article is a redacted copy of a reimbursement agreement my client was forced to sign.  Note that:

 

a)    The injured employee must sign the agreement if s/he want her/his medical bills paid;

b)    The injured employee must bring suit against the responsible party and

c)    The employee assigns all rights to any settlement to the extent the plan paid for medical treatment.

 

Depending on the injuries and the amount of insurance coverage, the injured employee may receive nothing despite experiencing serious injury.

 

This case has created nightmares for some of my clients. The best way to avoid the negative consequences of McCutcheon is to make sure you have adequate PIP insurance.

You Think Halloween is Scary….

Bike commuting is increasingly popular in Seattle and so it is not uncommon to see parents biking with one or more of their kids on a bike seat or in a trailer attached to their bike. I have to confess, I get anxious when I share the road with these parent & child bikers. So I thought I would see what the childhood injury prevention specialist have to say on the subject of kids on parents’ bikes.
 
The American Academy of Pediatrics recommends NEVER putting a child under 12 months in a bike mounted seat or a trailer. They are simply too young. Take a bus, carshare or walk. If you are going to bike with your >12 mo. old, the AAP recommends bike-towed trailers rather than putting them in a bike-mounted seat. While trailers have visibility issues in heavily trafficked urban streets, research indicates they have a lower incidence of injuries than bike mounted seats. And as between front vs. rear mounted child seats, the rear mounted seat is safer. The national pediatric group also recommends riding on bike paths and (obviously) streets with fewer vehicles.
 
So it is not this:
Child in front seat mod
But even with the preferred trailer and rear-mounted seatconfiguration, what were Brad and Angela thinking? That is a lot of kids to manage, even for Hollywood’s leading man. And why are only 50% of their family wearing helmets.
 
Brad and Angela w tribe
 
Even with these recommendations, Phyllis Agran, MD, a pediatrician who has written many of AAP’s policies regarding childhood injury and trauma says that riding with your child on city streets “extremely risky“. The anxiety I experience when driving by a mom or dad with their child strapped to their bike apparently is not misplaced. I understand a parent’s desire to ride with their child. It supports many worthwhile values, from the macro (reducing one’s carbon footprint) to the micro (expending calories while getting to work and day care).
 
But too frequently in my work as an injury lawyer I have seen the heavy toll a bike accident involving children can have. Sharing the road is scary enough when it’s simply a bike and the adult rider. Add a child sitting over the rear wheel, or sitting four or five feet behind and three feet below you and it’s a whole other story. Biking parents – think about it. And if you are driving your car near any cyclist, particularly one carrying a child, give them room…lots of room.