Phoenix Personal Injury Lawyer - Wrongful Death

Mother is Charged With Homicide After Son Dies in Car

Jenny Albano — Wed, 31 Oct 2007 16:24:57 GMT

A mother of a 17 year-old month boy went in to work at Hooters Tuesday morning and when she returned to her car when her shift was over she realized she had forgotten her son was still in the vehicle. Unfortunately the toddler died because of the temperatures in the car.

Ashly Duchene was booked with a felony count of negligent homicide. She normally dropped her son off at daycare before work, but for some unknown reason she did not drop her son off Tuesday morning. Instead she left her son in the car from 10 a.m. to 5 p.m.

Efforts to revive the boy by witnesses, officers and firefighters were unsuccessful. Temperatures hit nearly 90 degrees Tuesday, but it would have been more than 100 degrees inside the car, said Sgt. Joel Tranter.

Officials think that the reason no one reported that the boy was left in the car was because their view was obstructed by tinted windows. Police requested an interview with Duchene Wednesday morning but were did not receive an immediate response.

Originally posted at InjuryBoard by Jenny Albano

Walgreens Pharmacy Held Accountable for Prescription Error

Staff Writer — Tue, 16 Oct 2007 18:33:58 GMT

A Coconino County jury awarded one of the largest wrongful death verdicts to the family of a high school coach who died after taking a lethal combination of medications which should never have been dispensed together. The jury found that Walgreens pharmacy should have warned the patient and his physician about the lethal and toxic effects that the pain medications Tramadol and Methadone have when taken together. Presumably, the jury believed that the pharmacy had the last known opportunity to prevent a lethal combination of drugs from getting into the hands of a patient who did not have any idea about the toxic effects of these drugs when administered together. The jury likely concluded that Walgreens pharmacy should have discovered the extreme lethal dangers when technicians first input both prescriptions into the pharmacy computer system. Unfortunately, I do not believe that this prescription error was an isolated occurrence in pharmacies throughout the nation. Pharmacy prescription errors are a leading cause of death and injury in our country. Additionally, medical errors in general affect one in ten patients worldwide.

In this Arizona case, the jury awarded six million dollars to the plaintiffs who alleged pharmacy malpractice arguing that the:

Walgreens pharmacist who filled his prescriptions should have warned Warren and his doctor that the drugs shouldn't be used together. Technicians should have received a computer warning of the interactions, they argued.
Walgreen countered that Warren was negligent and caused his own death or that his doctor was negligent in prescribing the medication.

When you receive a prescription, do you believe that the pharmacist will dispense the right medication and not some similarly sounding drug? Do you believe the pharmacist will explain the proper dosage, administration and usage to you? Do you believe the pharmacist will warn you about any drug interactions you may face? Do you believe the pharmacist will give you an opportunity to ask questions? I believe safe administration of medication should be a priority in all pharmacies. I also believe that the wrong medication should never leave a pharmacy if the pharmacist and staff prioritize patient safety when dispensing controlled substances. I guess the Coconino County jury agreed.

For more information on this subject, please refer to the section on Drugs, Medical Devices and Implants.

Originally posted at InjuryBoard by Staff Writer

Should Arizona Reconsider Statutory Immunity for Negligent Freeway Maintenance?

Staff Writer — Fri, 03 Aug 2007 10:13:36 GMT

A couple of days have passed since the tragic bridge collapse in Minneapolis which led to the deaths of at least five people. The cause of the bridge collapse on I-35W will not be known for quite some time. However, if the I-35W bridge collapsed due to ordinary wear and tear, such a tragedy may have been avoided had the Minnesota Department of Transportation placed a higher priority on bridge repair rather than continuously deferring needed maintenance. According to MSNBC, in 2005, the bridge had been rated by Federal Government inspectors as a step above "intolerable" needing major safety related reinforcements, upgrades or replacement. In 2005, the bridge had been considered

deemed to have met "minimum tolerable limits to be left in place as it is," according to the federal National Bridge Inventory database of inspection records.

Because it supposedly met minimum tolerable limits, it appears that safety and upgrade funds were not prioritized toward repair or upgrade work on this bridge. Two years later, the bridge collapsed. I guess that sometime after 2005, the bridge stopped meeting "minimum tolerable limits to be left in place as it its." At what point did this tragedy become preventable? What money could have been made available to do repair work on this bridge after Minnesota transportation officials received notice of safety dangers in 2005? If such a tragic event occurred in Arizona, would the State be held accountable for its refusal to make highway repairs right away? The answer to this question depends in large part on a review of statutes granting the state and other governmental entities immunity from suits challenging its policy and resource allocation decisions.

In Arizona, public entities may not be held responsible for negligence involving the exercise of fundamental government policy including:

1. A determination of whether to seek or whether to provide the resources necessary for any of the following:
(a) The purchase of equipment.
(b) The construction or maintenance of facilities.
(c) The hiring of personnel.
(d) The provision of governmental services.

Generally this means that if the Arizona Department of Transportation made a reasoned decision and considered yet rejected allocating resources to fix a bridge problem, the State may not necessarily be held accountable for its negligent decisions not to provide resources for construction or maintenance. However, it seems to me that if decisions not to allocate resources toward a particular safety project violate reasonable and sound engineering principles which later prove dangerously fatal, the State should not be immune from accountability for negligence. If the State contracted with a private company to make engineering resource-allocation decisions and the company acted negligently, it would accountable to the victims of its misplaced decisions. Why then should our State receive immunity for the same wrongdoing? I believe it may be time to re-examine the reasons for the legislative grant of immunity to this public entity. I wonder how quickly Department of Transportation officials would allocate monies to road and bridge repair knowing they would be held accountable for any unreasonable delays.

With current immunity protections in place, the Arizona Department of Transportation in its Traffic Engineering Policies, Guidelines and Procedures manual appears to prioritize safety projects by comparing the costs of safety countermeasures to the costs of fatalities, injuries and property damages. It suggests that each person's life should be valued at $3,000,000 and considers safety projects purely mathematically to minimize costs. Based on the agency policy manual, it will not commit to roadway safety countermeasures or modifications unless the costs of all fatalities, serious injuries and vehicle damages exceed the costs of safety improvements. Apparently the Arizona Department of Transportation is willing to accept death and injury on our state's roadways so long as the aggregate costs for deaths, injuries and vehicle property damages do not exceed the costs for bridge repair, installation of guard rails or other safety improvements. Does this mathematical justification for acceptable death and injury sound reasonable? Do you believe the State should place a value on life and only commit to safety projects when the safety project costs less than the total costs of lives for which it values at $3,000,000 per person? Does this economic model exclude social and non-economic costs of death, injury, property loss and disfigurement? What would happen in Arizona if a highway bridge collapsed. Applying the Arizona Department of Transportation economic formula to the bridge collapse tragedy which occurred in Minnesota, if the bridge repair costs exceeded $15,000,000, representing how the department values the loss of life of five people, policy-makers would accept such losses in Arizona. This is true even if decision-makers received notice of structural problems a few years prior.

Perhaps removing immunity protections for the decisions made by our state transportation department officials will ensure that freeway safety maintenance and upkeep projects occur quickly and efficiently and that the costs of safety improvements will not be compared to the cost of human life before considering particular hazard elimination projects.

What do you think? Should the Arizona Department of Transportation continue to receive immunity protection from various lawsuits against it? Are you satisfied with the safety decisions made and roadway projects undertaken by our Arizona Department of Transportation? Should the Department set as a goal the elimination of all hazards on our roadways or are some hazards, deaths and injuries simply acceptable? I'd like to hear your thoughts.

Originally posted at InjuryBoard by Staff Writer

World Health Organization Reports that Medical Errors Affect One in Ten Patients

Staff Writer — Wed, 02 May 2007 19:30:00 GMT

According to the World Health Organization, healthcare errors affect one out of every ten patients worldwide. Based on this alarming trend, the World Health Organization prepared patient safety checklists to help professional healthcare providers avoid simple medical mistakes. By following the "Nine Patient Safety Solutions," the organization hopes to see substantial medical error rate reductions. The the nine safety solutions relate to the following:

1. Look-alike, sound-alike medication names;
2. patient identification;
3. communication during patient hand-overs;
4. performance of correct procedure at correct body site;
5. control of concentrated electrolyte solutions;
6. assuring medication accuracy at transitions in care;
7. avoiding catheter and tubing misconnections;
8. single use of injection devices; and
9. improved hand hygiene to prevent health care-associated infection.

In the past, I have commented on medication errors as a source of potentially severe problems in our healthcare system. The World Health Organization recognized this problem worldwide, included in its recent report a discussion about medication errors, and recommended error reduction strategies as its top patient safety priority. The organization proposes creating a systems approach to medication administration. Requiring redundant error checks in the medication distribution system before a patient actually receives drug therapy can minimize the possibility of medication error and in the long run improves overall patient safety. By the way, the World Health Organization considered neither medical nor pharmacy malpractice reform as a patient safety improvement technique or strategy. I believe the organization realizes that malpractice reform does not improve patient safety and may in fact accomplish the opposite result. Kudos to the World Health Organization for focusing on real patient safety and error reduction strategies and staying away from political rhetoric.

Originally posted at InjuryBoard by Staff Writer

Phoenix Receives Failing Grade for Driver Safety

Staff Writer — Sat, 07 Apr 2007 09:30:00 GMT

Men's Health Magazine just published its rankings for the safest and most dangerous drivers in the country. It based its rankings on

the rate of fatal accidents, as well as the deaths caused specifically by speeding, both from the National Highway traffic Safety Administration (NHTSA). In addition, we pulled city statistics on accident frequency from Allstate Insurance. And then we used statewide numbers on speeding from the Governors Highway Safety Association, plus NHTSA state data on seatbelt use.

How did we rank, you might ask? Unfortunately, Phoenix did not rank well.

According to Men's Health Magazine, Phoenix, Arizona drivers receive a failing grade ranking twelfth for worst drivers in the country. Not such a good grade for the largest City in Arizona. What in Phoenix encourages people to drive so badly? One reason may relate to freeway capacity and daily traffic volume. The Department of Transportation funded and built several state freeways based upon capacity studies which we now know grossly underestimated actual traffic volume in our State. Therefore, freeways were designed and built with substantially less traffic in mind and with fewer safety features than necessary to accommodate actual traffic volume. Clearly, as people move to Arizona and traffic volume increases on our city roadways, the number of collisions increase as well. As traffic volumes rise, designers must add appropriate roadway safety features into roadway design and construction. Appropriate safety design features such as large roadside clear zones, median barrier protection, and crash cushions depend on acurate traffic volume estimates, design speeds and operating speeds. The failure to upgrade and maintain roadway safety features, together with larger than expected increasing traffic volume could certainly explain why Phoenix has higher per capita accident rates compared to other cities in the country. While these are just my thoughts about one explanation why Phoenix received a failing grade, I'd like to hear your thoughts as well.

Originally posted at InjuryBoard by Staff Writer

Cellphone Use and Driving

Staff Writer — Fri, 16 Feb 2007 22:01:10 GMT

An article in today's Arizona Republic described the dangers of distractions and driving. According to the Republic, distracted drivers heighten risks of auto accidents:

Driver distractions, ranging from cellphones to eating behind the wheel, are blamed for as many as half the 139,000 collisions that occurred in Arizona during 2005, killing more than 1,100 people and injuring 70,000 others, said DPS Officer Tim Mason, a department spokesman.

The article suggests that distracted drivers increase the odds of a motor vehicle collision by fifty percent.

One form of distraction concerns cellphone use. A recent study published in the Summer, 2006 publication Human Factors: The Journal of the Human Factors and Ergonomics Society compared the distraction of cellphone use to drinking and driving. Interestingly, the study found that based on risks of motor vehicle accidents, cellphone use in vehicles can be just as dangerous as drinking and driving.

In Arizona based upon the substantial and known risks of harm associated with drinking and driving, a person who makes a conscious decision to drink and drive and as a result causes a collision may subject themselves to an award of punitive damages. If the same substantial and known risks of harm exist for a person who talks on a cellphone and causes a crash, should that person also be subject to an award of punitive damages? What do you think?

Originally posted at InjuryBoard by Staff Writer

New Proposal to Limit Public Access to Vehicle Safety Data Bad for Consumers

Staff Writer — Fri, 12 Jan 2007 12:15:42 GMT

Shopping for a new car and want to compare details about past vehicle warranty-related problems before making your final buying decision? Do you want to look at available accident-related safety reports and determine which make and model of vehicle performed safest? Well according to a recent article in the San Fransisco Chronicle, a new proposal from the National Highway Safety Administration will prevent you from accessing safety-related information, consumer complaints, warranty payments and automobile dealer field reports all of which will affect automobile safety.

According to the Chronicle article:

In 2000, Congress passed the Transportation, Recall Enhancement, Accountability and Documentation Act to address regulators' failure to spot defects in Firestone tires that were linked to numerous deaths.
Under the act, vehicle and parts manufacturers are required to report all consumer complaints, warranty payments and dealers' field reports in the event of an injury or death involving a potentially defective product.

A recent government proposal would limit acess to this information:

While the data will still go to government officials, rule changes sought by the auto industry and backed by the Bush administration would deem information like consumer complaints and warranty payments "trade secrets" and thus prevent the public from gaining access.

As a result of an era of secrecy, we have in the past seen defective and dangerous tires with a propensity for tread separation at high speeds. We have seen poorly designed SUV's with rollover propsensities. We have seen cars with a propensity for explosion based upon the location of the gas tanks. Problem product disclosures would have provided an early warning system to vehicle manufacturers to fix, repair and prevent such defective products quickly and safely. Unfortunately, as the Bush administration now proposes, automobile manufacturers will be forced to disclose information about vehicle product defects and other problems to the government; however, nobody will have access to this information. A useful early warning system originally envisioned by Congress will simply not exist under this proposal. In my opinion, such draconian efforts to limit access to information flies in the face of the rights of consumers, discourages product safety and does nothing further to advance the interests of product safety. The American Association of Justice urged the National Highway Safety Administration to withdraw any rules suggesting that consumer complaints are "trade secrets" and therefore exempt from public access. According to the American Association of Justice,

AAJ noted that the proposed rule changes violate both the Freedom of Information Act and its subsequent common law interpretations. Specifically, the new rules decrease public access to records (including documents that previously had been readily available to the public) and foster administrative secrecy for the benefit of the auto industry.

The Association stated further:

"These unwarranted rule changes by the federal agency charged with ensuring the public's safety allow the automobile industry to hide information about the safety of their vehicles and ultimately evade responsibility for negligence," said Jon Haber, CEO of the American Association for Justice.

I could not agree more with this criticism of limitations on access to public records particularly when access could enhance automobile safety. What do you think?

Originally posted at InjuryBoard by Staff Writer

Families Sue Bar in Wrong-Way Crash Case

Andrew Defusco — Fri, 17 Feb 2006 09:11:53 GMT

In early February, the families of three teenagers sued a bar in a Texas court, claiming that the bar should be held responsible for causing the motor vehicle accident and the teens' deaths. The accident was caused by a drunk driver who drove the wrong way and crashed into the teens' vehicle.

In Arizona, bars can be held responsible for causing injuries and deaths when they overserve alcohol to customers, when the customer was either "obviously intoxicated" or when the bar knew or should have known that the patron was intoxicated. Contrary to popular belief, it is unlawful for a bar to serve intoxicated patrons, when it knows or should know that the patron is intoxicated and likely to drive away from the bar. This type of litigation is known as "dram shop" litigation, and was formally recognized by the Arizona Supreme Court in 1983. Does this mean that the bar is entirely liable when a drunk driver, who was served at the bar, later causes an accident with injuries?

The short answer is no. In Arizona, people and businesses are responsible only for their proportion of fault for causing an accident or injury. Typically, even when a jury finds the bar at fault, the drunk driver will also bear fault for the accident and injuries. Bars are most often at fault when the following factors are present:

1. The drunk driver was served at the bar while obviously or visibly intoxicated;
2. The drunk driver consumed a large number of alcoholic beverages at the bar;
3. Witnesses report that the drunk driver was acting in an intoxicated manner while being served at the bar;
4. The bar failed to offer a cab or "safe ride" to the drunk driver;
5. The bar failed to call the police to prevent the drunk driver from harming other motorists after leaving the bar;
6. The accident occurs fairly close in time to when the drunk patron leaves the bar;
7. The drunk driver has a high blood alcohol concentration.

Occasionally, bars serve underage patrons, who get drunk and then cause a motor vehicle accident. As you can imagine, this raises additional liaiblity concerns for the bar AND its insurance company.

When the State of Arizona licenses a bar to serve alcohol, the bar is given a license to do so in a responsible manner. As Tucson, Arizona dram shop industry standard of care expert Randy Durnal has stated, "If bars are going to profit from the service of alcoholic beverages to members of the public, they must serve alcohol responsibly, and accept the liability for the tragic consequences that may ensue when they fail to do so."

Originally posted at InjuryBoard by Andrew Defusco

Arizona Punitive Damages Legislation

Staff Writer — Wed, 15 Feb 2006 10:36:45 GMT

Each year various members of the Arizona legislature introduce bills concerning all aspects of "tort reform." This year is no different. I recently learned that Arizona State Representative Jennifer Burns introduced a bill to prevent Plaintiffs from recovering punitive damges but not to outlaw puntive damages awards in their entirety. Rather than outlawing punitive damages, Representative Burns' legislation would direct that all punitive damages awarded by a jury be placed in a state fund for the benefit of health education services.

Throughout the years I have observed our Arizona legislature attempt to cut back on the rights of victims to seek punitive damages arising out of intentional conduct by a wrongdoer. This is the first time I can recall the legislature seeking to enrich the State of Arizona anytime a jury awards punitive damages. While the concept of funding health related programs may be a good one, I am afraid that in practice, requiring that punitive damage awards be deposited with the State for the benefit of health programs presents a host of unintended consequences. For example, how would these changes affect the ability of parties to settle their lawsuit knowing that if a jury awards punitive damages, Plaintiffs will never see any of these monies? Does this mean that a Defendant would be discouraged from participating in meaningful settlement negotiations and would offer artificially low settlements? Why should the State mandate the use for punitive damages awards? What if Plaintiffs who have suffered harm have a desire to see the punitive damages award used for other socially responsible causes other than health related programs? Also, will the State have new incentives to avoid licensing and oversight responsibilities in times of fiscal shortfalls knowing that budget shortfalls in certain health-related program areas could be made up by punitive damage assessments?

Is this bill another attempt at unwarranted government interference in our jury system or is it a good start at fixing a problem with allegedly outrageous jury awards? I for one think that government should stay out of this decision making process and if anybody should benefit from a punitive damages award, it should be the victim of outrageous conduct justifying such an award and not our government. Lastly, punitive damages awards are usually lower than an initial jury award and usually take a long time to wind their way through our judicial process before a Plaintiff can recover anything. In reality, the need for punitive damages reform in my opinion is exaggerated. What do you think? Click here to see the House Bill 2862, the proposed punitive damages reform bill.

Originally posted at InjuryBoard by Staff Writer

Seminars on Injury Litigation in Hawaii

Staff Writer — Thu, 09 Feb 2006 17:28:57 GMT

This year I will have the difficult task of having to attend a litigation-related conference in Honolulu, Hawaii of all places. We booked our tickets and I will soon participate in convention seminars at the Winter Convention of the Association of Trial Lawyers of America. I hope the convention seminars will improve our firm's ability to represent our clients with care and passion. One of the upcoming topics at this convention which caught my eye is entitled "The Courthouse is Key to Fairness in the Workplace and to Safer Drugs, Nursing Homes, and Medical Care." Do you agree?

I have ranted and raved about access to the courthouse and limited government interference regularly on this web site. My question to you is whether you agree or disagree that the courthouse is the last forum to ensure access to safe products and quality medications. Before the convention, if I see other seminar topics of interest, I will share my thoughts. Also, at the convention, as I participate in various seminars and learn about new or interesting ideas or have other rants, raves or rambling thoughts, you can expect to hear from me. Until then, let me know whether you believe a connection exists between access to courts and safer products and services. I look forward to hearing from you.

Originally posted at InjuryBoard by Staff Writer