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Recent Blog Posts in August 2010

August 25, 2010

Medical Errors on the Rise?

Posted By Park Chenaur

It is always a good idea to stay alert and informed concerning the medical care we receive.  Restricted resources can make obtaining safe and competent health care even more of a challenge.   A recently published article appearing in the Minneapolis-St. Paul Tribune addressed a shocking new survey of acute care nurses.  Over 230,000 hospital employees were involved in the survey.  Nurses disclosed the fact that they believe that problems and medical errors are prevalent in the hospitals where they work.  Nearly half of the nurses surveyed reported feeling unhappy, disengaged and disempowered in their jobs.  These attitudes affected the standard of care patients receive and many reported that they could not recommend their hospital as a care center.  The medical errors the nurses reporting seeing with the most frequency were medication errors, pressure sores, allergic reactions, missed dressing changes.  The general consensus was that hospital administrators either are unaware or choose to ignore this growing problem.  Cutting financial corners in an effort to increase profits was cited as a main source of the turmoil brewing between employees of the hospitals and those that run it.

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August 25, 2010

Deposition Preparation

Posted By Park Chenaur

All clients experience anxiety in anticipation of being deposed by defense counsel.  Preparation for the deposition is very important in large part to minimize nerves.  Anxiety can be diminished by knowing what to expect and eliminating worry about even the simplest of things -- where to park, what to bring, how long it will take, what you should wear, whether you can request a restroom break, etc.  Be prepared that the initial questions will seem unnecessary, redundant and intrusive.  Stay calm and just answer to the best of your ability.

The first advice we always give to a client is to tell the truth.  If you are being deposed, you should always listen carefully to the question, pause, and think before you answer.  Be positive and precise, answering only the question answered.  Do not volunteer unrelated information and do not think out loud.  Do not exaggerate and do not go off on a tangent.  Remember to focus and pay attention.  Be courteous, even though you may not feel like it, and be polite.  Never use inappropriate language to answer a question.  Do not speculate, guess or assume.  If you do not know the answer, say that you do not know, or you do not remember.  Remember that depositions are always disconcerting for the one being examined.  The importance of preparation with your attorney cannot be overstated and will go a long way in calming your nerves.

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August 11, 2010

"I'd like you to perform some voluntary Field Sobriety Tests…"

Posted By Dan Gerl

"…I just want to make sure you're ok to drive."

That's what the officer tells you after he's asked you to step out of your car, but that's not all he wants. By this point, he's all but "decided" that you're impaired. While he may, in fact, decide after the Field Sobriety Tests (FSTs), that you're ok to drive, that's not why he wants you to do them. He's already building his case against you - which is that you've been driving drunk.

Most people don't know - or realize, until its too late - that you can refuse to perform FSTs in Washington State. When I meet with a potential client, one of the first things I ask is whether they performed the tests, whether the officer told them advised they were voluntary, and whether they believed they had the right to refuse. What they usually tell me is that they did perform them, the officer did say they were voluntary, and yet they did not really think they could refuse.

Police officers almost always tell the driver that the tests are voluntary. While this is not required by law, they must show that the driver consented to the tests, and the best policy is to use the word "voluntary" when asking the driver to consent to the tests. What they almost never tell the driver is that they have the right to refuse them, but that their refusal may be used against them. (This differs from the Implied Consent Warnings given prior to the breath test but that's another topic.)

If the driver refuses to do the FSTs it may be used against them later, if shown to be relevant to the charge. But it may not. It all depends on the circumstances. If it can be demonstrated that the officer by his conduct tried to "coerce" the driver into performing the tests, for instance, the court will likely suppress the refusal or even the test results themselves, if the person agreed performed them. This would be the case even if the officer did use the word "voluntary" - if the court finds coercion, then the word itself in that context is meaningless.

Also, if the driver (respectfully, of course) declines to answer any questions ("how much have you had to drink?") or perform any tests without first speaking to an attorney, his attorney may later argue that he did so on advice of counsel, and not because he believed it would provide evidence of his guilt. The prosecutor bears the burden to show that the driver's refusal is relevant; the odds are strong, however, that a judge will find that one's exercising their prerogative to refuse FSTs "on advice of counsel" is not relevant, and that the judge will exclude the refusal as evidence.

Drivers should always be polite and courteous to police officers. But that doesn't mean they should make the case against themselves easier. Respectfully exercising your privilege to refuse FSTs, particularly on advice of counsel, will very likely result in that evidence not being used against you. Even if a judge finds that your refusal is relevant (an attorney experienced with DUI issues is your best bet here), a refusal to perform FSTs is almost always better presented to a jury than potentially damaging test results (which are specifically designed to make you fail). In my experience as a prosecutor, I can tell you that juries often disregard the fact that the accused refused to perform FSTs, often commenting "if they had the right to refuse, and they exercise that right, why should that be held against them?" I have to admit that I thought hard about it at the time; I don't have to think about it now. Because I know it shouldn't.

A skilled and experienced DUI attorney will know how to best assess the facts of your particular situation and look for legal issues to ensure that you are provided the best defense. The DUI attorneys at Park Chenaur & Associates are skilled and experienced to do just that. Give us a call at 253-839-9440 to schedule a free consultation today.

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August 04, 2010

Are Alcohol-Detecting Steering Wheels the Answer?

Posted By Park Chenaur

In recent news:  

Schumer: Steering Wheels Could Stop Drunk Driving

Elmira, NY.  July 23 — In the future, cars may be able to detect — through a driver’s skin — whether he or she is drunk, and prevent the engine from starting.

U.S. Sen. Charles Schumer, D-N.Y., was in Elmira on Friday to promote a bill that would fund research of alcohol detection devices that could make such a scenario possible.   Called the ROADS SAFE Act of 2010, or Senate bill 3039, the act would direct the National Highway Transportation Safety Administration to spend $60 million over five years to figure out whether it’s possible to make an alcohol-detecting ignition lock that is both reliable and affordable.

"There’s a real chance for a tremendous breakthrough that doesn’t prosecute drunk driving after the act, but prevents it," Schumer said during a news conference with area officials at the Hazlett Building

Schumer said sensors that can detect blood alcohol content could be placed on steering wheels and driver’s seats. He said that technology is already in use in an alcohol-sensing bracelet, such as one worn by actress Lindsay Lohan.

"It detects through sweat that is always coming out of your pores, even when you can’t feel it, the legal limit of alcohol," Schumer said. "And when she was over it, it would go beep beep, and law enforcement would come get her."…  

A prominent DUI attorney from California , Lawrence Taylor (no, not that LT) has observed “[c]lever, except….uh, what about gloves?” Well, I know from experience when I’m on the treadmill at my gym, those heart rate sensors won’t work if I’m wearing workout gloves. So I imagine it’s wouldn’t be too difficult to design steering wheels to detect for whether or not the driver is actually gripping the wheel with her bare hands. Nor does it seem that one could get around this by having someone else hold the wheel while starting, as the wheel could certainly be designed to continuously detect while the vehicle is in operation.

The question remains, however – would this prevent a vehicle from starting when detecting any alcohol at all? Or would it be sensitive to levels (ie, .08)? Its not illegal to drink and drive, after all – but only when one’s ability to drive is impaired by alcohol (or drugs), or one’s blood alcohol level is at or above .08. Is this a “real chance for a tremendous breakthrough,” as Sen. Schumer suggests?  Or is it, as Mr. Taylor asserts, “ a perfect example of the idiocy of MADD’s holy crusade?”

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August 02, 2010

Independent Medical Exam (IME) and PIP in Washington State

Posted By Park Chenaur

In Washington, although PIP is not required, an insured must sign a waiver rejecting said coverage.  If your insurance company cannot produce your signed waiver, they must provide PIP coverage.  Under a PIP policy, your insurance company must pay for those medical bills that are reasonable, necessary and related to the accident.  They cannot deny coverage on a blanket statement saying the bills were not related, they must provide some form of proof.  Insurance companies typically call for an Independent Medical Exam or IME to gather evidence sufficient to deny further coverage.  If you choose not to attend, they can terminate PIP benefits.  You and your attorney should do a cost benefit analysis on whether or not you should submit to an IME.  If your IME results are unfavorable, the third party insurance carrier is entitled to a copy of the report if your case proceeds to litigation.  If you choose to not attend, however, you may need to pay your medical bills from your own pocket.  If you do decide to attend, you should have your attorney or another representative record the IME.  Recording helps with an accurate account of the examination as well as keeping the medical doctor honest.

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