CMS announces suspension of reporting requirements for settlements.

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The Centers for Medicare & Medicaid Services’ (CMS) implementation of the reporting requirements of the Medicare Secondary Payer Act (MSP) for liability settlements and the penalties associated with improper lien resolution has created turmoil and delay for many lawyers and their clients trying to reach a settlement in a negligence case.

Today, November 15, 2010, CMS is announcing a one year delay in implementation on the reporting requirements for claims involving liability insurance, retroactive to October 1, 2010 through October 1, 2011. This delay should facilitate settlements and allow for faster resolution of certain cases. In addition, it is hoped that during this period, CMS will suspend the issuance of MSP guidance documents, which have often been contradictory and a source of confusion.

Trucking cases are not the same as car accident cases!

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Huge tractor-trailers speed up and down our highways, frequently running at speeds far beyond the posted limit, and often tail-gating, weaving in and out and engaging in other dangerous maneuvers.  These commercial vehicles may weigh up to 80,000 pounds when loaded.  If not operated carefully and safely on our roadways, they present a clear and present danger to all of us.  Professional drivers are held to different standards than ordinary automobile drivers, and trucking companies are required to carefully screen and monitor their drivers.   Motor carriers are required to make sure that their drivers comply with the Federal Motor Carrier Safety Regulations (FMCSR), 49 CFR Sec. 390.11, and it is illegal for anyone to “aid, abet, encourage or require” a driver to violate the regulations (49 CFR 390.13).  A trucking company must perform an annual review on each driver to make sure the driver is still qualified and competent to drive a commercial vehicle after he or she is hired, 49 CFR Sec. 391.25.  And, before hiring a driver, the trucking company must make inquiries of a driver’s prior employers for a three year period preceding the driver’s application for employment and run a moving violation report (MVR) to determine the qualifications of the driver, 49 CFR Sec. 391.23.

Engaging counsel experienced in battling the trucking industry is essential to success in accident cases involving tractor trailers and other large commercial vehicles.

Don’t text while driving in Georgia! Pickup drivers-buckle up!

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O.C.G.A. Sec. 40-6-241.1, effective July 1, 2010, prohibits ALL drivers from texting with a wireless telecommunications device while operating a motor vehicle in Georgia.  The Georgia State Patrol has stopped issuing warnings and will now write $150 tickets for violations.  And, those under 18 cannot use a cellular telephone at all while driving.  Adults can use cell phones while driving, but the use must be “proper” and must not be distracting.  Headsets are now permitted by O.C.G.A. Sec. 40-6-250 provided they do not impair the driver’s ability to hear.

Georgia law also now requires adults in pickup trucks to wear seat belts.  Georgia has had a primary seat belt law since 1996 but pickup trucks were exempted until this year.

Texting Driver Found Grossly Negligent for Fatal Crash

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A Texas jury recently ordered a college student to pay over $21 million in damages after finding him guilty of gross negligent for texting while driving and causing a fatal crash.  This is one of the largest verdicts ever obtained in a texting-while-driving case. (Small v. Vestal, No. 08-01-18000-CV (Tex., Robertson Co. Dist. Ct. Mar. 17, 2010).)

In 2007, Jason Reed Vestal was driving his pickup truck down Highway 6 near Calvert, Texas, when he crossed the center-line and hit an oncoming car head-on. The crash killed the other driver, 21-year-old Megan Small, a student at Baylor University. It also injured Small’s friend Laura Gleffe, who was driving behind her and was run off the road by Vestal’s truck.

The Plaintiff’s lawyer became suspicious when he deposed Vestal, who insisted that he did not have his phone with him when he was driving.  His phone records were subpoenaed and it was discovered that Vestal had made 7 phone calls and sent 15 text messages during the 45 minutes he was on the road. Some of the messages were sent and received moments before the crash.

$792,500 Verdict for Motorcycle Rider Not Appealed

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No appeal was filed from the $792,500 jury verdict returned in Walker State Court last month for Clinton “Buck” Currie.  Buck was riding his motorcycle along Highway 341 just outside Chickamauga, GA two years ago, when a Buick Skylark suddenly turned left directly in front of him.  The car struck the motorcycle and Buck went flying through air.  Fortunately, he survived, but the impact with the car shattered his left ankle.  Buck did nothing wrong, but the injury dramatically affected his life.   Justice has now been served.

Georgia Supreme Court Strikes Down Medical Malpractice Caps

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On Monday, March 22, 2010, the Georgia Supreme Court unanimously ruled that the state legislature cannot limit the amount of money juries can award to victims of medical malpractice.  The ruling struck down a 2005 state law, championed by Republicans, that capped jury awards at $350,000 for the pain and suffering of malpractice victims.  The court held that the cap improperly removed a jury’s fundamental role to determine the damages in a civil case.  “The very existence of the caps, in any amount, is violative of the right to trial by jury,” and “‘clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function,”  Chief Justice Carol W. Hunstein wrote in the decision.  The ruling was praised by victims’ rights groups and plaintiffs’ lawyers and was condemned by doctors and Republican lawmakers.

The New York Times reports that thirty states, the Virgin Islands and Puerto Rico place caps on jury awards in malpractice cases, according to the National Conference of State Legislatures.  But since the late 1980s, such caps have been struck down by courts in New Hampshire, Oregon, Washington, Wisconsin and, most recently, last month in Illinois, according to the conference.  “Different states are reaching different conclusions,” said Thomas A. Eaton, a law professor at the University of Georgia who specializes in civil damage cases.

In Georgia, the court’s decision arose from the case of a 71-year-old woman, Betty Nestlehutt, who was permanently disfigured after face-lift surgery.  A jury awarded her and her husband $1.26 million in damages, including $900,000 for her pain and suffering. But under the cap, that would have been reduced to $115,000 for medical expenses and $350,000 for noneconomic damages. On Monday, the original award was reinstated.

Medical malpractice cases are among the most challenging and expensive cases undertaken by The Hamilton Firm and other trial lawyers.  Now the courtroom doors are open again to victims of medical malpractice in Georgia, as the arbitrary caps eliminated all but the most outrageous cases from consideration.  However, the fight is not over.  The 2005 legislation that imposed the caps also granted virtual immunity to emergency rooms and their doctors, making them liable only for committing gross negligence in the treatment of emergency room patients.  The Supreme Court upheld those provisions the preceding week.  Only legislative action can change this grossly unjust law.   

$792,500 Jury Verdict in Walker State Court

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On Thursday, March 11, 2010, a conscientious and hard working Walker County jury returned a verdict totaling $792,500 for a 39 year-old self-employed roofer/sheet metal fabricator injured in a bad wreck two years ago. On a Sunday afternoon two years ago, the plaintiff took his Harley motorcycle out for a ride over to his mother’s house. As he cruised along Highway 341 near Chickamauga, Georgia at a safe speed, a Buick Skylark, driven by an 88 year-old man, suddenly turned left directly in front of him. The impact shattered the plaintiff’s left ankle. The orthopedic trauma surgeon was able to use steel plates and screws to put the bimalleolar ankle fracture dislocation back together, but the plaintiff was left with a painful arthritic ankle with limited mobility.

We sought compensation in Walker State Court for the all harms and losses he sustained as a result of wreck. The jury provided $50,000 for medical expenses, $37,500 for lost earnings to date, $379,000 for future lost earnings, $20,000 for pain and suffering to date, plus $306,000 for future pain and suffering.

The biggest challenge we faced was overcoming sympathy for the defendant, who appeared in court in a wheelchair, after defense counsel made a big show of the fact that the defendant was ill.  Judge Peppers prohibited further appeals to sympathy and the jury took seriously our admonitions not to let “outside reasons” influence their determination of the proper amounts of money required to balance out the harms and losses the plaintiff suffered.

Currie v. Farmer, Case 08 CV 7097, Walker State Court, LaFayette, Georgia

This a No-Brainer, but Texting Ban while driving tractor trailers and other large commercial motor vehicles (CMVs) now officially appears in the Federal Register

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Yesterday, January, 27, 2010, the Federal Motor Carrier Safety Administration (FMCSA) issued a “Notice of regulatory guidance” concerning texting while driving a commercial motor vehicle (CMV). The guidance is applicable to all interstate drivers of commercial motor vehicles, such as large trucks and buses, subject to the Federal Motor Carrier Safety Regulations (FMCSRs). The regulatory guidance is effective immediately. 

Transportation Secretary, Ray LaHood, said this prohibition takes effect immediately.  LaHood made the following statement:  “We want the drivers of big rigs and buses and those who share the roads with them to be safe.  This is an important safety step and we will be taking more to eliminate the threat of distracted driving.”  The new ban carries fines of up to $2,750.  The National Safety Council estimates that 200,000 crashes of all types on U.S. roads are caused by drivers who are texting.  Nearly two dozen U.S. states have ban texting while driving for all motor vehicles and others are considering similar action.  Legislation has also been introduced in Congress to prohibit the practice.

Regulatory Guidance

The Notice provides regulatory guidance concerning the applicability of 49 CFR 390.17, “Additional equipment and accessories,” to drivers engaged in “texting” on an electronic device while driving a CMV in interstate commerce. Currently, 49 CFR 390.17 states:
“Nothing in this subchapter shall be construed to prohibit the use of additional equipment and accessories, not inconsistent with or prohibited by this subchapter, provided such equipment and accessories do not decrease the safety of operation of the commercial motor vehicles on which they are used.”

This provision, Section 390.17 has now been interpreted by the FMCSA as follows:

Question 1: Do the Federal Motor Carrier Safety Regulations prohibit “texting” while driving a commercial motor vehicle in interstate commerce?

Guidance: Yes. Although the current safety regulations do not include an explicit prohibition against texting while driving by truck and bus drivers, the general restriction against the use of additional equipment and accessories that decrease the safety of operation of commercial motor vehicles applies to the use of electronic devices for texting. Handheld or other wireless electronic devices that are brought into a CMV are considered “additional equipment and accessories” within the context of § 390.17. “Texting” is the review of, or preparation and transmission of, typed messages through any such device or the engagement in any form of electronic data retrieval or electronic data communication through any such device. Texting on electronic devices while driving decreases the safety of operation of the commercial vehicles on which the devices are used because the activity involves a combination of visual, cognitive and manual distraction from the driving task. Research has shown that during 6-second intervals immediately preceding safety-critical events (e.g., crashes, near crashes, lane departure), texting drivers took their eyes off the forward roadway an average of 4.6 seconds. Therefore, the use of electronic devices for texting by CMV operators while driving on public roads in interstate commerce decreases safety and is prohibited by 49 CFR 390.17.

Who does this apply to?

CMVs are defined in 49 CFR 390.5 as “any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle —
1. Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or
2. Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
3. Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
4. Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C.”
Section 390.17 is therefore applicable to drivers of commercial motor vehicles (CMV), as defined by §390.5, when the CMV is being used by a motor carrier operation subject to the FMCSRs.

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