75th Annual Sturgis Motorcycle Rally – Part 1

We at Johnson Eiesland would like to welcome all riders and visitors to the Black Hills for the 75th Annual 2015 Sturgis Motorcycle Rally.  This is Part 1 of a 3 Part Rally Blog about common legal issues facing those who come to the Sturgis Rally.

We love the Black Hills and its natural beauty.  Our home is a source of great pride for us and we are proud to share it with you all.  It is our hope that you enjoy the many recreational activities our home offers, and we hope you come back again in the future.

This Rally is predicted to be the largest in history.  Without attempting to put a damper on anyone’s fun, this message is authored to serve as a brief reminder of various unfortunate issues which seem more prevalent during Rally season.  This message is also authored to address common legal issues past Rally goers have faced.  It is our sincere and genuine hope that by directing your attention to some of these issues, you are able to avoid any and all of these circumstances.

First, there are going to be many riders; many of which are not as experienced as you.  It is important that you exercise a heightened vigilance and caution while riding.  There are uncontrollable variables that can present themselves, and unfortunately will present themselves, to undeserving riders.  Even while in compliance with all laws, regulations, and rules of the road, situations can present themselves which put you at a drastic disadvantage.  In-experienced riders operating a bike that is too powerful, impaired drivers, exhibitionist driving, speeding, distracted driving, uninsured/underinsured riders, and clogged traffic are just a few of the variables you cannot control, but need to be prepared to meet.  It is important to be watchful so as to avoid tragedy caused by someone else.

If you find yourself in an accident, the most important thing is your health.  If you are injured seek immediate medical attention.  Adrenalin can have a major influence on one’s pain tolerance.  You should seek medical attention as soon as you notice any symptoms.  Be specific about all of your symptoms.  Sometimes brain or neck injuries are not immediately apparent.  In addition, take the following precautions:

1-      Preserve any evidence.  Contact the police and they will be able to assist in the preserving of evidence.  Photographs of the whole scene can be vital.

2-      Get contact information of witnesses.   Often times this information can be recorded in the police report, but witnesses often drive off without leaving contact information.

3-      Talk to the police to get your statement, the at-fault driver’s statement and the statements of any witnesses in writing.

4-      Lastly, contact an experienced personal injury trial lawyer.  We hope you give us a chance.  We offer free consultations.

We hope you have a great Sturgis 75th Annual Motorcycle Rally.  If you have any legal questions, contact us at www.JohnsonEiesland.com or at (800) 998-3998.

Part 2 of our special 75th Annual Sturgis Motorcycle Rally is coming soon.

Warning! Prescription Pain Relievers and Pregnancy Don’t Mix

The National Association of Attorneys General has asked the U.S. Food and Drug Administration to require manufacturers of opioid/narcotic prescription pain relievers to place a “black box warning” on labels to alert pregnant women that use of such drugs may harm infants. http://www.bloomberg.com/news/2013-05-13/attorneys-general-ask-fda-to-require-warning-for-drugs.html

What is a “black box” warning?

A black box warning is the sternest warning by the U.S. FDA that a medication can carry and still remain on the market in the United States. When manufacturing a product (and a drug IS a product), if a risk can’t be eliminated, the manufacturer is required to warn the users of the product of the potential dangers involved in its use. Drug manufacturers must conduct extensive clinical trials and are required to honestly and accurately report any adverse events experienced during those clinical trials before a drug is made publicly available. But the manufacturer’s duty doesn’t end there. They must then also monitor and report complaints about adverse reactions they receive about their product after it has been made available to the public and take appropriate measures to warn of newly discovered risks.

The FDA requires a black box warning if the medication can cause serious undesirable effects compared to the potential benefit from the drug, or if a serious adverse reaction can be prevented, reduced in frequency, or reduced in severity by proper use of the drug. In the case of these pain relievers, while they may be safe to use by adult women, they are not safe to use by pregnant women.

Neonatal Abstinence Syndrome

Use of prescription pain relievers by pregnant women has led to an alarming increase in a condition known as Neonatal Abstinence Syndrome (NAS). This condition occurs when infants who have been exposed to opioid medications through their mother’s use during pregnancy experience withdrawal symptoms after birth than can include abnormal sleep patterns, tremors, vomiting, seizures, weight loss and other problems. In one state alone, Kentucky, instances of NAS have risen 2500 percent over the past ten years. Babies who are born dependent on powerful pain killers can face a lifetime of challenges, both physically and mentally.

Brand Names

Some of the brand names of opioids involved in this warnings effort include codeine, hydrocodone, and oxycodone, sold under brand names such as Vicodin, OxyContin and Percocet.

We hope that this information has been helpful to you. If you desire further information about defective products, drugs, or medical devices, feel free to contact us at Johnson Eiesland Law Offices, P.C. in Rapid City, South Dakota. Attorneys Greg Eiesland (geiesland@aol.com) and Aaron Eiesland (ae.law@live.com), along with their professional staff, are experienced in the handling of product liability cases, and are passionate advocates for those who have been injured or wronged.

Arbitration: Beware the fine print

Remember the photos of the Carnival Cruise ship Triumph after it was disabled by a fire?  It was dubbed “the cruise from hell” for a reason.  But the passengers may have a hard time suing anyone for the emotional and physical distress they suffered aboard the ill-fated cruise ship.  When they bought their tickets, there was a forced arbitration clause in the fine print.

What is “forced arbitration”?

Under forced arbitration, consumers who enter into contracts containing an arbitration clause surrender their right to have their cases heard in court should something go wrong.  Pretty much every transaction we make, from purchasing a computer to getting a credit card or cell phone to entering a long term care facility, involves a “contract.”  That is, someone offers you something (a product or service, for instance), you agree to purchase whatever they are offering, you pay for the product or service, and they are supposed to perform as promised.  But what happens when the product is defective and causes a fire in your home, or the nursing home does not provide the care they promised and your loved one is injured?  In today’s world, the chances are very good that you have given up your right to bring your dispute into a court of law and instead will be forced to arbitrate the dispute.

The deck is stacked against you in forced arbitration

Forced arbitration clauses are written into contracts in such a way that the manufacturer of the product or provider of the service has reserved the right to select a private arbitration firm that will be utilized to arbitrate disputes.  Contrary to claims that are generally made, arbitration is often more costly than having a case heard in court because the private arbitration firms set their own fees as to how much you must pay to file a claim.  In addition to the filing fees, the arbitrators are paid an hourly fee to hear and decide the outcome of your dispute which you, the consumer, must pay a share of.  Arbitration clauses also often allow the corporation to choose the location for the arbitration, regardless of how inconvenient or costly travel will be for the consumer.

Having a dispute settled by arbitration is like playing a baseball game in which the other team hires, fires, and pays the umpires.  A study of top arbitrators for one major arbitration firm that is often used and loved by large corporations found that they rule for the corporations that hire them 93.8% of the time.

Arbitration Fairness Act would reopen the courthouse doors

Federal legislation introduced on May 7 by Sen. Al Franken (D-Minn.) And Rep. Hank Johnson (D-Ga.) to ban pre-dispute forced arbitration clauses would restore Americans’ right to have their dispute heard in court.  “Pre-dispute” just refers to the fact that you were forced to enter into the agreement to arbitrate any and all disputes before any dispute even arose.  This legislation would in no way foreclose your ability to have your dispute arbitrated should you choose to do so, but it would leave that decision up to you, and you would make the decision after the dispute arose.

The Arbitration Fairness Act of 2013 (AFA) (S.878/H.R.1844) would eliminate forced arbitration in employment, consumer, civil rights, and anti-trust cases.  It would ensure that the decision to arbitrate is truly voluntary and restore fundamental rights created by state and federal laws and our Constitution that are currently at risk of being wiped out by forced arbitration.

Johnson Eiesland Law Offices, P.C., in Rapid City, South Dakota, is devoted to protecting the civil justice system.  Attorneys Greg Eiesland (geiesland@aol.com) and Aaron Eiesland (ae.law@live.com), along with their professional staff, are passionate advocates for those who have been injured and wronged.

$3.7 Million Verdict in Colorado Nursing Home Death

Last week a jury in Pueblo, Colorado held a nursing home accountable for causing the death of an 88-year old woman.  Janet Smith was taken to Belmont Lodge Health Care Center in May of 2011 for rehabilitation of two broken ankles.  Ms. Smith suffered from osteoporosis and broke both of her ankles in separate incidents, rendering her unable to walk.  She was outfitted with a Foley catheter so she could urinate.  Her 5-day stay at the nursing home was to be temporary, but negligence related to the monitoring and care for that catheter by the Belmont Lodge staff led to a serious urinary tract infection which entered her bloodstream and resulted in sepsis and death.

Ms. Smith’s daughter, who had been at her bedside daily, noticed on the second day of her mother’s stay at the nursing home that the urine in the catheter bag had started turning darker and darker, yet no staff came to check on it.  In fact, a document from Belmot Lodge shows a nurse checked on Ms. Smith shortly after 6 a.m. on May 6, 2011and the next check-in wasn’t recorded until almost 22 hours later.  By May 8, Ms. Smith was found unresponsive in her room and was sent to the hospital.  However, the nursing home failed to inform Ms. Smith’s daughter of the change in her mother’s condition.  When she arrived at the nursing home to visit, she found her mother’s things packed in a box and the room ready for the next patient.

The standard of care demands that catheters be monitored for signs of infection, and that the catheter bag be emptied and the area cleaned regularly.  Nursing home records reflected no monitoring whatsoever.  There were gaps of 19 hours, 22 hours, and 12 hours where there was no record of a nurse or CNA checking on Ms. Smith or going into her room at all.

The jury found that the nursing home had neglected the care they had promised to provide to Ms. Smith, and awarded her estate and her daughter $200,000 for Ms. Smith’s emotional distress, and $3.5 million in punitive damages.

We have become all too familiar with this type of neglect in long term care facilities.  The owners of some long term care facilities, ever seeking to enlarge their profits, frequently make such severe cuts in staffing that it becomes nearly impossible for the nursing home staff to provide the kind of care and monitoring necessitated by the residents.  It is never acceptable to cut staff to the point where the residents are no longer receiving the necessary care, the care that they, their insurance providers, and the taxpayers through Medicare and Medicaid are paying them to provide so that the owners can pocket more profit.  Last week, this jury in Colorado delivered that message loud and clear.

If you or a loved one have suffered injury due to abuse or neglect in a long term care facility of any kind, feel free to contact us for a free consultation.

Greg Eiesland (geiesland@aol.com)

Aaron Eiesland (ae.law@live.com)

Johnson Eiesland Law Offices, P.C. (www.johnsoneiesland.com)

Rapid City, South Dakota

605-348-7300

1-800-998-3998

 

Nursing Home Week

 

May 12-18 is National Nursing Home Week, an annual observance that honors the residents, their families, volunteers and staff of our nation’s nursing facilities.  It is a perfect time to make a visit to a friend or loved one in a nursing home.  If you are unable to visit, making a phone call, sending a card or flowers will likely make someone’s week a lot brighter.  An oft-quoted statistic is that six out of 10 nursing home residents never have any visitors. Take this time to let someone know that you are thinking about them.

In our representation of people who have experienced abuse or neglect in a long term care facility, we have had the privilege of hearing the stories of some incredible people who have lived in the long term care facilities in our state.  Unfortunately, all too often those stories can only be told to us by the family members who have mourned their passing as they have been victims of abuse or neglect.  Many nursing home residents are the very people who planted the seeds that have made our community what it is today.  They have been the business people, teachers, nurses, and parents from yesterday who produced the good things we now enjoy.  We are always left wishing we had actually had the opportunity to know these people.

We have also had the good fortune to run into some hard working CNA’s and nurses who give their hearts and souls to caring for the elderly, usually in the face of tremendous obstacles.  Being a hands-on care giver is a terribly difficult job.  Not everyone can do it, and not everyone should do it.  But to those who do this demanding work, and do it with so much compassion, our hats are off to you.  Thank you.

If you or a loved one have suffered injury due to abuse or neglect in a long term care facility of any kind, feel free to contact us for a free consultation.

Greg Eiesland (geiesland@aol.com)

Aaron Eiesland (ae.law@live.com)

Johnson Eiesland Law Offices, P.C. (www.johnsoneiesland.com)

Rapid City, South Dakota

605-348-7300

1-800-998-3998

 

Tort Reform Costs Us More

In this election year it is important to understand the true basis of campaign statements. To that end, many individuals have been and will be offering the positions that curbing lawsuits will promote reduced healthcare costs and ensure there are enough doctors to take care of everyone.  Unfortunately for them, the facts prove otherwise. Continue reading