File this one under the "strange but true" category. While researching Ohio law recently, I stumbled upon an actual Ohio case involving--I'm not kidding--an eye injury to a child from a Red Rider BB gun (those of you unfamiliar with "A Christmas Story" will have no idea what the significance of that fact is at this point, but maybe the video clip will clue you in). Apparently there was some horseplay amongst some minor children and one child accidently shot another with the BB gun.

As it turns out, Ralphie's Mom in the movie ("You'll shoot your eye out!") was right after all. In honor of that movie (one of my favorites of all time), and in the spirit of holiday safety, I feel compelled to bring this case to the attention of the Internet world...

Mom's advice aside, I have to side with the Dad who bought the BB gun for Ralphie. If Dad doesn't buy the gun, the Bumpass' dogs never would have eaten the Christmas turkey, the Parker family would have never been introduced to "Chinese turkey," and the ending of the movie would have been downright lousy. Long live Ralphie Parker and his Red Rider "Peacemaker."

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I don't practice divorce law, but as a fellow blogger I come across some pretty good blogs dealing with other areas of the law. One I recently found was "The Ohio Family Law Blog," written by Dayton attorney Robert L. Mues. His blog is an excellent resource for a variety of topics related to divorce law, including insightful information for parents on how to deal with all sorts of parenting issues that accompany divorce. The address is http://www.hcmmlaw.com/blog/ or you can link to it by simply clicking on the title of this post.

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Recently I posted about the pharmaceutical industry's attempt to avoid legal responsibility for maiming and killing Americans by claiming in lawsuits that if The FDA approves a drug, it "pre-empts" state laws giving injured citizens the right to sue them, and therefore makes them 100% immune from any liability (See November 9, 2008 post, "Big Pharma, The FDA, And You: Guess Who Loses?"). In that post, I told the story of Diane Levine, a Vermont musician, who, in a twist of cruel irony, lost her right arm after being given an IV injection of the drug Phenergan (an anti-nausea drug) for a simple migrane.

Today I found a link to a video that introduces her, and explains her struggle. It captures more in 22 minutes than whatever I could with a simple blog post.

In the video, you won't find a bitter or angry person. And this is typical, in my experience with representing people who have been seriously or catastrophically injured. If I've found one maxim to be true over and over again, it's this: the people who are hurt the most typically complain the least, despite having every reason to complain alot. She is full of grace, insight, and a willingness to perservere in the face of a preventable tragedy.

America, meet Diane Levine. You can click on the title of this post to see her story. I hope her legal battle has a happy ending, but with this arch conservative U.S. Supreme Court, don't count on it. My uneducated prediction is that the U.S Supreme Court will rule in favor of the drug company, and the industry will now enjoy 100% immunity for ANY drug or medical device, even if either is horribly defective.

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Here's the scenario: your spouse is injured in a car accident caused by the negligence of another driver. She sustains a serious, permanent, traumatic brain injury. She can no longer speak, think, or care for herself normally, much less perform every day activities like driving. You take months off work from your business to personally attend to her medical needs, take her to appointments and therapy, assume all of her household activities, and you will continue to do this indefinitely because her injuries are permanent.

Obviously, your business suffers and you lose substantial income from work because you choose to be at your wife's side as her primary caregiver, and not pass her care off to strangers.

Is your lost income recoverable against the negligent driver's insurance company? No, according to The Ohio Supreme Court in Hutchings v. Childress (you can click on the title of this post to read the opinion until I figure out what the heck is wrong with my direct link function...)

This was an issue of "first impression" for the Court (meaning that no previous Ohio court or legislation had addressed the issue). The Court had 3 choices here: (1) recognize that when someone's carelessness causes a life changing injury, and a spouse assumes the role of primary caregiver, your reasonable wages lost due to caring for your spouse are recoverable against the negligent party's insurance company; (2) allow for the "reasonable value" of the services performed by the spouse if they were performed instead by professionals like nurses' aides, therapists, etc; or (3) not allow for any compensation whatsoever.

The Supreme Court ruled that, despite the husband's choosing to become his wife's primary caretaker, and losing hundreds of thousands of dollars in lost income in the process, the negligent driver's insurance company didn't owe them a penny in lost family income. Rather, all that the insurance company owed was the "reasonable value" of similar services, such as if the husband hired a nurses' aide to care for her.

What kind of message does this send? Let's see. Someone's carelessness turns your life on its head. Your spouse will never be the same. You do the right thing, step it up, abandon the role of husband or wife and become caregiver, bather, therapist, cook, driver, and most importantly, are just THERE at every turn for your spouse because he or she deserves no less. And your business suffers.

The result? Your spouse gets first rate care, your income suffers significantly, and you're "entitled" to the mimimum wage rate for someone like a nurses' aide. You're essentially punished for doing the right thing. Who benefits from this? The negligent party and his insurance company.

Frankly, this decision won't act as a disincentive for spouses to stay home and care for their injured spouses, as such a choice is a selfless act of love that is probably made irrespective of what consequences such a decision brings. But if there's a choice between recognizing the value of that honorable choice, and all the losses that go with it, or marginalizing it and actually rewarding the negligent party's insurance company with bargain basement accountability, the choice seems pretty clear.

But now this decision is officially "the law." I thought we were a society that honored and believed in "family values." This decision certainly doesn't promote or recognize that concept.

(visit our website at www.n-wlaw.com)

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Buying that new car? Were you offered "credit life insurance" to pay off your loan if you die? Here's what often happens. In your zeal to drive off with your new ride, the salesman asks you about purchasing credit life insurance. He helps you fill out the application by asking: "You've never had cancer or a heart attack or anything major like that, have you?" You say no, so he checks "no" on all the boxes and you sign the application.

Only one problem. Below is language from a typical credit life application:

"1. I am not eligible for any insurance if I now have, or during the past 2 years have been seen, diagnosed or treated for:

(a) A condition, disease or disorder of the brain, heart, lung(s), liver, kidney(s), nervous system or circulatory system; or

(b) Tumor; Cancer; Uncontrolled High Blood Pressure; Diabetes; Alcoholism; Drug Abuse; Emotional or Mental Disorder; Acquired Immune Deficiency Syndrome (AIDS); the Aids Related Complex (ARC); or received test results showing evidence of antibodies of the AIDS virus (HIV Positive).

Read (a) carefully again. Look how broadly it is written. If you were treated for pneumonia or even bronchitis within the 2 year period, you were "treated for...a condition of the lung(s)," making you technically ineligible for the coverage!!!

But wait, you say-- the salesman only asked about major diesases, which your now departed spouse did not have. In fact, he died of something unrelated to a "condition of the lung(s)." No matter. Chances are, your claim for the life insurance will be denied, and now you're stuck with having to sue to prove you're entitled to the $8,000 loan balance on the car.

Therein lies the problem with this insurance. The policies are downright lousy and one sided and you never know it until you try to use it. Bottom line: your chances of actually qualifying for it are so low that it is a borderline ripoff, in my opinion. Even if the salesman was ethical and thorough in the application process, and you simply forgot about a prior medical treatment which was not disclosed on the application, the language of these policies is such that you will still be denied!

It's a rigged game, in my humble opinion. In the words of Nancy Reagan, "just say no!"

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If the FDA approves a drug and its warning label, should the drug manufacturer be shielded from ANY liability when the drug harms or kills people? Wyeth Pharmaceuticals, maker of the anti-nausea drug Phenergan, is asking The U.S. Supreme Court to do just that in a pending lawsuit. In this case, a Vermont musician had her arm amputated after given the drug for a migrane. Apparently,there are 3 ways to give this drug, and the method used to administer the drug in the musician's case can cause gangrene. And she is the 20th person to have an arm amputated due to this drug.

Wyeth's defense? Hey, we warned of this on the drug label, and the FDA approved the warning. The woman now missing her arm claims: maybe you should have warned physicians NOT to adminster the drug in this manner if a simple anti-nausea drug is going to cause people to lose their arms due to gangrene, and you KNOW ABOUT IT.

The drug manufacturers' efforts to obtain 100% immunity for drugs it introduces to the public has its roots in the Bush administration's efforts to protect the pharmaceutical industry from any lawsuits as long as the FDA approves the drug. But here's the rub, as poimted out by a recent editorial in The Boston Globe:

In the past, the FDA never claimed, as it does now, that its approvals of drugs or their labels should protect drugmakers from liability. This change in policy, which was opposed both by former FDA commissioners and current career FDA staff, is part of the Bush administration effort to free industry generally from tort suits. Former commissioner David Kessler's argument against pre-emption is that the FDA sees relatively little test data on a new drug once it is on the market.

http://www.ohio.com/editorial/commentary/34162924.html

Protecting drug companies is only part of an orchestrated effort by the Bush adminstration to protect big business from liability in a variety of situations. Sound familiar? It should. We heard it with Wall Street, didn't we? "Government stay out of the markets--they can regulate themselves." And for eight years now, this same administration has been saying: "And no lawsuits either--it's not good for business." Isn't this the same administration that has been bemoaning a lack of societal "personal responsibility and accountability?"

Here is the essence of the last eight years: a whole truckload of risks (your financial risks in the market, what you eat, what you drive and the drugs you take) has been transferred from corporations to you.

Now sit back and think about all the drugs put out on the market over the years that caused massive harm or killed people, and were either recalled or withdrawn from the market. Does it make you feel safe to know that all these drugs were approved by the FDA? Well what if the FDA gets it wrong? And what if the drug manufacturers either failed to adequately test a drug or withheld data from the FDA?

My guess is that this Supreme Court, one of the most conservative and business friendly in years, will rule in favor of Wyeth. If that happens, hopefully the new Congress will react by passing a law prohibiting the drug industry from avoiding its legal accountability if drugs "approved" by The FDA turn out to be dangerous.

This is not some anti-corporation rant. Corporations employ millions of people in this country and are a vital cog in the economic wheel. They deserve to make billions if they perform their due diligence and take reasonable measures to put useful and safe products on the market. That's the American way. But they shouldn't get a free legal pass when they cut corners by hiding behind a government agency that gets it wrong, or didn't have the capacity to get it right.

Otherwise, "personal responsibility and accountability" is just a one way street...

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