Defense Medical Exams v. Independent Medical Exams

Every defendant in Tennessee is entitled to have a doctor of their choosing examine the plaintiff to make sure the plaintiff's complaints are legitimate. These exams are not independent medical exams! These exams are Defense Medical Exams because the defense lawyer, and the defendant's insurance company, pick the doctor who will best represent the defense interests and hurt the plaintiff's case. Juries should be aware of the profound bias of these hand picked doctors who sell thier opinions for thousands of dollars.

If the defendants fail to even produce one of these hand picked paid opinion witnesses it really means that the defense lawyer, and the insurance company, could not get even the most biased defense doctor to contradict the treating doctors opinion about the plaintiff's medical condition.

In cases where the defendants do want a defense medical exam, because the defendants get to choose the doctor, the plaintiff's lawyer should always request to videotape the defense doctor's examination so the jury, and the plaintiff's doctor, can see what was actually done and said during the examination. This allows the jury to evaluate what really went on and how biased the doctor really is. For example defense doctors frequently fail to put down helpful facts and information told to them by the plaintiff and only list items that hurts the palintiff's case. The only way to avoid this is by making a record of the visit. The best way to make a record is by videotaping the DME exam.

For those interested, I had a request for a defense medical exam come up in a trucking case recently. The brief I filed is attached, see: uploads/file/Brief in support of videotaping DME 5_5_08.DOC The defendants told me the doctor was going to refuse to allow to have his exam of my client videotaped! I think after reading this blog we all know why.

Trucking Companies Turnover at 103% and Expected to go Higher

Turnover rates in the trucking industry have declined as a result of the slowing economy, as drivers are holding on to their current jobs, hesitant to move from company to company. Regardless of the decline, turnover rates remain at a high103% in the first quarter of this year. In breaking down this number, if a company hired 100 employees in 2007, they would have had to replace all of those employees once, and three of them twice, in order to match this rate of turnover.

In his article, Driver Turnover Rates Decline, but Trucking Expects Reversal, Eric Miller writes, “’It is important to note that, while the driver market has eased over the last year (or more), this is only a temporary phenomenon,’ ATA Chief Economist Bob Costello wrote in the report. ‘In the longer-run, the driver shortage will be back with a vengeance, once freight volumes pick up, likely boosting turnover.’”

Both high turnover rates and driver shortages cause numerous problems in the trucking industry. High turnover rates require trucking companies to constantly hire and train new employees, decreasing the number of experienced truckers on the road. Driver shortages, on the other hand, push a trucking company to extend the number of hours a driver will be on the road in an effort to meet demand.

My thanks to Jackie Bretell who wrote this post.

Bigger Trucks are not the Answer to Higher Fuel Prices

As diesel fuel prices continue to rise, trucking companies are seeking dangerous alternatives in an effort to cut costs. In addition to delaying maintenance and using shortcuts which impact safety, the trucking industry has proposed to increase the size of trucks.

Michael Smid, the president of YRC North American Transportation and Tom Carpenter, the director of transportation for International Paper, have suggested increasing the size and weight of tractor trailers from 80,000 pounds to 97,000 pounds. According to Smid and Carpenter, an increase in the size of tractor trailer used would decrease the amount of trips taken by tractor trailers, and therefore, decrease the number of miles driven by a tractor trailer. In his article, Industry Urges Bigger Trucks, But Key Lawmaker has Doubts, Sean McNally writes, “Reducing vehicle miles traveled, Carpenter said, would mean fewer accidents.”

Currently, every sixteen minutes of every day, another person in the United States will be injured or killed in a tractor trailer related accident, resulting in over 5,000 deaths, and over 140,000 injuries each year. While a decrease in the amount of trucks on the road, and the number of miles traveled by tractor trailer drivers on the road is needed, an increase in the size, mass, and weight of the trucks is not a solution to this growing problem. Gerald Donaldson, senior research director for the Advocates for Highway and Auto Safety said, “More lives would be lost in large truck crashes, more highways would be lost in large truck crashes, more highways would be damaged and more bridges would be placed at an increased risk for catastrophic failure.”
Along with numerous advocacy groups, the Association for American Railroads and the American Short Line and Regional Railroad Association also oppose increasing truck sizes, as the risks clearly far outweigh the rewards.

My thanks to Jacquie Bretell for her assistance with this entry.

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Seat Belts On Bus Would Have Saved Lives In Atlanta According to NTSB

The National Transportation Safety Board has been investigating the March 2007 Atlanta bus crash that killed five students from Bluffton University in Ohio. Yesterday they released the report and found that one of the key factors in the deaths was the lack of seatbetls aboard the bus.

I have litigated this issue before, as have other lawyers. The busing industry needs to wake up and install seatbelts so that lives are saved in rollover crashes. It is unbelievable that citizens are still dying and national action has not been taken on this issue.

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Fuel Prices Result In Greater Use of Technology by Trucking Companies

Onboard computing technology that tracks operational inefficiencies, such as bad driving habits, that increase overall fuel consumption is now becoming common. Along with reducing fuel consumption these onboard systems are also being used to evaluate driver performance. By tracking driver performance trucking companies will be alerted when their drivers are using unsafe driving methods, such as driving at excessive speeds, or slamming on their breaks.

This same technology will also help companies either retrain its drivers or fire those drivers that refuse to be trained. For those companies that refuse to spend the money to train their drivers, or to fire them, a skilled trucking lawyer will be able to show to a jury the indifference of the trucking company.

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92,500 Commercial Drivers DUI Daily and 2,210,750 CDL Drivers and Tractor Trailers Violating Safety Laws Every Day

For years, the Commercial Vehicle Safety Alliance has been reporting that fewer violations have been found during annual road checks. This year 23.9% of all inspected trucks were found to have violations. Almost one quarter of all trucks on the road were OUT OF SERVICE! What is more the CVSA failed to extrapolate the number of out of service violations found during the one day annual "Roadcheck"  to all the trucks on the road. The Commercial Vehicle Safety Alliance also fails to point out that the annual roadcheck is announced and well publicized well in advance. In fact the annual road check, because it is so widely announced in trucking publications, hugely UNDERESTIMATES the safety violations common in the commercial vehicle industry.  So what does this mean to you?

In her article, CVSA Finds Fewer Violations During Annual Roadcheck, Amy McMahon describes “…23.9% of the 52,345 vehicles that underwent inspections during Roadcheck last month” being found in violation of the standards set forth for tractor trailers. McMahon goes on to write, “In the highest-ever total number of inspections, brake defects continued to be the most common violation, CVSA said.” The test, used by CVSA, is comprehensive, requiring an inspection of 37 different areas, including different components of the vehicle as well as the logbook and license of the driver.

While brake defects were the highest source of violation, nearly 1%, or 523, of those violations were due to drivers directly disregarding the drug and alcohol safety regulations. With over 9.25 million trucks and buses registered in the United States in 2005, this small 1% soon equates to over 92,500 drivers being found under the influence of drugs or alcohol while operating their Commercial Motor Vehicle.  See: www.fmcsa.dot.gov/facts-research/facts-figures/analysis-statistics/cmvfacts.htm One percent of the registered trucks and buses equals over 92,500 drivers under the influence of drugs and Alcohol on the road every day and 2,210,750 drivers and trucks out of service daily due to safety violations.

Previously, when a driver failed a drug or alcohol test, the trucking company was not required to report the failure to the licensing state. This changed on June 13, 2008, when the Department of Transportation issued an emergency rule which allowed the trucking firms and the testing companies to release this information to the state. However, even with this emergency ruling being passed, the rule set only applies to seven states that currently require the reports. These states do not include Tennessee or Georgia, and the only state in the Southeast that is included is North Carolina.

Stephen Campbell, CVSA’s executive director, is quoted as saying, “It is clear that the safety message is being heard and the increased enforcement presence is making a difference.”
While Campbell may find that a 23.9% violation rate to be a long-awaited sign of improvement, others may find the idea of one in four tractor trailers on the road in violation of safety standards alarming, even more so since the annual roadcheck is announced in advance. 

As if these facts are not scary enough, more and more Commercial Motor Vehicle drivers are having seizures, heart attacks, and other unconscious spells behind the wheel, eventually leading to deadly crashes on interstates and highways. A recent Wall Street Journal article states, “Hundreds of thousands of drivers carry commercial licenses even though they also qualify for full federal disability statements.”

Despite recommendations set forth by numerous U.S. safety regulators since 2001, the Federal Motor Carrier Safety Administration has failed to meet any of these recommendations, continuing to let drivers do things such as specifically choose doctors who avoid their medical conditions, commonly known as “doctor shopping”.

Trucking companies that routinely put these dangerous trucks and drivers on the road, killing innocents, need to be punished to the extent the law allows.

My thanks to Jacquie Bretell for her valuable help in researching this entry.
 

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Alabama Requires Seat Belts on School Buses

Alabama should be commended for requiring seat belts on some school buses. The state has implemented a three year study to determine if children are in fact safer with seat belts on a Bus. Of course the only way the state will be able to figure this out is by having a rollover accident of a bus without seat belts (and seeing how many children die) v. a rollover of a school bus with seat belts (and seeing how many children live). Let's just say I would want my three children to be in the test group with seat belts.

Only six states have laws requiring seat belts on school buses but there are currently no national guidelines. "Transportation Secretary Mary Peters issued a proposal last November that would expand the use of shoulder belts  but stopped short of ordering that all new buses be equipped with seat belts." Alabama Students Buckle Up on the Bus, Chattanooga Times Free Press, Section B5, Col. 1, (8/12/08)

I generally believe that states should have the power to decide issues and the more decentralized the role of government the better off we all are. This is not one of those times. The Federal Government should act to protect our children and require Seat belts. This should include retrofitting existing buses with lap belts.

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Sherman Texas Bus Crash Deaths Preventible with Seat Belts

In Sherman Texas a bus crash killed 15 people and injured many others. It is clear that seat belts were not available. Seat belts have VERY little cost and can easily be installed on a bus, but buses continue to be ordered without seat belts. In a rollover, such as the case in Texas, seat belts save lives by keeping the passengers inside the bus. Once a bus turns on its side or rolls over, the chances of passenger death and serious bodily harm increase dramatically. How do I know you ask?

My firm successfully litigated this very issue almost ten years ago. We said in part of our complaint:

COUNT IV - FAILURE TO INSTALL SEAT BELTS
26. Plaintiff hereby incorporates by reference Paragraphs 1 - 25 as though set forth verbatim herein.
27. Defendant _______ Lines, Inc. had a duty to its traveling passengers to provide
a safe and comfortable transport to their destination, including your Plaintiff’s decedent, and as such, Defendant _______ breached that duty by not providing seat belts or other restraining devices to the passengers to ensure their safety in case of an accident or a roll over.
28. As a direct result of Defendant _________'s failure to provide seat belts or other
restraining devices to Ms. _____, Ms. _____ was thrown about the bus and ultimately ejected from the bus during the crash at issue in this lawsuit, which resulted in her death.
29. Plaintiffs allege that Defendant _______’s failure to provide seat belts or other restraining devices was an intentional act of Defendant ________ for the purpose of enhancing and preserving corporate profits at the expense of passenger safety.

There were many other violations of federal regulations by the operator of the bus company and the driver in this case. Given the disclosed violations it was not an issue of whether there was going to be a crash, but only an issue of when. Had there been seat belts, the consequences of the crash would not have been as severe.

People must insist that busing companies and manufacturers install seat belts on buses. If they have seat belts installed on an airplane, don't you think they would be needed as much, or more, on a bus? Can anyone think of a good reason why there should not be seat belts on a bus?

The busing industry states seat belts are not necessary because buses rarely roll over. They ignore the consequences of what happens in a rollover as "statistically insignificant." I doubt the busing industry will be willing to tell the families of those killed and injured in this most recent in a string of rollovers that their loved ones are statistically insignificant, or that you are statistically insignificant, but that is exactly what the continued failure to install seat belts by the busing industry means.

You can see an article and video of the bus, and the aftermath of the wreck, as well as hear some of the other violations of the FMCSR, at: www.reuters.com/article/topNews/idUSN0819399020080808

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