Child Injury Laws - By Jonathan Rosenfeld

The mention of a pedestrian injury usually conjures up images of a driver hitting a pedestrian with the front of their vehicle.  Though far less common, backing up vehicle injuries remain a source of significant injury to pedestrians-- young and old.  

An alarming 17,000 people are injured every year when vehicles 'back' into them.  Backing up vehicles also account for an average 288 pedestrian deaths each year when vehicles back over pedestrians in the rear of the vehicle.

While keeping a cautious lookout can surely help prevent some of these car accidents from occurring, the fact remains that vehicle design compounded with certain angles in which pedestrians may be positioned--- gives many drivers very little opportunity to detect what is in back of them.

A proposal by the National Highway Traffic Safety Administration aims to reduce the alarming number of 'backing up' accidents by requiring the installation of built in cameras and viewing screens to give drivers a better view of what is in the path of their vehicle as they drive in reverse.

While the proposal still has to be approved by congress, I applaud this pedestrian safety technology.  For a mere $160-200 per vehicle, this technology is a bargain compared with the toll such backing injuries put upon pedestrians--- who frequently sustain life-altering injuries when they are crushed or pinned beneath a backing up vehicle.

Related Child Injury Law Blog Entries:

Cars In Parking Lots Pose A Real Danger To Child- Pedestrians

Don't Bother Giving Statements To Insurance Companies After An Accident

Kids' Fractures Require Special Attention To Avoid Complications Down The Road

In the days following a personal injury accident, many injured people receive an outpouring of calls and messages from friends, family and.... insurance adjusters.  While it may be easy to give the insurance adjuster a return call while in the call returning mode, the fact remains that insurance adjusters are not your friends.  

From a personal perspective, insurance adjusters and the investigators they commonly associate with may be good, fine people.  However, as soon as a car accident, fall, or any other type of personal injury occurs, their interest is directly opposed to yours.  

Truth be told, the insurance companies for responsible parties have a job to do in terms of defending their insured's rights.  What many injured people fail to appreciate is that by taking an oral or written statement from you, they are actually in the process of assembling a case against you!  That's right, the friendly voice on the telephone who seems sincerely concerned about your physical condition is jotting down notes about your injuries and medical care in order to minimize or deny payments down the road.

As a personal injury lawyer, I consistently find insurance companies trying to gain the upper hand in the claims process from the moments following an incident.  While it may be completely legal, I strongly suggest injured parties resist the temptation to discuss any aspect how an incident occurred or their injuries with anyone aside from their immediate family, doctor or lawyer.

You never mentioned that!

Though I've never been to a training session for insurance adjusters, I imagine the insurance companies spend a good deal of time teaching their representatives how to take a recorded statement that is supportive of the companies position.  In reality, it's not that hard considering that few people indeed know what their rights are or even consider how a short statement can impact the course of their claim for years to come.

Just recently, I was retained by the family of a teenage boy who was struck by a car as he crossed the street.  Unfortunately, the impact resulted in fractures to the boy's leg and hip.  The family came to see me after they received a letter from the insurance company that they were denying the boy's claim.

Delay, Delay, Delay

During our meeting, I quickly understood the underlying reasons for the denial.  After returning from the hospital, a representative from the insurance company made a house call to the boy's home under the guise of 'just wanting to see how he's doing'.  Within a five minute discussion (taken on a tape recorder) the boy divulged that he had injured the same leg in a soccer practice years before, but also that he was listening to music at the time of the incident.  

While these two tidbits, likely have nothing to do with the driver's failure to keep a proper watch or extent of the boy's injuries, they arguably provide enough information for the insurance company to deny payment on the claim in a pre-litigation context.

As I prepare to file the lawsuit in this case, I am again reminded that the the handling of personal injury claims is a business-- and indeed a very big one-- for insurance companies.  If you think about it--- and I'm sure many, many actuaries have-- the denial or minimal offer on a legitimate personal injury claim is simply good business for the insurance company.  For one or two years during the course of litigation, they get to hold onto the money for the claim and invest it or do as they wish with with it.  While some insurance companies do have to pay their attorneys to represent them, many lawyers who do insurance defense work have relatively low rates and many times are on retainer--- meaning it doesn't cost the insurance company an extra penny to litigate the claim. 

For a large insurance company with thousands of claims, the cost benefit of completely denying or offering substandard payments can be substantial!  Consider the time value of money for a significant injury case worth $500,000?  If an insurance company conservatively invests the money during a two year litigation process at 3%, the company has effectively made an extra $30,450 by simply holding on to their money.  When similar calculations are spread amongst the thousands of open claims, the added benefits to the insurance company afforded by the delay is staggering!

As a lawyer who regularly goes to court, litigating another case is nothing new or especially burdensome to me.   In fact, I enjoy going to court and trying tough cases for my clients, but when I think about the inefficiencies created by an insurance companies delay and deny claims handling practice, I get downright disgusted.

So what's the answer?

Rather than try to instruct clients on what information may be disclosed or how to answer queries about liability or the extent of their injuries, I've simply adopted a 'no contact' policy for all clients when it comes to their involvement with insurance companies.   There is no legal obligation (outside of uninsured or under-insured motorist matters), to provide insurance companies any personal information prior to filing a lawsuit.  Why given them an upper hand?

Related:

7 Steps To Help Your Child's Personal Injury Or Medical Malpractice Case

Can You Afford Not To Speak To A Lawyer Following Your Child's Injury?

80% Of Vehicle-Pedestrian Accidents Occur Within Crosswalks

Kids' Fractures Require Special Attention To Avoid Complications Down The Road

I receicve many inquiries from parents of injured children who are concerned both about the long-term impact of injuries on their children--- and how to go about seeking legal recourse from the party that may have caused the injured.  While the medical implications of an injury are indeed best suited for a physician to address, to potential legal redress may be evaluated by an attorney experienced in personal injury law.

Few relationships have such an alignment of interests as an attorney / client relationship in a personal injury context.  Under a contingency fee payment plan, the financial interest of client and lawyer and completely aligned. Simply put, a contingency payment is a payment based on a recovery for the injured person. In a contingency fee arrangement, the attorney receives no payment until the lawsuit is tried to verdict or settled. After all the work has been done, the attorney receives a percentage of the recovery.

The percentage of the recovery a lawyer charges is dependent on the type of case and the complexity of the matter. Nonetheless, the exact percentage should be agreed upon in writing soon after the retention of the lawyer.

In all cases there is a chance there will be no recovery--the case may not have merit or the defendant goes bankrupt, ect.. Under a contingency fee contract, if the lawyer does not win the case then the client will not be required to pay a fee. The client is not responsible for paying the lawyer for any of the time he spent on the case.

The ability to collect a percentage of the settlement or judgment provides a solid incentive for a lawyer to best serve a client. After all, the potential financial reward of getting the highest settlement benefits the attorney and the client equally. So, the attorney will not perform at anything less than his or her best because there is a huge incentive for successfully litigating the case.

Rosenfeld Injury Lawyers, consistently handled personal injury matters on behalf of injured individuals-- never corporations.  Our experience handling cases on behalf of children and other particularly vulnerable people has earned us a reputation in the medical and legal communities as the type of lawyers who will go the distance for their clients.

After reading the Chicago Tribune's article "City Study: Chicago pedestrians in crosswalks are in cross hairs", I'm definitely going to step-up my level of caution before crossing the street.  

Once again, I'm continually impressed with how drivers continue to ignore pedestrians--- even when they are crossing the street within the crosswalks.  

After evaluating traffic data from 2005 through 2009, a staggering 80% of all traffic accidents involving pedestrians who were injured or killed occurred when the person was within the seemingly safe confines of the crosswalk. While pedestrian deaths, have declined fairly significantly from 1994 to 2009, the total number of traffic accidents involving pedestrians remains fairly consistent at around 3,000 per year within the confines of the city.

Other data tidbits from the Chicago Tribune article:

• Hit-and-run accidents account for 33% of all pedestrian accidents
• Hit-and-run accidents account for 41% of pedestrian deaths
• Teens come the largest segment of crash victims
• Taxi cabs account for almost one-third of all pedestrian crashes
• Areas of Chicago with higher incidence of violent crime tended to have more pedestrian accidents

Is help on the way for pedestrians?

Recognizing the frequency and severity of these pedestrian accidents, some states and municipalities have enacted legislation to protect pedestrians.  Though it's still too early to tell, Illinois passed legislation last year that requires drivers to stop--- not just yield when a pedestrian is present within a crosswalk.

In addition to the legislation, new technology may provide an added level of safety for pedestrian trying to navigate their way through the streets of Chicago.  The City has plans to install pedestrian countdown clocks at all of the cities 2,900 intersections that both warn pedestrians how much time they have before a signal changes and provides additional warning to drivers to alert them that the crosswalk may be occupied.

Is driver carelessness to blame?

I remain cautiously optimistic that the new legislation and traffic control technology will help make pedestrians safer.  However, both as my experience as an injury lawyer and statistics tell us, pedestrian-vehicle accidents will most certainly remain a threat to every person walking across intersections until we can recalibrate drivers' behavior.

Chicago Transportation Commissioner Gabe Klein, believes a societal problem is to blame for the apparent indifference for the safety of our peers.  

Whether it is people getting hurt or killed by cars, or people getting shot in their living room by accident (during drive by shootings), which has happened all to often lately, there is a connection.  It's a certain recklessness in our society and in our city thus is causing too many innocent bystanders to get hurt.

While I hope Mr. Klein's somewhat cynical take on society is incorrect, I'm keeping my fingers crossed that new options can prod drivers to take a closer look at safe driving.

Related Child Injury Laws Blog Entries:

Uninsured Motorist Coverage Can Help Children Who Have Been The Victim Of Hit-And-Run Auto Accidents

Chicago Drivers Must Stop For Pedestrains In Crosswalk.... Or Pay Up

Are Facebook & Twitter To Blame For Car Accidents?

Is it really necessary to tell your friends where you're driving?  Or, what about the fantastic new Lady Gaga song?  What about the spicy hot dog with cheese you had for lunch?

Maybe I'm a bit out-dated (though you can still following the Child Injury Laws Blog on Facebook), but I really don't have any urgency to share my instantaneous thoughts with the world-- particularly when I'm on the road.

Apparently, I'm in the minority.  A recent Medill Report Chicago, article by Jeff Beck, "Facebook status: I'm in the car" detailed how many car manufacturers are adding "in-car connectivity" to their new models previewed at the Chicago Auto Show.  As if driving is not enough stimulation, the new products allow drivers to access social networks, e-mail and text while driving.

Even if some of these functions can be carried out via voice commands, it seems as though the new features are simply an invitation to interact as we drive.  I mean, what fun is it to announce to the world that you're 'stuck in traffic' if you can't access the responses from others showing compassion for your situation via responding to your update or tweet?

Frankly, I find the new technologies to be more of a distraction to drivers and a real threat to others on the road.

Ironically, within minutes of reading about this new auto-technology, I saw an article in the Chicago Tribune about a recently filed lawsuit that alleges that a driver struck and killed a pedestrian as she was updating her Facebook page with her cell phone! According to the lawsuit, a man exited his car and called 911 to notify them of an auto accident he was involved in-- at the exact same time the driver posted her Facebook update!

Surely, social networking has its place and utility, but we all must remember that no update is worth jeopardizing the safety of yourself or those around you.

Related:

Suit: Woman in fatal crash was updating Facebook Chicago Tribune, February 15, 2011

Texting Safety Campaign Promises To Reduce Number Of Distracted Drivers Child Injury Laws

Cell Phones and Driving: Review of Research (pdf) ANNE T. McCARTT, LAURIE A. HELLINGA, and KELI A. BRAITMAN Insurance Institute for Highway Safety, Arlington, Virginia, USA

28 percent of accidents involve talking, texting on cellphones, By Ashley Halsey III , January 13, 2010 The Washington Post

Several years ago my law office represented a nine-year-old who suffered an injury to her arm when construction debris fell from the roof of her school where construction was being performed.  Amazingly, there were no fractures or outward trauma aside from some minor bruising and swelling.

After getting checked out at the emergency room, the girl and her parents breathed a sigh of relief as they were happy that the injuries were minor--- or so they thought.

However, in the weeks that followed, the girl's condition did not improve.  Actually, the pain in her arm began to worsen and a throbbing ensued as well.  When re-examined at the emergency room, the doctors were unable to explain the strange phenomena.

As it turned out, our client was suffered from a relatively little known medical condition known as reflex sympathetic dystrophy (RSD), also referred to as complex pain syndrome.

During the course of litigation, I learned a fair amount of information regarding RSD, but ultimately I was left with the impression that this disabling condition is grossly misunderstood amongst many in both the medical and legal communities.

What is Reflex Sympathetic Dystrophy?

Reflex Sympathetic Dystrophy Syndrome is a chronic pain condition that usually affects your arm or leg and displays a group of typical symptoms including pain (intense burning or aching pain), tenderness, swelling, discoloration, and altered temperature.

Many medical experts have classified RSD into two classes. Type 1 RSD occurs after an injury or illness that does not directly damage the nerves in the affected limb; whereas, Type 2 RSD (causalgia) occurs after a distinct nerve injury. Oftentimes, the pain is disproportionate to the severity of the injury.

What are the causes of RSD?

The cause of RSD is still poorly understood. It usually follows a trauma-related injury, but again, it is not well understood why injuries can trigger this condition. Theories include irritation and abnormal excitation of nervous tissues which leads to abnormal impulses along the nerves affecting blood vessels and skin.

What are the symptoms of RSD?

RSD can display a gradual or rapid onset of symptoms, and it may not display all typical symptoms. The symptoms may change over time and will vary from person to person. Typical RSD symptoms include:

• Burning pain
• Increased skin sensitivity (allodynia)
• Changes in skin temperature, color, and texture
• Changes in hair and nail growth
• Joint stiffness, swelling, and damage
• Muscle spasms, weakness, and loss (atrophy)
• Decreased ability to move the affected body part

RSD often starts with swelling, redness, changes in temperature, hypersensitivity. In many RSD patients the symptoms may worsen over time, the involved limb may become cold and pale, displaying skin and nail changes, and suffering muscle spasms and tightening. Like most medical conditions, the symptoms associated with RSD differ from person to person.

What are the treatments for RSD?

There is no cure for RSD. Instead, most treatment options seek to relieve the painful symptoms of the disease. Treatment for RSDS is most effective when started early. Usually, once the limb becomes cold and pale and the limb has muscle spasms and tightening, the condition is often irreversible.

A doctor will usually perform a physical exam and collect your medical history. Sometimes bone scans, x-rays, and MRIs (magnetic resonance imaging) can provide important clues in diagnosing RSDS. These tests can show increased circulation to affected joints, loss of minerals from your bones, and tissue changes.

The treatment for RSD is specifically tailored for each case and the age of the patient. Treatment options include various medications and therapies. Doctors might prescribe over-the-counter nonsteroidal anti-inflammatory drugs (aspirin, ibuprofen, and Aleve) to ease pain and inflammation, antidepressants to treat pain from damaged nerves, corticosteroids (prednisone) to reduce inflammation, and bone-loss medications (Fosamax and Miacalcin) to help treat symptoms.

Your child's doctor might also recommend various therapies to help treat and improve symptoms. These therapies can include: applying hot and cold compresses, topical analgesics to reduce hypersensitivity, physical therapy to help improve range of motion, spinal cord stimulation for pain relief, electrical nerve stimulation to help ease chronic pain, and sympathetic nerve-blocking medication to block pain fibers in the affected nerves. Most medications and therapies merely help treat the pain and inflammation caused by the disease.

Medical complications associated with RSD

If RSD is not properly diagnosed and treated at an early stage (within a few months of your first symptoms), the disease can progress into more severe symptoms including muscle wasting (atrophy) and contracture (tightening of your muscles which can leave your limb contracted in a fixed position).

RSD can also occasionally spread from its source to another area of your body. The symptoms can travel from the initial site of the pain to a nearby area, or spread to an opposite limb, or even leap to a distant part of your body.

RSD & Children

The mystery surrounding the cause, treatments and long-term prognosis for children with RSD is still uniformly unknown.  The uncertainties associated with RSD has resulted in some second-guessing of the condition itself in the medical community.  This can be extremely frustrating for kids struggling to cope with the condition's physical components.

Therefore, it is incredibly important for parents to seek out doctors and medical facilities who have experience diagnosing and treating patients with RSD to help children cope with all of the conditions insidious complications.

Thank you to Heather Keil, J.D. for her assistance with this Child Injury Law Blog entry

Perhaps one of the most anticipated milestones for high school students is the opportunity to get their drivers license on their 16^th birthday. 

In addition to providing a new level of freedom, driving privileges also likely free parents from shuffling their children back and forth to activities.  While the freedom and convenience can be great, we must consider the burden these new drivers have on themselves and those around them.

What type of burden?  Accidents involving themselves, passengers, pedestrians and any other people who share the road.  The fact is teens have the highest rates of traffic crashes and crash fatalities compared with any other demographic. 

A recent article by the New York Times, eloquent, Tara Parker-Pope “New Lessons to Pave a Road to Safety” really did a good job highlighting the problems associated with this group of drivers.

If anything, Ms. Pope’s article was a reminder how—like most of life’s great skills--- experience plays a pivotal role in driver safety.  Rather than the recklessness that gets highlighted in many television shows and movies, plain old lack of experience is the likely reason why teens account for 10 times as many crashes as their middle-aged peers behind the wheel.

The Center for Injury Research and Prevention at Children’s Hospital in Philadelphia analyzed car-crash date and determined that the most common situations where lack of experience may contribute to car crashes include: 

• Scanning errors- 21% of teenage crashes are due to scanning mistakes.  Teens tend to focus on what is immediately in front of them as opposed to what is on their side or what is far on the horizon.

• Misjudging road conditions- Approximately 21% of teenage car crashes involved the failure of the teen to adjust their driving to conditions such as water, ice or snow on the road

• Driver distraction- the other major component of teenage car crashes was driver distraction (20%).  However, studies found that teens were more likely to be distracted by other passengers in their care as opposed to cell phones and texting.

Knowing the real problems associated with teenage drivers, some states have begun to implement more safety measures such as: mandatory driving supervision, restrictions on driving times and limitation on passengers.

New Jersey has some of the most restrictive teen driving laws in the country which require teens undergo 40-50 hours of supervised driving, no driving after 10 p.m., special driving stickers for drivers under 21-years-old--- and a nationally high driving restriction of no full licensure until 18. 

Consequently, New Jersey has lowered teenage driving fatalities more than 30% since the implementation of these policies.  But, given the solid evidence that a bump in the driving age reduces accidents, is it time to bump the driving age to the drinking age when adulthood allegedly brings decision making skills into better focus?

When a client tells me that they were involved in a bike accident, I begin to envision the horrific lay of the land as they are peddling down the street and a car ignores a traffic signal or is busy jabbering on their cell phone and..... whack... 

Well, not to say that the above circumstances don't happen-- and happen with a fair amount of frequency--- the truth is that there's another major component of bicycle injuries that tends to go unknown-- until it happens to you or your child.

I am referring to a type of bicycle accident that can every bit as harmful to the cyclist as getting hit by a car-- 'dooring'.  Dooring refers to the process of when an occupant of a parked car opens their car door into the path of a cyclist causing a collision.  

In some circumstances when the cyclist does have time to react and swerve out of the way, the consequences can be even worse if they go into a live lane of traffic.

Looking before opening a car door is not just good manners-- it's usually the law!

One of the first dooring cases that I worked on involved a teenage boy who was riding in the bike lane when a person picking up blood samples from a nearby doctors office swung open her door and resulting in my client getting thrown off his bike to suffer multiple fractures and a closed head injury.

In response to many severely injured and killed cyclists, many jurisdictions have implemented laws that put the burden of looking before opening a door on the driver and occupants of the vehicle.

In Chicago, the city has codified the responsibility of looking before opening car doors:

9-80-035- Opening and closing vehicle doors

No person shall open the door of a vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers. Added Coun. J. 3-12-08, p. 22781, § 2

Similar legislation has been implemented by the State of Illinois:

11-14-1407- Opening and closing vehicle doors 

No person shall open the door of a vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers. P.A. 79-1069

Certainly, these laws (and their similar counterparts in other states) need more publicity as many drivers are unaware of their existence.  Thankfully, ignorance of the law is not an excuse!  

Most auto insurance policies cover cyclists injuries that result from a negligently opened door on the part of a driver or passenger under the terms of the drivers and/or vehicle owners insurance policy.  However, if you or you child was involved in a situation involving a 'dooring' you should speak to a lawyer who has experience in bike dooring cases and can advise you regarding potential defenses and coverage issues prior to speaking with the insurance carrier.

Resources:

Chicago Bike Laws: Chicago Department of Transportation

Bicycle Safe

Bicycle Universe- Bicycle safety statistics

An antiquated standard that governs the mandatory strength required for the front-seats of cars needs to be improved-- to improve the safety of back-seat passengers--- children. Since 1968, Federal Motor Vehicle Safety Standard (FMVSS) 207 has controlled the standards manufacturers must adhere to for new cars.  

As you can see from the video above, the standard does not do enough to protect passengers seated in the back seats-- the area where children are generally recommended to sit.

Even in relatively low-speed collisions, the current regulatory standards allow front-seats to spring back and hit children sitting in the rear thereby causing significant injury. Lawsuits filed on behalf of brain-injured children have been successful against seat manufacturers in theories premised upon claims that the seats are defective and unreasonably dangerous.

At the very least, I think we need to re-evaluate current auto safety legislation on a far more frequent basis. As technology gives us the ability both diagnose safety problems and implement manufacturing changes, don't we owe it our children to re-evaluate all safety standards at regular intervals?

Unknown to many, a new Illinois law took effect several months ago that forces drivers to stop for pedestrians within the confines of a crosswalk. 

The new law is far more restrictive that the former law merely required drivers to 'yield' to pedestrians within crosswalks.  Similarly, the new crosswalk law applies to all intersections, not just those controlled by traffic signals.

I was glad to see an article by Jon Halkevitch in the Chicago Tribune regarding efforts by the Chicago Police Department to ramp up enforcement of the new law.  Just last month, Chicago officers wrote 127 tickets to drivers who failed to yield to pedestrians in undercover sting operations where plain-clothes officers pose as plain-jane citizens trying to cross the street.

As the new law takes hold, I certainly hope it effectively reduces the number of traffic-related injuries and deaths in Illinois.  According to the Illinois Department of Transportation:

• 6,000 pedestrians are hit by cars annually
• 170 pedestrians are killed in auto-related accidents every year
• More than 1,000 pedestrians are seriously injured every year
• In Chicagoland alone, 12 pedestrians were killed last year

The amount of the fine drivers face is based upon where the incident occurred, but ranges from $50 to $500.

I applaud this important piece of legislation that promises to improve the safety of pedestrians in Illinois.  In addition to hopefully preventing injuries and deaths, the new law will also make the prosecution of personal injury lawsuits involving injured pedestrians somewhat easier given the clear and direct language of the law.

Related:

Active Transportation Alliance

Anytime you swing yourself onto a bike, you are at risk for getting hit by the vehicles you share the road with.  Children riding bikes are at a heightened risk for bicycle collisions given the fact that they are more difficult to see and frequently ride bikes on sidewalks where car drivers may not expect to see them as they pull into a driveway or out of an alley.

Frequently, injured bikers have questions about what they can-- and should do following a collision with a car.  The moments following a crash can leave emotions running high and nerves frayed.  

In this sense, I was happy to see an article written by Mary Misniewski of the Chicago Sun Times, "Helping bike-crash victims stay cool" about a new hot-line established by Active Transportation Alliance for people who were involved in a bike crash or pedestrians who were hit by a car.

By the hot-lines own admission, it is not intended to take the place of a call to 911 for immediate medical attention following a crash.  Rather, the hot-line provides immediate advice to frequently encountered situations following a bicycle accident.  The hot-line also allows callers to leave a message for staff to return the calls.

Hot-line workers can help answer specific questions from bike-crash victims as well as direct them to attorneys who frequently represent people injured in bike crashes.  The bike crash hot-line is (312) 869-HELP (4357).

As a lawyer who has represented many adults and children who have been injured in bicycle-related crashes, I strongly support the creation of this service.  However, I encourage all victims of bike accidents to consult with a lawyer as soon as feasible after an accident as possible.  Early, legal consultation can help secure valuable crash-related evidence and and frequently help position your case for the best possible outcome via settlement or trial.

Most bicycle crash lawyers will provide this initial service for no charge and only receive payment when-- and if there is a recovery for the client.

Related:

Incidence, Severity, and Outcomes of Brain Injuries Involving Bicycles (PDF) 

Helmet Related Statistics from Many Sources, Bicycle Safety Institute

Illinois Bicycle Accident Statistics, Fox Chicago News, April 22, 2010

Ok, I admit it, I'm somewhat addicted to my Blackberry.  Everyday, I feel somewhat obligated to respond to the numerous texts and emails I receive in real-time fashion. 

Hoever after driving around recently, I've come to realize that I'm certainly not along when it comes to this habit of going back and forth with the instantaneous messaging.

Not surprisingly, when we text, dial or talk on mobile devices, our attention is diverted away from what we really need to be doing--- paying attention to the traffic on the road!

I recently read about a new anti-texting program initiated by police in Iowa to remind drivers of the dangers associated with texting while driving. Iowa police are now distributing colored thumb-bands with the message "TXTING KILLS". 

Iowa, like thirty other states has passed laws banning texting while driving.  However, under the first year of the law, police will only issue warnings (along with a thumb-band) to drivers as opposed to fines. 

In addition to passing the thumb-bands out to offending drivers, Iowa officials also plan on disturbing more than 30,000 of the reminders to crowds at fairs and football games. 

Texting Dangers

According to the National Highway Traffic Safety Administration, in 2008 almost 6,000 people died in auto crashes throughout the country where drivers were distracted due to cellphone use and texting.

As a personal injury lawyer who has represented children and adults who were injured in auto crashes that have been caused by drivers distracted by texts, I think the Iowa anti-texting program is a great idea to help improve safety on our roads. Hopefully this program will be successful and implemented in other states.

Further, because use of cell phones and Blackberry's has become so common, I think it is important to flush out if the driver of the vehicle that caused the accident was using their device immediately prior or at the time of the incident. 

I usually make inquiries as to cell phone use during the discovery phase of the lawsuit in the form of an interrogatory question or at deposition.  As a last resort, or as a method of fact checking, I will also issue subpoenas to the driver's cellular provider to look at the time of ingoing and outcoming calls.

Related:

Illinois Public Act 096-0130 (PDF)

Insurance Institute For Highway Safety- Compilation Of Cell Phone Laws By State

Assessing the awareness of performance decrements in distracted drivers.pdf Accident Analysis and Prevention 40 (2008) 675–682, William J. Horrey, Mary F. Lesch, Angela Garabet

Police Try to Thumb a Ride With Anti-Texting Message by Joe Barrett, Wall Street Journal, October 19, 2010

Illinois is taking steps to protect pedestrians with a new bill (House Bill 43) that would require cars to come to a complete stop when a pedestrian is in a crosswalk, regardless of whether or not there is a traffic signal or stop sign.  Governor Quinn now has 60 days to sign the bill in order to make it law.     

• Pedestrian related incidents 

• Motor vehicle crashes 

• Drowning 

• Suffocation 

• Fires / burns

Last week I met with the family of a seven-year-old boy who received horrific orthopedic injuries (fractured tibia and fibula with de-gloving of his leg) he sustained due to being hit by a car as he was crossing the street with friends. 

The driver completely ignored a traffic signal before hitting the boy and racing away before their plates could be written down.

Several months after the incident-- and several leg and arm surgeries later, the boy’s parents called to tell me about the incident and inquired as to what if anything they could do for their son who has incurred significant medical bills and will need extensive future medical attention.

While the lack of a responsible party in a situation like the one above may appear problematic from a tort-recovery standpoint, this is exactly the type of situation that uninsured motorist covered was intended for.

Unbeknownst to most drivers, they likely have un-insured (UM) and under-insured motorist (UIM) coverage as part of their existing automobile insurance.  Like all types of insurance coverage, UM / UIM is something most of us don’t want to think about—yet when a situation arises we are grateful we have it.

Un-Insured Motorist (UM) Coverage:

Exactly like it sounds, un-insured motorist coverage covers injuries and property damage sustained in auto accidents in which the at-fault driver did not have any insurance coverage for the incident.  Consequently, the damages from the incident can be recovered pursuant to the un-insured motorist coverage in the auto policy.

Many uninsured motorist cases can be resolved relatively quickly by negotiating with the insurance company.  However, when an agreement between the injured party and the insurance carrier cannot be achieved, most policies allow the injured person to file a demand for arbitration or a direct action against the insurance carrier directly.

The language of the policy and the jurisdiction where the claim is being pursued with dictate the procedure for resolving disputed UM claims.  Nonetheless, most policies require confirmation from the un-insured driver directly or the secretary of state that there was no insurance coverage before they will consider resolving the UM claim.

Under-Insured Motorist (UIM) Coverage:

Some states, such as Illinois, have passed legislation requiring drivers to carry a minimum amount of automobile insurance.  In theory, the minimum amounts of coverage would adequately compensate most automobile related injuries and property damage.

However, as you can imagine, legislating to cover the bulk of injuries and damages, will not cover most severe injuries where people have sustained truly life-altering damages.

When the responsible driver does not have adequate insurance to cover the damages of the person(s) injured in the accident, the injured party can pursue the balance of their damages directly from their insurance carrier under their under-insured motorist coverage.

The assumption with under-insured motorist coverage is that the amount of coverage exceeds that of the tort-feasor or person who caused the accident. 

For example, if the responsible party carries $100,000 in liability coverage and the injured party has $100,000 in UIM coverage, they would not be entitled to make a UIM claim since the coverage is equal.  However, in the same situation, the injured party carried $1,000,000 in UIM coverage, they could potentially recover $900,000 in UIM benefits.

Obviously, in order to recover UIM benefits, the injured party has the burden of establishing their damages similar to the way damages must be established in a personal injury lawsuit against the driver.

What types of accidents are covered by under-insured motorist or un-insured motorist insurance?

Most uninsured and under-insured motorist policies cover both the insured driver(s) and members of their household who have been involved in various types of auto-related accidents including:

• Pedestrian accidents
• Bicycle accidents
• Hit-and-run accidents
• Injuries sustained while a passenger on a commercial vehicle
• Wrongful death
• Children who are passengers in cars-- even those who are driven by their parents

The elements of recoverable damages under UM / UIM policies are also similar to those afforded an injured party in a traditional lawsuit:

• Past and future medical expenses
• Lost wages
• Pain and suffering
• Disfigurement

Certainly, when faced with a situation where a child or other member of your family has sustained severe injuries, it is important to evaluate all avenues for potential recovery including: un-insured and under-insured motorist coverage.  I strongly suggest you review your automobile insurance policy very carefully with a lawyer who has experience with these claims before speaking to the insurance company.

Related: 

Hit-and-Run Forum

Fatal Pedestrian Collisions Driver Negligence (pdf) by SUSAN P. BAKER, MPH, LEON S. ROBERTSON, PhD and BRIAN O'NEILL, BSc

4-Year-Old Dies In Hit-And-Run Crash KCTV.com, September 20, 2010