Colorado Law Blog

Last week the Consumer Product Safety Commission proposed new factors for determining when manufacturers have to report defective products to the agency.

The proposal would allow companies to weigh factors such as whether they complied with voluntary and mandatory safety standards and whether the product poses less risk because it is old and not being sold or used much anymore. The home-appliance and toy industries have been lobbying the CPSC since 2004 to spell out just which factors count in determining whether a product is unsafe and a candidate for a recall. Consumer groups charge that the substantive changes were proposed by industry groups and with the intent to shift blame for mishaps to consumers from manufacturers.

Changes Made In Response to Industry Requests

Companies are required to report to the agency immediately if they suspect a problem with a product, particularly if it poses the risk of serious injury or death. Most recalls are "voluntary" agreements, but the agency sometimes presses companies to make recalls and has the last word when it comes to imposing penalties.

Last year, the CPSC was responsible for some 400 recalls. About 27 percent of them were toy-related, and 7.5 percent were appliance recalls.

The agency assessed its largest civil penalty last year -- $4 million against Graco Children's Products Inc. for failing to report safety incidents, injuries and a fatality related to its products. The agency also has a new program for retailers to report defective products.

The proposal will allow factoring in the nature of the risk of injury, how the product will be used, who is exposed to the risk, case law and the commission's judgment. The proposal adds four criteria: the obviousness of the risk, the adequacy of warnings from the manufacturer and instructions, consumer misuse of the product, and whether misuse was predictable. The proposal also revises how the CPSC would calculate whether a product is defective, an important threshold determination that can lead to a recall or fines for late reporting.

Consumer Groups Fear Sfaety Compromised

Donald Mays , Consumers Union senior director of product safety, said standards and warnings often don't offer adequate protection to consumers. The consumer federation and Consumers Union said they will oppose finalizing the proposal. Comments are due June 26.

Posted by Linda Chalat at 2:54 PM | Permalink | Comments (0) | TrackBacks (0)

The Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA, Title II) require the Department of Health and Human Services (HHS) to establish national standards for electronic health care transactions and national identifiers for providers, health plans, and employers. It also addresses the security and privacy of health data. Adopting these standards will improve the efficiency and effectiveness of the nation's health care system by encouraging the widespread use of electronic data interchange in health care.

What does it mean?

HIPAA is a set of rules to be followed by doctors, hospitals and other health care providers. HIPAA took effect on April 14, 2003. HIPAA helps ensure that all medical records, medical billing, and patient accounts meet certain consistent standards with regard to documentation, handling and privacy.

In addition, HIPAA requires that all patients be able access their own medical records, correct errors or omissions, and be informed how personal information is shared used. Other provisions involve notification of privacy procedures to the patient. HIPAA provisions that have led in many cases to extensive overhauling with regard to medical records and billing systems.

What are the main objectives of HIPAA?

1. Accountability. HIPAA hopefully will reduce waste, fraud, and abuse. New penalties will be imposed.

2. Insurance Reform. HIPAA offers continuity and portability of health insurance, as well as providing limits on pre-existing provisions.

3. Administrative simplification. HIPAA mandates standards on electronic data transactions in a confidential and secure manner.

Who must comply with HIPAA?

Any healthcare provider that electronically stores, processes or transmits medical records, medical claims, remittances, or certifications must comply with HIPAA regulations. HIPAA does not require a practice to purchase a computer-based system as it applies only to electronic medical transactions.

What is the difference between HIPAA-ready and HIPPA-compliant?

HIPAA-ready typically refers to software products used by healthcare providers, insurance companies and clearing houses that comply with HIPAA guidelines. HIPAA-compliant refers to the doctors, hospitals and insurance companies themselves that are in compliance with HIPAA regulations.

Does HIPAA specify how compliance is to be achieved?
No. HIPAA regulations give health-care organizations the decision to decide how they will implement HIPAA compliance, and are technology and software-neutral.

Posted by Linda Chalat at 8:29 PM | Permalink | Comments (0) | TrackBacks (0)

The natural beauty of Colorado entices many to enjoy the great outdoors on bicycles. But sadly, Colorado motorists are often ignorant of the rights enjoyed by cyclists in our state, or choose to ignore those rights and drive so aggressively as to cause serious accidents. When bicyclists are hit on our roads, severe or fatal injuries are often the result.

Safety Tips for Avoiding Injury

• ALWAYS WEAR A PROPERLY FITTED HELMET IN GOOD REPAIR!!!
• ALWAYS WEAR SHATTER PROOF EYE PROTECTION.
• CARRY YOUR CELL PHONE, I.D., AND YOUR INSURANCE CARD
• NEVER RIDE AT NIGHT WITHOUT PROPER LIGHTS AND REFLECTORS
• WEAR A REAR VIEW MIRROR WHEN RIDING IN HEAVY TRAFFIC
KNOW THE BASICS OF BICYCLE REPAIR (putting a chain back on sprocket, changing a flat, tightening the seat post fittings, knowing how to adjust brakes, etc.)

What Are Your Rights If Hit

Colorado has a particular statute relating to the duty of care of bicyclists when on public roadways. The relevant portions of the statute are set out below. The most critical elements are that bicyclists have the same rights and duties as motorized vehicles. This means that bicyclists must stop at red lights, stop signs, and must turn from the right to right but may turn either from the left, to the left, or from the far right to the left, after yielding to traffic. Hand signals, etc., must be used, bicyclists must ride single file, and on the right side, as far to the right as is safely practicable.

The Colorado statute provides:
§ 42-4-1412. Operation of bicycles and other human-powered vehicles
(1) Every person riding a bicycle shall have all of the rights and duties applicable to the driver of any other vehicle under this article, except as to special regulations in this article and except as to those provisions which by their nature can have no application. Said riders shall comply with the rules set forth in this section and section 42-4-221, and, when using streets and highways within incorporated cities and towns, shall be subject to local ordinances regulating the operation of bicycles as provided in section 42-4-111.
. . .

(3) No bicycle shall be used to carry more persons at one time than the number for which it is designed or equipped.
(4) No person riding upon any bicycle shall attach the same or himself or herself to any motor vehicle upon a roadway.
(5) Any person riding a bicycle shall ride in the right-hand lane. When being overtaken by another vehicle, such person shall ride as close to the right-hand side as practicable. Where a paved shoulder suitable for bicycle riding is present, persons operating bicycles shall ride on the paved shoulder. These provisions shall apply, except under any of the following situations:

(a) When overtaking and passing another bicycle or vehicle proceeding in the same direction.
(b) When preparing for a left turn at an intersection or into a private road or driveway;
(c) When reasonably necessary to avoid hazardous conditions, including, but not limited to, fixed or moving objects, parked or moving vehicles, pedestrians, animals, or surface hazards.

(6)(a) Persons operating bicycles on roadways shall ride single file; except that riding no more than two abreast is permitted in the following circumstances:
(I) When riding two abreast will not impede the normal and reasonable movement of traffic; or
(II) When riding on paths or parts of roadways set aside for the exclusive use of bicycles.

(b) Persons riding two abreast shall ride within a single lane.

(7) A person operating a bicycle shall keep at least one hand on the handlebars at all times.

(8)(a) A person riding a bicycle intending to turn left shall follow a course described in sections 42-4-901(1), 42-4-903, and 42-4-1007 or may make a left turn in the manner prescribed in paragraph (b) of this subsection (8).
(b) A person riding a bicycle intending to turn left shall approach the turn as closely as practicable to the right-hand curb or edge of the roadway. After proceeding across the intersecting roadway to the far corner of the curb or intersection of the roadway edges, the bicyclist shall stop, as much as practicable, out of the way of traffic. After stopping, the bicyclist shall yield to any traffic proceeding in either direction along the roadway that the bicyclist had been using. After yielding and complying with any official traffic control device or police officer regulating traffic on the highway along which the bicyclist intends to proceed, the bicyclist may proceed in the new direction.
(c) Notwithstanding the provisions of paragraphs (a) and (b) of this subsection (8), the transportation commission and local authorities in their respective jurisdictions may cause official traffic control devices to be placed on roadways and thereby require and direct that a specific course be traveled.

(9)(a) Except as otherwise provided in this subsection (9), every person riding a bicycle shall signal the intention to turn or stop in accordance with the provisions of section 42-4-903; except that a person riding a bicycle may signal a right turn with the right arm extended horizontally.

(b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the bicycle before turning and shall be given while the bicycle is stopped waiting to turn. A signal by hand and arm need not be given continuously if the hand is needed in the control or operation of the bicycle.

(10)(a) A person riding a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian. A person riding a bicycle in a crosswalk shall do so in a manner that is safe for pedestrians.

(b) A person shall not ride a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk where such use of bicycles is prohibited by official traffic control devices or local ordinances. A person riding a bicycle shall dismount before entering any crosswalk where required by official traffic control devices or local ordinances.

(c) A person riding or walking a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall have all the rights and duties applicable to a pedestrian under the same circumstances, including, but not limited to, the rights and duties granted and required by section 42-4-802.

(11)(a) A person may park a bicycle on a sidewalk unless prohibited or restricted by an official traffic control device or local ordinance.

(b) A bicycle parked on a sidewalk shall not impede the normal and reasonable movement of pedestrian or other traffic.

(c) A bicycle may be parked on the road at any angle to the curb or edge of the road at any location where parking is allowed.

(d) A bicycle may be parked on the road abreast of another bicycle or bicycles near the side of the road or any location where parking is allowed in such a manner as does not impede the normal and reasonable movement of traffic.

(e) In all other respects, bicycles parked anywhere on a highway shall conform to the provisions of part 12 of this article regulating the parking of vehicles.

(12)(b) Any person riding a bicycle who violates any provision of this article other than this section which is applicable to such a vehicle and for which a penalty is specified shall be subject to the same specified penalty as any other vehicle; except that > section 42‑2‑127 shall not apply.

(13) Upon request, the law enforcement agency having jurisdiction shall complete a report concerning an injury or death incident that involves a bicycle on the roadways of the state, even if such accident does not involve a motor vehicle.

CRSA Sec. 42-4-1412, Operation of bicycles and other human-powered vehicles

Posted by Linda Chalat at 8:19 PM | Permalink | Comments (0) | TrackBacks (0)

Many states, including Colorado, have recently adopted laws which limit the amount victims in personal injury lawsuits may collect. These limits are called “caps on damages” or simply “caps” because they cap the amount of money which may be awarded. For different circumstances, different caps may apply. Most frequently, these caps apply to the non-economic damages, the “pain and suffering” damages. The damages caps commonly encountered when pursuing a claim arising from a Colorado truck accident are discussed below.

Caps on Personal Injury Damages

The harm caused by a personal injury is called “damages” - the damage done by the accident or conduct. Damages are often categorized as either economic, such as loss wages or medical expense, and non-economic, traditionally pain and suffering damages. The non-economic damages, such as physical and mental pain, and loss of enjoyment of life, cannot be proved with any clear specificity, but are awarded based on the fact that they normally follow from an accident or injury. They are also referred to as “non-pecuniary,” meaning not consisting of or measured in money.

Wrongful Death Noneconomic Loss

A wrongful death claim arises when the bad conduct of a party causes the death of another. Colorado has placed caps on the non-pecuniary damages incurred in a wrongful death case. The statutory limitation includes compensation for grief, loss of companionship, pain and suffering, and emotional stress. The caps for all claimants, for all of these element of a wrongful death case, excepting in the case of a “felonious killing,” is $341,250.00. This figure includes all adjustments for inflation pursuant to C.R.S. 13-21-203(1).

Different damage caps are applicable in wrongful death cases of medical malpractice, or cases against Colorado state or local governmental agencies, municipalities, cities, or other subdivisions of government.

Personal Injury Not Resulting in Death

Generally, a person seriously injured in a trucking accident may claim, without limitation by caps, all of their economic damages and compensation for any disfigurement or physical impairment. However, claims for pain and suffering, inconvenience, emotional stress, and impairment of the quality of life are capped by law at $366,250. Colorado Revised Statutes, §13-21-102.5. In certain special cases where the court finds justification by clear and convincing evidence for the jury award, the court may approve an award for these non-economic losses above the $366,250 cap, but never to exceed $732,500.00. In cases where more than one wrong-doer is responsible, the noneconomic damages cap applies to each award, rather than to each action; in this way, jury's apportionment of fault percentages is retained while at the same time any award in excess of the statutory cap is limited. Niemet v. General Elec. Co., 843 P.2d 87 (Colo. App.1992) certiorari granted, affirmed 866 P.2d 1361.

Exemplary Damages

Contrary to popular myth, punitive damages, also known as “exemplary” damages, are not routinely awarded, and not collected in dramatically huge amounts. In Colorado, to collect exemplary damages one must prove “fraud, malice, or willful and wanton conduct.” And then, “the award for exemplary damages cannot exceed the amount of the actual damages awarded to the injured party.”C.R.S. § 13-21-102

Before a plaintiff may seek exemplary damages, a lawsuit must be filed and discovery about the incident pursued to establish a basis for the claim. Typically, awards of exemplary damages are not covered by a driver’s insurance policy and many accident cases, the wrongful conduct needs to be attributed to a large company, not simply the driver, in order for the claim to be viable. This conduct is often only apparent after careful investigative work by your attorney, one more reason why you need an experienced lawyer representing you.

Posted by Linda Chalat at 8:15 PM | Permalink | Comments (0) | TrackBacks (0)