Colorado Law Blog

With fewer and fewer public places to light up, don’t you wonder about those poor souls still huddled outside in frigid weather, dragging on a cigarette? Well, if they haven’t kicked the habit yet, Big Tobacco is making it more difficult to do just that, according to a study just released by Harvard.

Researchers at the Harvard School of Public Health say they have confirmed a study by the state of Massachusetts that found nicotine levels in cigarettes increased from 1997 until 2005. Based on data submitted to the Massachusetts Department of Public Health by cigarette manufacturers, the analyses found that increases in smoke nicotine yield per cigarette averaged 1.6 percent each year, for a total of about 11 percent over a seven-year period.

The Massachusetts Health Department released its study last October. The study examined nicotine levels in more than 100 brands over a six-year period. It demonstrated a steady rise in the amount of nicotine delivered to smokers.

The research indicates that the increase found in Harvard’s study is due primarily to an increase in nicotine in the raw tobacco used in the cigarettes. But it is not clear whether that increase is the result of the raw tobacco being used or more nicotine in the reconstituted tobacco.

The findings call into question whether the tobacco industry is acting in accord with the 1998 agreement with states that it would launch a campaign to reduce smoking by young people. The higher nicotine levels make it easier to get hooked on cigarettes and harder to quit, thus improving the likelihood that a casual teen smoker will become addicted.

Cigarette manufacturers disputed the findings of both studies, claiming that the data simply reflect random variations in cigarette nicotine yields. Philip Morris USA argued that data reported to the state by the company shows nicotine yields for the Marlboro cigarettes were the same in 2006 and 1997.

Massachusetts is one of three states to require tobacco companies to submit information about nicotine testing according to its specifications and the only state with data going back to 1997. Senator Edward M. Kennedy, the Massachusetts Democrat who is now chairman of the Senate Health, Education, Labor and Pensions Committee, promised to reintroduce within weeks a bill that would allow the Food and Drug Administration to regulate cigarettes.

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Everyone knows that the hotel industry battles to keep the towels from leaving with the guests. But what about hospitals giving away towels without charge?

Bonnie Valle had surgery for emphysema at the Cleveland Clinic in 1995. Her daughter, Jeanne Clark, claimed that her mother always felt that something was left in her left side during the procedure, that she felt something “move” and complained about the discomfort. Sadly, Mrs. Valle died in 2002 at age 60. She donated her body to the Northeastern Ohio Universities College of Medicine in Rootstown, where a dissection revealed a green surgical cloth the size of a large hand towel in her left lung.

Her family sued following her death, claiming medical negligence, that because Valle's doctors never found the towel, she suffered serious complications, incurred medical expenses and ultimately died. The attorneys for The Cleveland Clinic disagreed. The defense argued that the towel had no effect on Mrs. Valle's health.

In a letter to the medical school, Dr. Jeffrey Miller, Mrs. Valle’s Canton-based doctor, wrote that he did not think the towel affected the length or quality of Valle's life. In incredibly insensitive commentary, even for a physician, Miller wrote, "She lived seven years ... which is certainly as well as one would have expected her to survive given her severe emphysema and poor pulmonary function and overall condition."

Last Thursday, after two weeks of trial, the trial judge dismissed claims against Jeffrey Miller. At that time, The Cleveland Clinic settled with Bonnie Valle’s family. No terms of the confidential agreement were disclosed.

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Just before the end of the last session, the 109th Congress passed legislation to lift the longstanding ban against veterans being able to hire lawyers to appeal their benefits cases. The change was advocated by both the Governmental Affairs Office and the American Bar Association.

GAO Director Robert D. Evans wrote in a letter to House members in late September, “Veterans’ cases have become increasingly complex and the Department [of Veterans Affairs] itself has numerous staff lawyers to assist it in the administration of these cases. ... [U]ltimately, the decision of whether to hire a lawyer in a particular case should reside with the veterans whose rights are at stake and not be precluded by the government.”

The ABA has supported an end to the ban, adopting policy on the issue during its Midyear Meeting in February 2005. The ABA has pledged to help address the VA backlog by offering training to lawyers, as it has done in other areas such as Social Security claims, and to work closely with veterans’ organizations.

While the congressional language is not a complete repeal of the prohibition, the new law does allow veterans to hire counsel following their first adverse ruling. The Secretary of Veterans Affairs still needs to promulgate further regulations on the definition of who is a qualified agent to represent veterans and lawyers will be required to file fee assignments with the secretary. Finally, the repeal is something of a test run, the secretary is to report back to Congress in three and one-half years on whether to maintain the repeal or reinstate the restrictions. Let’s hope the political winds are still blowing in favor of veterans’ rights in 2010.

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Contrary to the oft repeated mantra that jury verdicts continue to escalate out of control, the nation's largest verdicts to individual plaintiffs have fallen dramatically for the second consecutive year. For the top ten jury verdicts awarded to individual plaintiffs, this past year's total is one third of the total for the previous year, which was half the total of the year before.

While this year’s top verdict, an award of $216 million , is a significant amount of money – it is the smallest top since 1993. The median verdict was less than half of the median the previous year.

Two years ago, all 10 verdicts compiled by Lawyers USA were for more than $100 million (and two were for more than a billion.) However, this past year only three verdicts of the top ten were above $100 million. The total amount awarded in the top ten verdicts was $815 million, compared to $2.9 billion in 2005 and $5.2 billion in 2004.

It’s not because the world is becoming a safer place. The verdicts may simply reflect the recent caps placed on specific types of damages, such as on non-economic damages, and on certain types of claims, such as medical malpractice. The top verdict for 2006 involved a man who died after an unlicensed emergency room physician's assistant misdiagnosed his stroke as a sinus infection. Although the verdict was one of the largest malpractice verdicts in Florida history, the plaintiff's attorney, David Dickey, predicts that it is likely to be the last of its kind because of recent caps.

For many people with legitimate medical malpractice claims, when caps are in place, lawyers can no longer afford to take these cases on a contingency basis because of the extensive amount of time and money required to prepare the case. According to the Texas Alliance for Patient Access, med-mal filings in the state's four largest cities dropped by 50 percent this past year following the enactment of extensive damages caps.

Punitive damages award for the Top Ten verdicts this past year was one-sixth of the total the year before. Punitives also account for a much smaller portion of the overall awards this past year - 38 percent of the aggregate award, compared to 70 percent over the previous nine years.

But even with diminished numbers of med mal cases, Texas had the most Top Ten verdicts (3), followed by Florida and California (2 each). For the second year in a row, New York had no Top Ten verdicts. Texas (22) surpassed New York (21) as the state with the most Top Ten verdicts over the last 12 years. They were followed closely by California (19) and more distantly by Florida (13). It is interesting to note that New York led all states for the most Top Ten verdicts (21) during the first 12 years that Lawyers USA compiled the list, and had at least one verdict on the list for 11 consecutive years until 2005.

For information on Colorado caps for medical malpractice awards, see Limits On Med Mal Fees Barrier to Justice.

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Last winter a record 58.9 million skiers and snowboarders hit the nation’s slopes. This season, Colorado resorts are on a pace to break last winter's record of 12.53 million skier visits, with 6.74 percent more in the first part of the season than the same period last year, the industry recently reported. The resorts had nearly 3.3 million skier visits from October through December 2006, up 207,533 when compared to the same period in 2005.

While the mountains have less snow than last year's near-record, TV coverage of snow-covered Denver has well-publicized the great skiing conditions. And Colorado resorts have benefited from the lack of snow suffered in the East and most of Europe.

Colorado's destination resorts, including Aspen, Steamboat Springs, Telluride and Crested Butte, have had the biggest increase in skier visits, 11.9 percent over the same period of 2005. Those resorts are farther from Denver's airport and attract vacation visitors, especially Europeans.

More skiers means longer lift lines – a frustration which many resorts are trying to address by improving area lifts. Six Colorado ski resorts installed new lifts for this season. Most renovations include faster lifts that transport more people per chair – thus resulting in a much higher concentration of skiers and boarders on the slopes.

Ski Defensively or Suffer Consequences

Last year, seven people died of injuries at Colorado ski areas and Colorado has already had its first fatality of the new season. The most common type of ski accident is a collision, either with a fellow skier or with an inanimate object, and traumatic head injuries are frequently the cause of death.

Anyone who has been on the slopes recently has noticed not only the increase in the number of skiers, but also the dramatic increase in the number of helmeted skiers.

In an authoritative pediatric study, "Trends in Pediatric Skier and Snowboarder Injuries," (TCH 2004) Lori A. McBride, MD, Ken R. Winston, MD, and Robert E. Breeze, MD reported on 215 patients, including skiers and snowboarders. Head injuries comprised 59 of the 215 patients, or 27.4%. There were three deaths in the series. All three were unhelmeted female skiers who struck a fixed object. No severe head injuries were reported among the helmeted children admitted following a skiing/snowboarding accident. Other studies support these findings, and even Colorado Ski Country USA, the trade organization representing 26 Colorado ski resorts, recommends wearing a helmet.

So, the first step is to wear a helmet for protection. Then pay attention to your surroundings. This means no music through earphones and no alcohol or drugs which inhibit your ability to react. Look around you, note the line of travel and speed of skiers around you.

When skiers collide, Colorado law presumes that the uphill skier is at fault for the accident, because the overtaking skier has the primary duty to avoid the skier below him or her. Thus, one of the key issues in any collision case is who was the uphill or overtaking skier. The nature of the injury often gives substantial clues as to how the accident occurred, the speed at which the skiers were skiing, and the relative angles to each other. All skiers are under a general duty to ski cautiously, within their ability and to maintain control. The Colorado Ski Safety Statute provides that skiers are obliged to maintain a lookout. If one fails to ski in control or to maintain a lookout, the skier is negligent and responsible for the injuries and damages caused.

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Two backcountry avalanche accidents last month, including one resulting in a fatality, and one massive slide which closed a Colorado highway, are early-season reminders of the threat of high country avalanches. And with more snow coming, backcountry enthusiasts need to tread, or slide as the case may be, cautiously. For those enjoying Colorado’s beautiful snow-covered Rockies, a visit to CAIC before visiting the out of bounds slopes is essential.

AVALANCHES CAN ONLY OCCUR ON SLOPES STEEPER THAN 25 degrees

Most slab avalanches occur on slopes with starting zone angles between about 30 and 45 degrees, but slabs occasionally occur on slopes less than 30 degrees. Slopes steeper than about 50 to 60 degrees tend to sluff snow constantly, and slopes about 25 degrees or less are generally not steep enough. Skiing and snowboarding are most attractive on slopes in the 30-40 degree range, the same slopes most prone to avalanches

And since all of the snow is connected, you can be traveling on a flat slope or snow covered road and if the snowpack is unstable enough, even though you are not on a steep slope, you can trigger a slide on a steeper slope above you. As demonstrated by the massive slide which roared down Stanley Mountain on January 6th and pushed two cars off U.S 40 near Berthoud Pass - injuring at least eight people and temporarily closing the main route to the Winter Park ski resort. It is critical to know what is above you as you travel.

The better you are at determining slope angle and recognizing hazardous terrain, the better choices you can make when traveling in avalanche country. Nearly all avalanches that involve people are triggered by the victims themselves or a member of their party.

AVALANCHES CAN ONLY OCCUR WHEN THE SNOWPACK IS UNSTABLE

The snowpack accumulates layer by layer throughout the winter with each new precipitation, temperature and wind event. There are both strong and weak layers within a snowpack. Strong layers tend to be denser layers comprised of small round snow grains that are packed closely together and are well bonded to each other or cohesive. Weak layers tend to be less dense layers that are comprised of poorly bonded or cohesionless grains, often cold-temperature snowfalls. These layers often appear loose or "sugary". Because weak layers prevent strong layers from bonding with one another, it is important for the backcountry traveler to know the relationship of these layers.

Dry slab avalanches typically travel 60-80 miles per hour. They reach these speeds within about 5 seconds after they fracture. Wet avalanches usually travel much slower, around 20 miles per hour.

WHAT KIND OF WEATHER PRODUCES AVALANCHES?

Wind is the most common cause of avalanches. Wind can deposit snow 10 times faster than snow falling from storms. Wind erodes snow from the upwind side of obstacles and deposits snow on the downwind (lee sides), a phenomenon called "wind loading". The added weight from snowstorms also causes avalanches. If the weight of new snow is added faster than the buried weak-layer can adjust to its load, then it fractures and forms an avalanche. Strong sun or warm temperatures can also cause melting of the snow and creates wet avalanches. Wet avalanches occur because of a decrease in strength of the buried weak layer because water dissolves the bonds between the snow grains. But wind, snow or rapid warming do not always produce avalanches. It depends on the condition of the pre-existing snow and the conditions during the storm. With very stable snow pre-existing snow, even heavy, new snow with wind can bond well and be perfectly safe in the right conditions.

Interestingly, noise does NOT trigger avalanches. It's just one of those myths that refuses to die. Noise is simply not enough force unless on the magnitude of an extremely loud noise such as an explosive going off at close range. Even sonic booms or low flying helicopters trigger avalanches only in extremely unstable conditions in which natural avalanches would likely occur.

Avalanche victims are almost exclusively backcountry recreationists --snowmobilers, climbers, snowboarders, snowshoers, skiers and hikers. Snowmobilers lead the list with twice the number of fatalities as any other activity.

WHAT TO DO IF CAUGHT IN AN AVALANCHE?

Escape the slab!
Skiers and boarders technique:
If you're descending on skis or snowboard, try heading straight down hill to build up some speed, then angle off to the side off the moving slab. If you're close enough to the crown, you can try running uphill to get off the slab, or running off to the side. If you're ascending when the avalanche breaks, there's really not much you can do.

Snowmobilers technique:
If you're on a snowmobile you have the advantage of power. Grab some throttle and use your power and momentum to your advantage. If you're headed uphill, continue uphill. If you're headed across the slope, continue to the side to safe snow. If you're headed downhill, you're only hope is to try and outrun the avalanche. Remember that large avalanches travel 60-80 mph and they are difficult to outrun. Also remember that a disproportionate number of avalanche fatalities occur when one snowmobiler gets stuck on a slope and another person rides up to help them. Never go up to help a stuck buddy unless there are several other people in a safe place who can dig you out. This, of course, requires that everyone is wearing beacons and shovels and has practiced regularly with them.

If you cnanot escape:

Grab a tree. If you can't escape off the slab, try grabbing a tree. But do it very quickly because avalanches quickly pick up speed. After about 4 seconds you will be traveling at 40 miles per hour, not surprisingly, a quarter of avalanche victims die from trauma from hitting trees and rocks on the way down.

Swim. If you can't escape off the slab or grab a tree, then you need to swim hard. A human body is about three times denser than avalanche debris and it tends to sink unless it's swimming hard.

Clear an air space in front of your mouth. As the avalanche finally slows down and just before it comes to rest, try and clear an air space in front of your mouth. This helps delay the buildup of carbon dioxide in the snow around your mouth, which allows you to live longer under the snow.

Push a hand upward. Visual clues allow your friends to find you faster. You may not know which way is up, but take your best guess.

After the avalanche comes to a stop, the debris will instantly set up like concrete. So any actions you take must occur BEFORE it comes to a stop. Unless you are very near the surface or have a hand sticking up out of the snow, it's almost impossible to dig yourself out of an avalanche.

For more information, visit the U.S. Forest Service National Avlanche Center.

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The death of a disabled Viet Nam veteran the week of Christmas in a Denver house fire illustrates the danger of house fires in the winter. Though the cause of this fire is unknown, the high cost of home heating fuels and utilities have caused many Americans to search for alternate sources of home heating. Particularly in Colorado, where a stretch of artic weather has set in, the use of wood burning stoves is growing and space heaters are selling rapidly, or coming out of storage. Fireplaces are burning wood and man made logs. All these methods of heating may be acceptable. They are however, a major contributing factor in residential fires. Many of these fires can be prevented.

The following fire safety tips can help you maintain a fire safe home this winter.

KEROSENE HEATERS
• Be sure your heater is in good working condition. Inspect exhaust parts for carbon buildup . The heater should have an emergency shut off in case the heater is tipped over.
• Never use fuel burning appliances without proper room venting. Burning fuel (coal or kerosene or propane) can produce deadly fumes.
• Use ONLY the fuel recommended for the heater by the manufacturer. NEVER introduce a fuel into a unit not designed for that type fuel.
• Keep kerosene, and all other flammable liquids stored in approved metal containers, in well ventilated storage areas, outside of the house.
• NEVER fill the heater while it is operating or hot. When refueling an oil or kerosene unit, avoid overfilling. DO NOT add cold fuel to the unit for it may expand in the tank as it warms up.
• Refueling should be done outside of the home.
• Keep young children away from space heaters, especially when they are wearing night gowns or other loose clothing that can be easily ignited.

WOOD STOVES AND FIREPLACES
Wood stoves and fireplaces are a very common heat source in Colorado homes. Careful attention to safety can minimize their fire hazard. To use them safely:
• Be sure the fireplace or stove is installed properly. Woodstoves should have adequate clearance (36”) from combustible surfaces, and proper floor support and protection.
• Woodstoves should be of good quality, solid construction and design, and should be UL listed.
• Have the chimney inspected annually and cleaned if necessary, especially if it has not been used for some time.
• Do not use flammable liquids to start or accelerate any fire.
•Keep a glass or metal screen in front of the fireplace opening, to prevent embers or sparks from jumping out and unwanted material from going in.
• The stove should be burned hot twice a day for 15-30 minutes to reduce the amount of creosote buildup.
• Don’t use excessive amounts of paper to build roaring fires in fireplaces. It is possible to ignite creosote in the chimney by overbuilding the fire.
• Never burn charcoal indoors. Burning charcoal can give off lethal amounts of carbon monoxide.
• Keep flammable materials away from your fireplace mantel.
• Before you go to sleep, be sure your fireplace fire is out. NEVER close your damper with hot ashes in the fireplace. A closed damper will help the fire to heat up again and will force toxic carbon monoxide into the house.
•If synthetic logs are used, follow the directions on the package. NEVER break a synthetic log apart to quicken the fire or use more than one log at a time. They often burn unevenly, releasing higher levels of carbon monoxide.

FURNACE HEATING
It’s important that you have your furnace inspected to ensure that it is in good working condition.
• Be sure all furnace controls and emergency shutoffs are in proper working condition.
• Leave furnace repairs to qualified specialists. Do not attempt repairs yourself unless you are qualified.
• Inspect the walls and ceiling near the furnace and along the chimney line. If the wall is hot or discolored, additional pipe insulation or clearance may be required.
• Check the flue pipe and pipe seams. Are they well supported, free of holes, and cracks? Soot along or around seams may be an indicator of a leak.
• Is the chimney solid, with cracks or loose bricks? All unused flue openings should be sealed with solid masonry.

OTHER FIRE SAFETY TIPS
• Never discard hot ashes inside or near the home. Place them in a metal container outside and well away from the house.
• Never use a range or an oven as a supplemental heating device. Not only is it a safety hazard, it can be a source of potentially toxic fumes.
• If you use an electric heater, be sure not to overload the circuit. Only use extension cords which have the necessary rating to carry the amp load. TIP: Choose an extension cord the same size or larger than the appliance electrical cord.
•Avoid using electrical space heaters in bathrooms, or other areas where they may come in contact with water.
•Frozen water pipes? Never try to thaw them with a blow torch or other open flame, (otherwise the pipe could conduct the heat and ignite the wall structure inside the wall space). Use hot water or a UL labeled device such as a hand held dryer for thawing.
•If windows are used as emergency exits in your home, practice using them in the event fire should strike. Be sure that all the windows open easily. Home escape ladders are recommended.
•If there is a fire hydrant near your home you can assist the fire department by keeping the hydrant clear of snow so in the event it is needed, it can be located.

FINALLY . . . •Be sure every level of your home has a working smoke alarm, and be sure to check and clean it on a monthly basis.
•Plan and practice a home escape plan with your family. •Contact your local fire department for advice if you have a question on Home Fire Safety.

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Jack Cline is dying of leukemia that he says he got from exposure to benzene at his factory job. In most states, he would be able to sue the companies that made the benzene and let a jury decide if the company is responsible. But Alabama’s all-Republican, wildly pro-business Supreme Court threw out his case.

Alabama law requires people exposed to dangerous chemicals to wait until a “manifest” injury develops.” But when Mr. Cline’s leukemia developed years later, it was too late. Alabama’s statute of limitations requires that suits be brought within two years of exposure. In a ruling that defies any definition of justice, the court held that there was never a valid time for Mr. Cline to sue. If he had sued when he was exposed to the benzene, it would have been too early waiting for the diagnosis of leukemia was too late.

In the face of such harsh and absurd reasoning, Mr. Cline’s attorney, Mr. Palmer, started a statewide campaign, letters to the editors of all major papers and a petition drive, prompting the court to take the extraordinary move of reopening the case. New arguments were heard last spring.

Mr. Palmer argued that preventing him from ever suing denied him his rights under the Alabama Constitution to seek a legal remedy for his injuries.

Mr. Palmer was encouraged when the Alabama Supreme Court reopened the case. The court scheduled oral arguments for a special public session on a law school campus, an indication it considered the case particularly significant. Legal analysts thought the arguments went well. “Questions asked by several justices indicated they were troubled by the legal Catch-22,” The Birmingham News reported.

The court ruled this month. It affirmed the dismissal of Mr. Cline’s case by a 5-to-4 vote. If Mr. Cline wanted to challenge the unfairness of the rules, the court held, he would have to take it up with the State Legislature — a body described by a recent The New York Times op-ed piece as “every bit as pro-business as the Alabama Supreme Court.”

However, Mr. Palmer plans to ask the United States Supreme Court to hear the case on the constitutionality argument. Perhaps in the nation’s greatest Hall of Justice, an individual may find redress from the ruling that there was never a time when he would have had the right to file his claim.

To read the entire New York Times op-ed piece, which presents a strong argument against current pro-business “tort reform” measures, read “They Say We Have Too Many Lawsuits? Tell It to Jack Cline.”

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USA TODAY is promoting a “patient safety page” which is intended to help readers find patient advocacy advice when they suspect medical malpractice has occurred. Experts estimate that medical errors claim about 98,000 Americans a year, more than 250 lives each day.

The new feature has two goals - to allow readers (patients, surviving family members and care providers) to share stories with the newspaper that might improve health care.

The second goal is to provide readers with resources, such as medical and government agencies that investigate complaints about inadequate health care. Such agencies, which sometimes have a duty to investigate every claim, frequently use doctors, nurses and other professionals to review cases looking for public health and safety issues.

When medical malpractice is suspected, you should consider all of your available options, including discussing the problem with the health care provider, filing a formal grievance, consulting with an experienced med mal lawyer and making the issue public.

To submit a medical story to USA TODAY, visit click here. Information submitted will be reviewed by USA TODAY reporters and editors. Caution is advised, because cases of interest to USA TODAY will be verified by reporters, which may require patients to make public private medical records while allowing their caregivers to speak publicly about the treatment provided. Reporters may ask for copies of medical records, death certificates, autopsy reports, court and investigative documents among others.

USA TODAY provides the following patient-safety resources:

• State medical boards investigate complaints about doctors. Here is a list maintained by the American Medical Association:

• The Joint Commission on Accreditation of Health Care Organizations investigates complaints about hospitals, surgical centers, assisted living homes, laboratories and other facilities it inspects and accredits. •The federal government's Agency for Health Care Research and Quality investigates cases "that illustrate key issues in patient safety and quality" by those who register at the agency's Morbidity and Mortality Rounds on the Web portal. http://www.webmm.ahrq.gov/

•The Food and Drug Administration investigates reports from consumers and health professionals about serious adverse events, potential and actual product use errors, as well as product quality problems associated with the use of drugs, medical devices, nutritional products and cosmetics at the agency's MedWatch reporting system.

Before contacting any agency, have a clear idea of your goals, whether you you are seeking more information, file a grievance or determine your legal rights. If you have concerns, obtain a copy of the complete medical file. Complete and well-organized records are essential for supporting any claims or complaints If you have suffered the tragedy of losing a loved one, you may also require copies of the death certificate and autopsy reports. Federal law, referred to as HIPPA, gives every patient the right to obtain a copy of their medical records. Visit Your Health Information Privacy Rights http://www.hhs.gov/ocr/hipaa/consumer_rights.pdf
The Center on Medical Rights and Privacy at Georgetown University's Health Policy Institute maintains a list of state consumer guides that help patients understand their rights under state medical records laws.

In Colorado you have the right to:

See and get a copy of your medical record -Your health care provider usually must let you see your medical record or give you a copy of it within a reasonable time after they receive your request. Doctors generally must let you see or get a copy of your medical record within 30 days, and hospitals within 10 days. This right is called the right to access your medical record. Your health care provider is allowed to charge you a fee for copying your record. They can also charge you the actual cost for postage if you have the copy mailed to you.

Have information added to your medical record to make it more complete or accurate - This right is called the right to amend your record. In certain cases, your provider can deny your request to amend your record. If this happens, you have the right to add your own short statement explaining your position to your medical record.

File a complaint - You have the right to file a complaint with the Office for Civil Rights, U.S. Department of Health and Human Services if you believe your health care provider has violated your right to see, get a copy of, or amend your medical record. You can also file a complaint with the state agency that regulates your health care provider.

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Imagine a Capitol Hill staffer having a steamy affair with a congressional aide, probably not such an unusual occurrence. But then the aide posts lurid details of the intimate aspects of the relationship on her personal blog. Staffer boyfriend is embarrassed and outraged!

So what does he do? He sues his now ex-girlfriend, making the whole matter public in a federal lawsuit.

Robert Steinbuch discovered his girlfriend Jessica Cutler, then aide to Sen. Mike DeWine, R-Ohio, had discussed intimate details about their sex life in her online diary, the “Washingtonienne” Web log. Cutler says she created the blog to keep a few friends up to date on her social life, but Ana Marie Cox, then the editor of the popular gossip Web site Wonkette.com, linked to Cutler’s blog, and for a short time the story was the hot topic at Washington dinner parties.

But sex scandals come and go in the Nation’s Capitol, and soon the story became old news. Steinbuch accepted a teaching job in Arkansas, and Jessica Cutler was fired. She then moved back to New York, wrote a novel based on the scandal, posed nude for Playboy and started a new Web site, where she solicits donations “for slutty clothes and drugs.”

But rather than leaving the past behind, Steinbuch has literally made a federal case out of the incident. Steinbuch claims he was publicly humiliated and is seeking more than $20 million in damages. He currently teaches at the University of Arkansas at Little Rock Law School, and he asserts that the students in his Legal Ethics class frequently come across stories about the sex blog. He claims he wants the trial to restore his good name.

The Washingtonienne lawsuit is a perfect example of the need to contemplate what a lawsuit can and cannot accomplish – even U.S. District Judge Paul Friedman is mystified, observing “I don’t know why we’re here in federal court to begin with.” Friedman told attorneys for both sides in April, “I don’t know why this guy thought it was smart to file a lawsuit and lay out all of his private, intimate details.”

The trial promises to contain provocative testimony about spanking, handcuffs and prostitution. To win, Steinbuch will have to prove that the details of their sexual relationship were private and publishing them was highly offensive. The attorney for Cutler argues that she never intended to make the blog public, that it was intended for a small personal audience. The rebuttal of course is that placing anything on the Internet is the antithesis of “private” distribution, any website has millions of potential readers.

The Washingtonienne case could help establish whether people who keep online diaries or personal blogs are obligated to protect the privacy of the people they interact with offline. Each person is free to reveal their own private life, but whether the blogger is free to reveal details of someone else’s private life is unclear. The outcome of the trial will obviously have ramifications for bloggers, but will also impact the networking sites such as MySpace and Facebook.

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Looking forward to having a few friends over for the Big Game on February 4th? If you are hosting a party anytime, you should consider how to best protect your guests and yourself.

Between Thanksgiving and Super Bowl Sunday, 28.5 million Americans host parties, of which 21.3 million do not have a personal umbrella insurance policy, leaving themselves open to potential lawsuits and facing financial ruin, should the worst occur.

If a party guest drinks, drives and causes an accident, the hosts can be held responsible in more than 30 states. In fact, a majority (53 percent) of party hosts believe they should be held responsible, but despite this, most haven't taken steps to protect themselves.

A personal umbrella insurance policy provides additional liability coverage over homeowners insurance. For those party animals who frequently host events, purchasing a personal umbrella policy may be a prudent move, and typically only costs a couple of hundred dollars a year for a $1 million policy.

In a recent survey conducted by the insurance industry, 84 percent of those responding said they would stop serving party guests if they'd had too much to drink. But when asked if they had ever intervened, only 35 percent of these respondents had ever actually “cut off” a guest.

Steps to prevent party accidents and protect yourself:

• Limit your guest list to those you know.

• Host your party at a restaurant or bar that has a liquor license, rather than in a home or office.


• Provide filling food for guests and alternative non-alcoholic beverages.


• Schedule entertainment or activities that do not involve alcohol.


• Arrange transportation or overnight accommodations for those who should not drive.


• Stop serving alcohol at least one hour before the party is scheduled to end.


• Do not serve guests who are visibly intoxicated.


• Consider hiring an off-duty police officer to discreetly monitor guests' sobriety or handle any alcohol-related problems as guests leave.


• Stay alert, always remembering your responsibilities as a host.

In Colorado, Colorado Revised Statute 12-47-801 governs claims against party hosts. Social hosts serving alcohol are immune from civil claims, including wrongful death and property damages, due to the intoxication of any person consuming alcholic beverages, unless the host knowingly serves alcohol to an underage person. In that case, the statute of limitations for a claim under this category is one year, and damages are limited to $150,000. The party actually consuming the alcohol, including his or her estate or guardian, cannot bring any claims whatsoever against the host.

Posted by Linda Chalat at 4:06 PM | Permalink | Comments (0) | TrackBacks (0)