Colorado Law Blog

Last Thursday, the Washington Supreme Court ruled that the family of a Washington man whose brain was harvested for mental-health research when he died can pursue a lawsuit against King County as well as the institute that received the organ. The state Supreme Court unanimously found that a lower-court judge was wrong to dismiss all claims brought by the family of Jesse Smith, who died of heart problems in 2003 shortly after his 21st birthday. Smith was an organ donor, and his mother and her husband consented by phone to provide brain tissue to the nonprofit Stanley Medical Research Institute of Maryland. Instead of taking a small tissue sample, however, the King County Medical Examiner's office provided the entire brain.

Stanley Research and the medical examiner's office argued that Smith agreed to be an organ donor when he obtained his driver's license, and that consent allowed the harvesting of his brain for research. But the Washington state Supreme Court held that Washington's Anatomical Gift Act — as it stood at the time — only authorized organ donations to hospitals, not research institutions, unless the deceased or next of kin specifically expressed consent for that purpose.

Stanley Research, with an endowment of over $300 million, created its brain bank in 1995 and calls itself the world's biggest private source of philanthropic support for psychiatric research. It has provided hundreds of thousands of brain-tissue samples to scientists around the world, and said in a statement issued last year that to its knowledge it has never obtained brains without full consent from next of kin.

But several families dispute that claim. More than a dozen families in Maine have said they did not give consent for entire brains to be used, and a North Carolina woman also sued the King County Medical Examiner's Office, saying no such consent was given when her brother died of a drug overdose in 1998. Maine's high court ruled early this year that two of the lawsuits against Stanley Research in that state could go forward.

Thursday's ruling clears the way for a trial in King County Superior Court on whether Adams consented only to the donation of a small tissue sample, as she contends. The mother intends to seek damages for emotional distress.

The ruling barred some claims, including one for fraud and another for invasion of privacy, but it allowed her to pursue claims of conspiracy and wrongful interference with a dead body. Grant Degginger, a lawyer for the county and the institute who is also the mayor of Bellevue (located in King County), said he was pleased that much of the lawsuit had been dismissed.

Stanley Research paid for a pathologist in the King County Medical Examiner's Office from 1995 to mid-2004, and the office provided the institute with 255 brains. Stanley Research has the following statement on its website: SMRI has paid a reasonable amount of compensation for the services of those who have helped obtain donations of brain and other tissue for the Stanley Brain Collection, comparable to that paid to medical and tissue bank personnel elsewhere in the United States. To compensate for this work is legal and ethical.

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Recently there has been an emerging national trend toward recognizing limited animal rights on the estate planning front, but a Michigan appeals court has taken a traditional view of the law concerning a man convicted of sodomizing a sheep.

Jeffrey Scott Haynes, 45, a habitual offender who is serving a 2½- to 20-year prison term for sodomy will not have to register as a sex offender once he is released. As outrageous as his conduct was, a three-judge panel of the Michigan Court of Appeals described it as his "abominable and detestable crime against nature," the victimized sheep doesn't qualify as an "individual" under state law. The court said the sheep was the "object" of Haynes' crime, but held that he would have had to commit a crime against a human being to qualify for the sex offender registry, according to the Detroit Free Press.

The prosecution had persuaded the trial court that Haynes should be required to register, the Calhoun County prosecutor, said this week that the "the activity involved exemplifies a dangerous and deviant behavior that ought to fall under the registry requirements." But the appellate court ofund the lack of a human victim compelling.

Although Haynes has previously been convicted of home invasion, forgery and uttering and publishing, he apparently doesn't have any prior sex convictions. He was reportedly convicted of sodomizing the sheep based on DNA evidence after a Bedford Township farmer found him trespassing several years ago and noticed an injured sheep. No information as to whether the farmer will seek damages in a civil suit was mentioned.

Posted by Linda Chalat at 10:52 AM | Permalink | Comments (0) | TrackBacks (0)

Trucking companies should work harder to ensure that their drivers get required rest, and the government should move toward mandating the use of alarm systems to alert exhausted truckers, a safety commission from the National Transportation Safety Board recommended last week.

The board hearing, held in Washington, D.C., and streamed live on the Internet, was held in response to an early-morning crash in western Wisconsin three years ago in which a bus carrying a high school band slammed into an overturned semitrailer, killing five people.

Just before 2 a.m. on October 16, 2005, a semitrailer tractor truck traveling westbound on the I-94 highway near Osseo, Wisconsin, departed the right-hand lane and traveled along the earthen roadside before re-entering the highway where it overturned, coming to rest on its right side and blocking both westbound lanes. About a minute later, a chartered 55-passenger motorcoach, carrying members of a high school band, and traveling at highway speeds crashed into the underside of the overturned truck. The bus driver and four passengers were fatally injured. Thirty- five passengers received minor to serious injuries, and five passengers were not injured. The truck driver received minor injuries.

NTSB investigators concluded that the truck driver fell asleep at the wheel and began to drift off the interstate's shoulder. When he swerved back onto the road, the rig overturned. The bus then plowed into the truck.

Lack of sleep is a factor in about one in eight large-truck crashes. The NTSB called upon the Federal Motor Carrier Safety Administration to step up enforcement of trucking companies, making sure their record-keeping is up to date and drivers are being given adequate time to rest.

The NTSB also urged that trucking companies and the government should consider fledgling technology that would keep drivers alert, thus resulting in safer roads. The Safety Board found that had the truck been equipped with technologies to detect fatigue, the systems might have prevented or mitigated the severity of the accident. And had the motorcoach been equipped with a collision warning system with active braking, the severity of the accident may have been significantly reduced.

As a result of the accident, the NTSB made the following safety recommendations:

To the Federal Motor Carrier Safety Administration:

1. Develop and implement a plan to deploy technologies in commercial vehicles to reduce the occurrence of fatigue-related accidents.
2. Develop and use a methodology that will continually assess the effectiveness of the fatigue management plans implemented by motor carriers, including their ability to improve sleep and alertness, mitigate performance errors, and prevent incidents and accidents.

To the National Highway Traffic Safety Administration:

1. Determine whether equipping commercial vehicles with collision warning systems with active braking and electronic stability control systems will reduce commercial vehicle accidents. If these technologies are determined to be effective in reducing accidents, require their use on commercial vehicles.

More on the Net:

National Transportation Safety Board

National Highway Traffic Safety Administration

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The vast majority of emergency room patients are discharged without understanding the treatment they received or how to care for themselves once they get home. A new study following patients from two Michigan hospitals shows that 78 percent of patients did not understand at least one of four elements of their hospital care. The four elements considered were: their diagnosis, their E.R. treatment, instructions for their at-home care and warning signs of when to return to the hospital.

This lack of understanding can lead to medication errors and serious complications that can send a patient right back to the hospital. The greatest confusion surrounded home care — instructions about things like medications, rest, wound care and when to have a follow-up visit with a doctor.

Dr. Paul M. Schyve, senior vice president of The Joint Commission, the national organization that accredits hospitals, said: “This study showed that this is much more common than you think. It’s not the rare patient.”

Similar results have been found for patients leaving hospitals, not just emergency rooms. This lack of understanding may explain why about 18 percent of Medicare patients discharged from a hospital are readmitted within 30 days.

Older patients are particularly vulnerable and the new study found that people were not aware of what they did not understand, thus simply asking a patient if he understands is not enough. The problem is particularly dangerous with respect to prescribed drugs. A patient-education program used in 130 health delivery systems across the country found that about 40 percent of patients 65 or older have a medication error after they leave the hospital. A 2006 report by the Institute of Medicine found that doctors and nurses were contributing to these errors by not providing information in an effective way.

Everything is exaggerated in the emergency department. Doctors are harried, they have little time to go over complicated information and they do not know the patients. Most patients are anxious, upset and not likely to be thinking clearly.

To provide further incentive to hospitals to address the communication problem, the Medicare Payment Advisory Commission, a government agency that advises Congress on Medicare issues, has recommended a policy change that would reduce payments to hospital with excessive readmission rates. It has also asked Medicare to allow hospitals to reward physicians who help lower readmission rates.

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A horrifying truck accident which occurred last week in Denver demonstrates the uncertainty as to with whom you may be sharing the road. Last Thursday Francis Hernandez, 23, was driving a Chevrolet Suburban when he crashed into a Mazda pickup truck that was turning into a Good Times in Aurora. The collision drove the pickup into a Baskin-Robbins ice cream shop, killing two women in the truck and a 3-year-old boy waiting for ice cream.

Aurora police had stopped Hernandez in April for speeding, and failing to signal for a turn. They found he had two outstanding warrants for failure to appear in Adams County and Arapahoe County. That arrest was one of 16 that Hernandez racked up over five years, most of them for driving offenses. He is also suspected of being in the country illegally.

Many motorists will seek some protection by obtaining Uninsured Motorist (UM) coverage or Underinsured Motorist (UIM) coverage under their automotive insurance policy. Recent changes in Colorado law make this an even better idea by increasing the benefits likely to be gained from such coverage.

In 2007, the Colorado statute pertaining to UM coverage was amended with respect to policies issued or renewed after January 1, 2008. The amendments help innocent victims in several ways. The availability of UIM coverage is no longer dependent upon the amount of UM coverage carried by the injured party – UIM coverage is now triggered when liability coverage does not fully compensate the injured party.

One of the most important changes under the new law is the prohibition for the UIM carrier to reduce available limits of coverage by offsetting the limit by the amount paid by the responsible party. As an example – prior to the 2007 changes, if an injured party who had $50,000 in UIM coverage suffered damages in the amount of $65,000, and the responsible party – the tortfeasor – had paid $25,000 then the UIM carrier could reduce the UIM by the amount paid by the tortfeasor, reducing available UIM coverage to $25,000 and resulting in only $50,000 paid to the injured person. Under the new law, the injured party would receive the $25,000 from the tortfeasor and $40,000 from the UIM coverage.

However the statute does not prohibit reducing the amount of coverage by amounts actually received by the injured party. In the above example, the injured party could not receive $25,000 from the tortfeasor and look to his UIM coverage for the full $65,000.

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