Oregon Trial Advocate

Personal Injury Law & Politics

The Disgrace of Penn State

By Greg Kafoury on Posted in Sexual Abuse, You Ought To Know

In 2002, an assistant coach in Penn State’s football team told his boss, the legendary coach Joe Paterno, that he caught Jerry Sandusky, Paterno’s former defensive coach, anally raping a 10-year-old boy in the team’s locker room.  Coach Paterno reported the assault to the athletic director, and to the vice president of Penn State University.  The President was told a little later.

No one called the police.  No one conducted any form of investigation.

Meanwhile, Sandusky continued his work with The Second Mile, a charity for troubled youth that Sandusky had started in 1977.  The organization continued to deliver to Sandusky a stream of troubled young boys, and reports of Sandusky’s molestation and raping of these children have grown steadily in the days since the scandal broke.

University officials have been indicted for perjury and concealment, and Sandusky has been charged with the rape of children.  Paterno, lionized as a moral leader as well as perhaps the greatest football coach of the last half-century, now sees his reputation in ruin.

This dreadful pattern of denial and concealment of sexual abuse seems never to end.  Our law firm, Kafoury & McDougal, has represented more than a dozen women abused by the American Medical Response (AMR) ambulance attendant Lannie Haszard between 2005 and 2007.  One case went to trial, with the resulting judgment totaling nearly $4 million.  Many other cases have settled.  We also presently represent women sexually abused by AMR ambulance attendants in Missouri and California, and now represent three women who were sexually abused during surgery by Dr. Frederick Field, an anesthesiologist in The Dalles, Oregon, between 2008 and 2011.

From the Catholic Church to ambulance companies, hospitals, and Penn State University, protecting the institution at the expense of those it is entrusted to protect constitutes a great moral failure of our institutions.

Dr. Vishal James Makker: Medically Unnecessary Spinal Fusions

By Greg Kafoury on Posted in Medical Malpractice

By all accounts, Portland neurosurgeon Vishal James Makker is a man who makes a strong impression.  Young and handsome, gracious and articulate, a man with a compelling and charismatic personality.  Among all the neurosurgeons in America, he was singled out by the Wall Street Journal on March 29, 2011, for his professional work.

Unfortunately for his patients, what the press found most compelling about Makker was his number of repeat surgeries.  One luckless patient had six spinal surgeries at the hands of Dr. Makker in less than two years.  Each one seemed to do more harm than good.  Undaunted, Dr. Makker tried to persuade him to try his luck a seventh time.

Dr. Makker has a particular propensity for performing multiple spinal fusions on Medicare patients.  The Journal reported that for “every 100 initial fusions, he performed an additional 39 surgical fusions, the highest rate in the nation” among active surgeons.

In 2006, the Oregon Medical Board issued a complaint against Makker, claiming that he was performing “medically unnecessary” spinal fusions, including operations performed without the consent of his patients.  He was also cited for billing for procedures he had not performed.  Yet Makker was able to resolve the problem by completing a remedial training program and a billing course.

Kafoury & McDougal are presently evaluating Dr. Makker’s surgical performance for a woman who had huge amounts of steel implanted in her cervical spine by Dr. Makker, and was then told by the good doctor that “it looks like we’re going to have to do this again.”  She eventually had a surgery from another neurosurgeon who tried to repair what had been done, but she wound up in the intensive care unit on life support, strapped down on a bed with tubes inserted into her.

Before you let any surgeon work on you, you should check all publicly-available resources to learn what you can about the physician.

Settlement Lawyers v. Trial Lawyers

By Mark McDougal on Posted in You Ought To Know

The number of civil jury trials has been steadily declining over the past few decades.  In the entire federal court system, there were only 400 personal injury trials in 2010.  Judges fully understand the importance and need for jury trials.  In Oregon, Multnomah County judges were so concerned about the trend in declining jury trials in state court that they actually put together a panel to study the issue. The panel explored a variety of reasons for declining jury trials, however, it seems the panel overlooked the main cause: the emergence of the “settlement lawyer.”

A group of lawyers who never would have survived a couple of decades ago, so-called “settlement lawyers,” have managed to thrive by marketing themselves to injured persons.  These “settlement lawyers” devalue everyone’s claims because the insurance companies know that they will not take cases to court.  Jury trials are disappearing because people who suffer personal injuries are not educated about how to choose a lawyer and often end up with a “settlement lawyer”.

“Settlement lawyers” accept the low-ball offers from the insurance companies and make a full contingent fee, even though an honest contingent fee is premised on the lawyer’s willingness and ability to take a case to trial if a fair settlement offer is not made.  Most plaintiff’s lawyers set contingency fees, meaning they only collect fees if you win your case.  The low settlements made by these “settlement lawyers” get entered into the insurance company computers and are used to value new claims.  “Settlement lawyers” are causing a downward spiral, actually helping insurance companies under-value claims. Some cases are best settled, but if your insurance company knows the attorney will settle, it undervalues the claim.

These “settlement lawyers” also do not work up cases for trial because they aren’t going to try the case. Many of them also don’t understand the rules of evidence, because they rarely, if ever, have used them in court. Knowing what evidence is admissible is crucial to the ability to properly value a case.

In 2010, there were only 100 civil jury trials in Multnomah County.  So far this year in 2011, we have already tried 10 cases as of the end of June.

Make sure you hire a trial lawyer if you are injured.  Here are three questions to ask your current or perspective lawyer:

  • How many trials have you had over the last 2 years?
  • What’s your biggest jury verdict?
  • How many years have you been a plaintiff’s attorney representing injured people?

Should You Deal with Other Insurance Company After an Accident?

By Greg Kafoury on Posted in You Ought To Know

“Do I Really Need a Lawyer? The Insurance People Seem So Nice . . .”

“We are sorry our client ran into you.  We’re here to help.  I’m sure we can work this out.  Let me just turn on the tape recorder and get your statement, and please sign this form, which just allows us to get your medical records. . . .”

Insurance adjusters are trained to lull you into thinking that you will get a fair deal from them, and that you really don’t need to have a lawyer on your side.  Then, months later, they make a settlement offer which is a small fraction of the value of your case, and they tell you that that is all you’re going to get.

So at this point, where are you?  They have all your medical records, including records of unrelated body parts and unrelated conditions, and perhaps even psychological or psychiatric records.  They have your complete statement, and woe be unto you if you left anything out of it.  They have also done an on-scene investigation.

What do you have?

You have no statement from the other driver.  You have lost control over your own medical records.  You have lost such crucial evidence as the opportunity to measure skid marks, to document the point of impact, be the first to talk to eyewitnesses, and to get photos of their vehicle before it is repaired.

So, the insurance company has everything, and you have nothing.  Of course, sometimes things are much worse.  Perhaps the bump on the knee that you neglected to mention while the insurance company was recording you has gotten worse, and now you need surgery.  Too bad.

The point is simple:  Insurance people are serious professionals, and their only goal is to protect the insurance company by making sure you get as little compensation as possible.

If you’ve been hurt by the fault of another driver—or by any other person or business, for that matter—call a lawyer that you can trust.  Treat your claim seriously, because the other side will.

Q: What Can I Do if Someone Cuts Down My Tree?

By Lyndsey Bechtel on Posted in Timber Trespass

A: Oregon law recognizes that trees on your residential property have great economic and aesthetic value.  The term,”timber trespass” refers to unauthorized cutting of trees or other vegetation on another person’s property.  This includes cutting a whole tree or just a few limbs.

In many instances, neighbors are responsible for timber trespass, often to allow sunlight into their garden, or enhance a scenic view.  Government agencies and landscaping contractors commonly commit timber trespass, as well.

If your tree is cut, it can costs tens of thousands of dollars to uproot the tree stump, buy a new tree and then plant it.

Oregon Law ORS 105.810 entitles you to double or triple the amount it costs to replace the damage, depending on if the trespass was negligent or intentional.  The purpose of this multiplier is to both encourage people to obtain property owner permission before cutting trees, and compensate the property owner for their loss.

Even a few cut limbs can also entitle you to a remedy. One distinction to consider is whether the cut limbs were originally on your property, or hanging over your neighbor’s property.  Adjacent property owners have the right to cut any tree limbs or vegetation encroaching onto their property, but this right is not unqualified.  If cutting any encroaching limbs causes harm to your plant, you are entitled to compensation.  Also, if the limbs were cut on your property to begin with, you are entitled to a remedy, regardless of whether the tree is harmed as a result of the cutting.  A remedy for cut tree limbs sometimes is the amount it would cost to plant a new tree that is approximately the same volume as the limbs lost.

Q: I Think My Doctor is Prescribing Too Many Drugs. What Can I Do?

By Lyndsey Bechtel on Posted in Medical Malpractice

A: It is common to trust your doctor.

However, over-prescription is serious and can affect individual patients and the community.  From 2005 to 2009, nurses who ran the Payette Pain Clinic (including Kelly Bell, Penny Steers and Scott Pecora) in Vancouver prescribed opiates like Oxycontin and Methadone on much higher levels than the rest of the medical community, even other practitioners specializing in pain management.  Numerous Payette Clinic patients died of lethal overdoses, while others were dangerously over medicated, falling asleep at the wheel or with lit cigarettes. Some patients sold their medication on the street to support their drug habit.  Payette nurses eventually surrendered their licenses to prescribe narcotics after the DEA raided the clinic.

Payette patients’ problems didn’t end there.  After Payette closed, hundreds of patients dependent on high dosages of narcotics dealt with extremely painful withdrawal symptoms like nausea, agitation, diarrhea, sweating, chills and inability to sleep.  Some patients even started using Heroin, committed suicide, or robbed local pharmacies.

In 2009, our office agreed to represent the family of a young woman who died by ingesting Oxy that was prescribed to a Payette patient.  Since then, pharmacists, doctors and other Payette patients have shared their stories of Payette Clinic tragedes with us.  We currently represent ten clients linked to Payette. For more information on pill mills, read this article about a $10.7 million verdict awarded to the family of an overdose victim.

If you think your doctor is over-prescribing medication, get a second opinion.

Sexual Assault & Abuse by Doctors

By Jason Kafoury on Posted in Sexual Abuse

Sometimes health care practitioners, including doctors, take sexual advantage of their patients.  People are often at their most vulnerable when being treated by a health care professional in an ambulance, while under anesthesia, or during physical examinations.  A recent Oregonian story focuses on Dr. Frederick George Field, an anesthesiologist in the Dallas, who was indicted on August 3, 2011, for sexually abusing four of his former patients.

Several questions come to mind in regards to whether a doctor’s employer can be held responsible for the abuse. How long ago did the abuse happen? Had there been complaints to the employer about the health care worker or doctor prior to the alleged abuse?  How well did the company investigate claims of inappropriate sexual activity?

Our law firm represented Royshekka Herring in a lawsuit against American Medical Response (AMR) for the sexual abuse she suffered at the hands of ambulance EMT Lannie Haszard.  In that case, we showed that American Medical Response Northwest received at least three prior patient complaints of sexually-inappropriate behavior, yet the ambulance company did almost nothing to investigate Mr. Haszard.  The jury award, statutory damages, and court-awarded attorney fees totaled nearly $4 million.

Recently, our law firm has partnered with a Missouri attorney to sue a local AMR-affiliated company called Medevac in Jackson County, Missouri for a patient who was sexually abused in an ambulance.  We also have represented sex abuse victims against the Catholic Church, psychotherapists, and doctors.

Protect People’s Right to Videotape the Police

By Jason Kafoury on Posted in False Arrest, You Ought To Know

Our firm represents many citizens abused at the hands of police.  These cases are difficult to win, because normally it is a victim’s word against a police officer’s.  In one of our recent cases, Hammick v. City of Portland, we were awarded $175,000 against the City of Portland (the largest jury verdict ever against the City of Portland for police using excessive force). In that case, the police pointed their guns for no valid reason at three young African American men in a parking garage back on St. Patrick’s Day, 2007.   The jurors told our clients afterwords that they reached their verdict by relying on the testimony of two independent Portland State University students who witnessed the encounter. The jurors were clear: independent witnesses made the difference.

We advise people that if they are abused by police officers, they should find witnesses to back up their claims.  In our modern world, nearly everyone uses cell phones. Police officers across the country have been videotaped by cell phone cameras abusing citizens. Here is link to a recent police beating in Seattle that was captured by an eye witness.  However, police and state legislators are fighting back to prevent citizens from videotaping police officers.  Relying upon existing wire-tapping or eavesdropping laws, police officers are arguing in 12 states that all parties must consent for a recording to be legal.  Most state laws allow recording in public places where “no expectation of privacy exists,” however, many state officials are not recognizing this exception when it comes to filming the police.  Read this article regarding district attorneys prosecuting citizens for videotaping police in Massachusetts and Maryland.

Here in Oregon, citizens and attorneys need to be on the alert in the 2011 legislative cycle to ensure that police do not attempt to block citizens from documenting police abuse.  If you or someone you know has witnessed police abusing a citizen, or has been abused at the hands of an officer, please do not hesitate to contact our firm for a free legal consultation by calling 503-224-2647.

K and M Help Bring Sex Abuser to Justice

By Jason Kafoury on Posted in Sexual Abuse

Kudos to Oregonian columnist Steve Duin for reporting on Douglas County deputy district attorney Jodee Jackson’s extradition and prosecution of Tyler Lambie.  Justice has finally been served.  Lambie, the son of Milo Adventist Academy faculty, is now serving 6 months for sexually abusing a former student. Mr. Lambie was set to plead guilty to the charges back in 2007, but instead he drove off in a car his parents gave him and remained a fugitive.  Our law firm represented the abused student and we tracked down Lambie at an address in California and provided his address to the Douglas County DA.

As Duin notes below in his column, Mr. Lambie was one of two Milo faculty’s children convicted of sexually abusing students this summer.  Our investigation showed that the Milo Administration looked the other way at allegations of abuse of their students when it involved the adult children of faculty. Recent headlines depict a national problem.  Suits against powerful institutions and corporations, such as the Catholic Church and Boy Scouts, have shown these organizations are more interested in protecting their reputation, and avoiding scandal, than they are in protecting those in their care.

Our firm has stood up on behalf of sexually abused children and adults against powerful institutions that ignore or cover up allegations of abuse within their own ranks. In the fall of 2009, our firm won $3.25 million against American Medical Response on behalf of Royshekka Herring, a single mother who was sexually abused while riding in the back of an ambulance by an AMR EMT named Lannie Haszard.  Evidence in that case showed that AMR allowed Haszard to work in the back of ambulances despite getting 3 complaints of sexually inappropriate conduct by Mr. Haszard from former patients.

Tillery v. Dollar Tree Verdict news coverage

By Mark McDougal on Posted in K&M in the News

The Oregonian did a story on the verdict we obtained on June 23rd, 2010 in Tillery v. Dollar Tree Store, Inc. Unfortunately, the print version of the Oregonian piece used the cheeky headline “Purse Peek.” Dollar Tree lawyers called the incident a “Purse Peek” and argued there was no force used.  The jury rejected this defense and found the plaintiff was falsely arrested and battered. We must point out that we appreciate The Oregonians coverage of courthouse news and the fact that they have courthouse beat reporter Aimee Green.