Harley Davidson has been an icon for cycle enthusiast for over 100 years. In 1901 William S. Harley designed his first engine to fit a bicycle. In the past, Harley Davidson has been named one of the safest motorcycles on the road however a recent defect in certain of the Harley model line, known as the “Harley Wobble,” has side-swiped the company’s safety record. A well documented safety issue affecting thousands of owners, the “Harley Wobble” also known as the “rear steer” and even “death wobble”, can develop if the engine is not constrained in all three axes. An unconstrained engine develops an elastic relationship between the swing arm and frame of motorcycle. The “wobble” is so well known that motorcycle repair shops often openly advertise repairs for the defective models. 

Kevin Liebeck, attorney Hodes Milman LLP, explains the elements which must transpire in order for the defect to appear. “Well, it’s a rather transient phenomenon as far as its occurrence in nature, if you will. It is going to be a function of getting the motorcycle into a situation where it has some dynamic inputs that are going to excite this particular condition. You’ll ordinarily find it in turns when the rear tire of the motorcycle is being loaded with a lateral “g” component. That’s when you’re going to begin to distort the relationship between the swing arm and the frame and you may start to see an input into the motorcycle as the longitudinal plane of the motorcycle frame and swing arm diverge from one another. In simpler terms, what you’re effectively having happen is that the rear wheel is changing its angle relative to the centerline of the motorcycle and is, in essence, steering it.

Although thousands of these accidents have occurred due to what is believed to be the so-called “Harley Wobble”, Harley Davidson has yet to institute a recall. Liebeck states, “If they admitted the problem exists, I would expect that they are going to have a whole lot of people suing them for injuries that they have sustained as a result of these accidents.” Harley Davidson’s stand is that the occurrence of this situation or if this even happens, the driver is likely to blame due to excessive speed or reckless driving. Harley is, however, aware of several aftermarket kits to correct the problem that they don’t believe happens. The kit is designed to restrain the engine laterally so the rider will not be subjected to the “wobble”. Cycle World conducted a test on one of the after market kits and found it to be remarkably effective.  The question Cycle World asked in their review is the same one consumers should be asking: why didn’t Harley do this?

How the problem occurs or whoever is to blame, the fact is thousands of injuries have occurred minor to major. Some of the injuries are road rash, amputations, brain injuries, and even death. Usually the more severe injuries are a result of being thrown from the motorcycle or car crash collisions.  When these injuries occur legal action can be taken. Damages available are dependent on the state’s law but most can expect there are going to be special damages. Past, present, and future loss of earnings are taken into consideration depending on the severity of injuries. For instance, if the injuries are too severe that the individual can’t return to work for months or even years then present and future loss of income is applicable. In addition to that their medical bills, past and future, can also be included within the compensation. In some states general damages such as pain and suffering and emotional distress may also be available. In the case of a more severe injury such as amputation or paralysis the family may also be entitled to compensation.  For example, if the spouse is left to bear the brunt of household duties because the injury no longer allows them to participate.

In general most people believe motorcycles are dangerous and accidents occur largely because of carelessness.  These misconceptions  work to Harley’s advantage. The majority of cases are settled, however settlement amounts are not public. Liebeck explains, “We don’t know the amounts of the settlements as they are always confidential. Harley keeps these secret because they don’t want people to know what sort of ballpark range they are willing to pay on these claims.” Liebeck also recommends retaining experienced representation, “Any lawyer that’s experienced in products liability knows that some of these companies play extremely aggressive hardball and some of them are much more inclined to settle quickly and easily. Any manufacturer that has the capacity to hire a sophisticated law firm to defend them will - and believe me, Harley does. So, if you deal with an attorney that doesn’t have experience in these matters, then Harley is not going to take you seriously. You need somebody who is going to get Harley’s attention. This holds true for any defense attorney. The first thing they are going to do is assess their opponent. It’s not just about case either; it’s about who’s bringing the case because if it’s somebody that they know can actually deliver the goods, they know that they’re going to deal with this situation. Whereas if it’s somebody that they don’t think can deliver the goods, they have the luxury of sitting back and waiting to see if they make a mistake. Frankly, your case is only as good as who’s going to prosecute it for you.” Liebeck also recommends researching your state’s statute of limitations.

These cases are heavily dependent on expert witnesses. Sometimes you will need a civil engineer to assess the road in order to determine if design may have played a role. In some circumstances a private investigator is required to track down or question witnesses. Of course the individual’s physician or other medical experts may need to testify to the extent of the person’s injuries. Life care planners may also be needed to determine future medical cost as well as economist to calculate loss of past and future wage loss.

In any circumstance getting sound expert advice is critical to any individual thought to be injured due to suspected negligence.

Bruce Plent: What is a heart attack misdiagnosis?

Jeff Milman: Heart attack misdiagnosis cases are generally cases that involve the failure to correctly diagnose and treat a heart attack.  A heart attack is nothing more than oxygen depravation to the heart.  It’s also called acute myocardial ischemia and as many as 25 percent of those who suffer an acute heart attack die.  About one half of those deaths occur before the patient even reaches the hospital.  So, the lucky ones are those that arrange to get to a hospital and be treated.  There are essentially two causes of death in a heart attack.  The first is a fatal abnormal heartbeat, called an arrhythmia, and the second is the failure of the heart to pump, which causes damage to the heart wall.  The risk factors for developing coronary heart disease are male gender, advanced age, elevated blood cholesterol, high blood pressure, diabetes, mellitus, cigarette smoking, a history of premature arteriosclerosis, which is hardening of the arteries, and of course, obesity and family history. An acute myocardial infarction, or heart attack, is the result of a prolonged lack of oxygen to the heart muscle, and that can block the artery.  So, when you that hear somebody underwent a bypass or they were stinted, those are ways of opening up the flow of blood.  Now, there are many ways to handle it.  One is through thrombolytic therapy, where they use drugs to break up a clot.  Another way is through a catheter, or a percutaneous transluminal coronary angioplasty. There’s also bypass grafting, where the goal is to successfully restore the blood supply to the heart.  There are many symptoms of a heart attack and it’s important to understand these - especially for a patient that is being evaluated.  One is obviously pain.  A physician should ask about the pain’s location and whether it radiates.  Another is the quality of the pain - how long it’s been present, how long it lasts and what causes or relieves it.  You’d be surprised how many heart attacks don’t present with this pounding chest pain we always think about running down the left arm.  You can have abdominal pain and pain in your back, which is also part of a heart attack.  Obviously, chest pain is usually indicative of a heart attack, but it doesn’t have to be. The classic presentation we always hear about is called angina, but that pain does not have to be in the chest or running down that neck or arm or in the jaw.  It can be in the back, elbow or  shoulder. Generally, heart attacks are accompanied with a shortness of breath called dyspnea, which is a whole different area that physicians should ask about.  It’s important to find out if it occurs with rest or with slight exertion.  Rarely, you’ll have bluing of the skin, which they call cyanosis. There’s a whole host of other symptoms which can be cough,dizziness, which they call syncope, swelling, nausea, sweats, fever, chills and muscle pain. The bottom line is that a physician has to correctly evaluate a patient.  When a patient comes in with various pains, physicians are routinely taught, whether it be in the urgent care setting, the emergency room, or your doctor’s office, that you should put together a differential diagnosis.  That means, in order to diagnosis the most likely causes of the pain, there needs to be proper testing.  However, we see many cases in which doctors don’t do the proper testing or misinterpret the testing that is done.  For example, they’ll read an EKG as normal, even thought it’s not, or they’ll choose something on the differential in favor of something that’s more lethal. For example, you go to the doctor and he may tell you that you’re suffering from some sort or atypical chest pain or gastritis and he doesn’t do the appropriate testing for angina - which could kill you.  I’ve had a number of cases where the diagnosis was something other that what it was and the patient goes home and dies. Misdiagnosis is the most common type of case. The most common defense asserted by doctors is that it was an atypical presentation.  They say the doctor’s mistake in diagnosis is justified because this was an unusual presentation or that the signs and symptoms were so unusual that they misled the doctor. They’ll use this defense even though there may have been an error in judgment and will claim that it wasn’t malpractice.  Sometimes they’ll say that the patient failed to give an accurate history, even though we often see very poor record keeping.  Doctors will say, ‘Oh, I always ask these questions.  If the patient had told me x, y, and z, I would have put it down.’ Many times they’ll argue proximate cause, that the delay in diagnosing it is not the cause of the patient’s death or injuries.  In other words - that even if they had made a timely diagnosis, this was so horrible that the patient would have died anyway.  Those are the types of negligence claims most common in cardiac cases.  These are not inexpensive cases by any stretch of the imagination, either.  Our firm has a number of high profile seven figure settlements and verdicts involving cardiac cases.  In fact, we just finished one up for over $6 Million. Many experts are required in heart attack misdiagnosis cases such as a physician in the same specialty as the doctor you are claiming failed to diagnose the patient.  For example, if this happens at a doctor’s office, and it’s a family practice document, then that’s the type of expert we would need to initially evaluate to find out whether a misdiagnosis occurred.  It could involve any kind of doctor including a plastic surgeon, an urgent care doctor or an emergency room physician.  The second type of expert we need is a cardiologist.  We need somebody to say that, had the patient been referred for treatment, this would have been the treatment, the patient’s prognosis would be x, y, and z and they would have survived. Sometimes we need a specialist for scans like echocardiograms, EKGs (electrocardiogram) or stress testing.  Sometimes we need a pathologist.  Issues come up on autopsy all the time.  In addition, we often use other experts that deal with damages such as a legal nurse consultant, an economist and a future life care planner.  These cases can require upwards of five, six or seven experts at times.

Bruce Plent: What standard of care are doctors held to? 

Jeff Milman: A doctor is held to the standard of what an ordinary and reasonably prudent practitioner in the same or similar specialty and circumstances would be held to.  That’s pretty much true nationwide, as well   What that means is that if you’re evaluating the conduct of an internal medicine practitioner in his office, you would look at what a different internal medicine practitioner should have done under the same or similar circumstances. However, sometimes doctors will choose to treat patients even though it’s not in their specialty.  For example, if a family practice doctor decides that something is cardiac in nature and chooses to treat the patient without referring the patient to a cardiologist, then that family practice doctor will be held to the same standard of what a cardiologist would have done.  They’re placing themselves into that situation. You’ll often see that an admitting physician, somebody who’s quarterbacking the patient, will call in for specialty consults.  For example, if it’s an infectious process, they’ll call in an infectious disease specialist.  They do that because if you’re the admitting physician and you choose to treat the patient for some infectious disease, you’re going be held to the standard of what an infectious disease doctor would have done.  So, whether the conduct you’re looking at happened in an urgent care facility, in the doctor’s office or an emergency setting, you’re going to be looking at experts in those particular specialties.

Bruce Plent: What damages are available to victims of heart attack misdiagnosis? 

Jeff Milman:  If the person, God forbid, passes, the family would have a wrongful death case and would be able to claim emotional and general damages, what we call loss of care, comfort and society. In California, that’s limited by a cap on damages.  Some states have caps; others don’t.   In addition, the family could recoup any funeral expenses paid.  If there’s a surviving spouse, he or she could seek to obtain the income lost by the family unit as a result of the death of someone who was employed or earning money. The final set of damages might be the loss of household services.  For example, if a husband dies, we use an economist to figure out what the value of household services might have been, such as mowing the law, taking out the trash, etc.  For a wife, those services might be cooking and cleaning.  Nowadays, those roles are mixed as both may work and it will be unique to that family unit.  If the person survives, the damages would consist of the pain and suffering caused by the failure to diagnose or treat.  They would also claim whatever their out of pocket medical expenses might be.   In addition, there might be a life care plan to the extent they will need future medical care by virtue of the negligence and the delay.  In that situation, we would figure out every pill, band aid and procedure what they would need in the future. The difficulty is proving those damages by virtue of the delay as opposed to what the damages would have been if their cardiac condition had been properly treated.  There also might be a claim for consortium - when there’s been damage to the marital relationship because one of the partners is severely compromised. If certain members of the family witnessed and appreciated the events associated with the misdiagnosis, they may have their own independent claims for infliction of emotional distress.  When a cardiac condition is not correctly diagnosed, the consequences are horrible.  There are also silent MIs where the patient doesn’t feel any pain.  Physicians often overlook these symptoms, yet you’ll find that in 20 percent of all heart attacks, the victim did not experience pain.  In many cases, their EKG is normal, but that doesn’t rule out a heart attack.   In those cases, doctors will say that they should be held to a lesser standard of care.  However, if there are enough symptoms or risk factors, combined with symptoms that an ordinary and reasonably prudent specialist or physician in that gender should have diagnosed or considered a cardiac cause for the patient’s problems, then that defense doesn’t hold up.  You could have a patient who presents with radiating back pain, sweating and nausea where the back pain increases when they exert themselves and the doctor could appropriately say that his diagnosis might be a disc injury in the low back.  However, it also might be heart attack.  It might be food poisoning, gastritis or some type of stomach flu, but the key is that you’ve got to think of these things and you’ve got to embark on a plan to rule them out. The doctors that get in trouble are the ones that automatically misdiagnose, don’t refer the patient, don’t consider the proper diagnosis or choose one of the lesser lethal ones, like atypical chest pain, and don’t properly work up the patient for something that could kill them. Heart attack misdiagnosis can happen in a number of settings.  It can happen in an acute setting, it can happen when you go to a doctor’s office one time or repeatedly or in an urgent care setting.  I’m looking at a case right now where a man was seen over a two year period.  Two EKG’s were run and both were abnormal, but the physician never made the diagnosis.   He had chest pain at work and his employer ran an EKG in the afternoon.  They advised him to see his own doctor.  He and his wife were there by 5:00 p.m.  They gave the doctor the abnormal EKG report and he immediately decided it might be a hernia and sent the patient off to be evaluated for that.  The patient subsequently died from a cardiac arrest. There are so many other cases just like it.  In another case, a man was having chest pain at home.  He went to the doctor’s office where an EKG and a treadmill test were done.  The doctor decided, for whatever reason, that it wasn’t a cardiac issue and cut the patient loose.  He came home and died of cardiac arrest.   

Bruce Plent:  Why should someone who thinks he or she has been misdiagnosed contact an attorney? 

Jeff Milman:  That’s the issue; they don’t really know if they’ve been misdiagnosed.  A good attorney will know.  That’s our specialty - investigating these things.  There are those who contact us where they think they have a case.  However, after we evaluate it and bring in experts, we may decide they don’t have a case.  Others will have a case. For example, take a situation where someone presents with radiating chest pain going down the left arm, sweating, worsening conditions with exertion and episodes of passing out.  If the doctor immediately decides that its atypical chest pain, sends the patient home and he dies - leaving behind his family - well, you and I can make that diagnosis.  However, in many cases, it’s more subtle than that.   

Bruce Plent: How are the majority of heart attack misdiagnosis cases resolved?

Jeff Milman: Most cases eventually settle.  There are some that will have to go to trial or to an arbitration process, if there’s an arbitration agreement.  The important things in evaluating cardiac cases for patients is whether they have a good lawyer and good experts and whether a jury or judge will find the family or patient deserving.  Those are some of the factors that are looked at by the other side in evaluating the case from their standpoint.  By virtue of its very nature, medical malpractice cases generally have a tendency to go to trial more often than not.  However, good cases generally settle.  There are some exceptions.  You could have a physician who won’t consent to a settlement and wants to see what a jury will do.  If that’s the case, so be it.

Bruce Plent: What questions should someone ask a medical malpractice attorney before hiring him? 

Jeff Milman: They should find out what percentage of their practice deals with medical negligence.  Someone who does family law one day, criminal law the next day and medical malpractice the third day creates a recipe for disaster.  Other questions to ask would be how many cardiac cases they have handled, whether they have access to good experts, how many cases they have tried or arbitrated and whether they have access to good experts.