Medical Malpractice

Some maryland surgical centers receive little oversight

Apparently, it’s not whether something walks like a duck and talks like a duck, it’s whether it bills insurance companies like a duck:

There is tremendous oversight in the operating rooms in hospitals.  But in Maryland, some other locations where surgery is done simply don't.  Maryland’s Health Secretary, Dr. Joshua Sharfstein, acknowledges some clinics where cosmetic surgery procedures are done don’t get licensed or inspected.       

In Maryland, he says medspas and plastic surgery clinics that don't bill insurance as “ambulatory surgery centers” aren't overseen like hospitals, even though they may do some of the same procedures.

It’s a legal loophole some consider a fatal flaw in the state’s health system.  And the family of a woman who died following a procedure at a Baltimore County medspa is attempting to shed light on the issue.  Denise Witherspoon and her family spoke exclusively with ABC2 about the death of their sister, Eula.

Source: Family of medspa patient talks for first time to expose medical loophole in Maryland

Lack of proper governmental oversight plagues many industries.  The civil justice system is a great cure for that.

Hip Implants

depuy engineer explains flaw in internal testing of asr hip

The New York Times reports on the interesting information being revealed in the first DePuy ASR hip trial:

Separately, a DePuy engineer, Graham Isaac, testified on Thursday that before selling the A.S.R., the company only tested its performance on laboratory equipment at one angle of implantation.

Depending on the surgical technique and a patient’s build, orthopedic surgeons can implant the cup component of an artificial hip at a variety of angles. And because the A.S.R. had a design flaw, normal variance from the single angle at which DePuy had tested it made it more likely for the joint’s cup and ball components to strike each other, releasing metallic debris inside a patient. 

Source: Hip Implant’s Risks Inadequately Assessed, DePuy Report Found in 2010 - NYTimes.com

Our sources tell us that the DePuy ASR implants are very likely to have been implanted at angles other than the one that was tested internally.  Whether the fact that DePuy engineers only tested one angle was intentional or a coincidence is purely a matter of conjecture at this point.

Tort "Reform"

tort reform bill dies in Indiana

Good riddance:

Indiana won’t be passing a bill requiring losers to pay all costs and attorney fees in civil lawsuits.

. . . .

The problem with the bill is simple, Steele said: “It doesn’t work.”

Steele, R-Bedford, said he had filed “exactly the same bill” in 1995 and got an earful from just about every interest group.

They convinced him, he said, that it is unworkable because determining just who is the loser in a lawsuit is difficult — and impossible in “no fault” divorce cases.

Source: Gov. Mike Pence-backed tort reform bill exits quietly | Indianapolis Star | indystar.com

One hypocrisy we at Legal Reader have often noticed: Conservative Republicans bristle at the suggestion that America looks to Europe for inspiration for anything… but they’re all too eager to pass European-style “loser pays” bills.

Drugs & Medical Devices

Samsca Lawyers Are Reviewing Liver Damage Cases

Dangerous Drugs recently published news that the drug Samsca (tolvaptan) has been associated with “irreversible and potentially fatal liver injury.”

The news was first broken by the FDA, which discovered the association between Samsca use and liver damage as part of a “double-blind, 3-year, placebo-controlled study” of about 1,400 patients with a type of kidney disease.

As a result of this, many Samsca lawyers are now reviewing potential Samsca lawsuits. Although it is too early to tell which lawsuits will succeed, attorney Justinian Lane is willing to speak to anyone who suffered liver damage while taking the drug Samsca.

For more information, see Justinian Lane’s post at Dangerous Drugs here.

Food Poisoning

Salmonella Leads To Hog Head Cheese Recalled in Louisiana, Texas

Food Safety news reported today that nearly 5,000 pounds of a pork product called “Hog Head Cheese” was recalled in Louisiana and Southeast Texas":

A recent outbreak of Salmonella Uganda in Louisiana has prompted a Texas company to recall a ready-to-eat (RTE) pork product. Houston’s Stallings Head Cheese Co. Inc. recalled 4,700 pounds of hog head cheese Thursday for possible Salmonella contamination.

The recall includes 10 ounce packages of “Richard’s Hog Head Cheese” bearing establishment number “EST. 2257” inside the USDA market of inspection and sell by dates “Use by 2 1 2013″ or “Use by 3 20 2013″on each package.

According to the announcement by USDA’s Food Safety and Inspection Service, the recalled meat was produced between Nov. 1, 2012 and Dec. 19, 2012. It was shipped to a distribution center for delivery to retailers in Louisiana and southeastern Texas.

Source: Salmonella Uganda Outbreak Sparks Hog Head Cheese Recall | Food Safety News

Salmonella is a serious foodborne illness that can cause a variety of problems in an individuals’ digestive tract.  Anyone who has this product should definitely not eat it. 

Politics

Senate Democrats Working On judicial vacancies

Opponents of the civil justice system have a great plan on how to deny victims their day in court.  First, force victims into federal court.  Second, make sure there are so many judicial vacancies that plaintiffs have months and year long delays.

Senate Democrats are at least working to fix the second prong of the plan:

Five federal judicial nominees got a nomination hearing Wednesday before the Senate Judiciary Committee, a sign that Democrats will continue to push aggressively to reduce the historically high number of vacancies on the federal bench.

. . . . "President Obama is the first president in decades who ended his first term with more vacancies than when it began, and the first since Woodrow Wilson to complete a full first term without having a nominee to the D.C. Circuit confirmed," Leahy said in prepared remarks.

Source: Senate Democrats Moving Quickly on District Court Nominees - The BLT: The Blog of Legal Times

One wonders of course what vacancies will pop up in the Supreme Court, and how Obama will fill them.

Medical Malpractice

What should never happen actually happens 80 times a week

In the medical profession, a “never event” is something that should never happen.  Doctors have to make judgment calls every day, and sometimes those judgments will be wrong.  Every wrong judgment is not medical malpractice.  But a “never event” is not a bad judgment call.  It’s blatant medical malpractice, no matter how you slice it.  And a new study claims it happens 80 times a week:

About 80 times each week, U.S. patients undergoing surgery experience mistakes that safety advocates say never should happen.

The types of errors being made: Surgical instruments such as sponges are unintentionally left behind in the patient; a wrong procedure is performed; a wrong surgical site is operated upon; and surgery is done on the wrong patient altogether.

Source: Surgical errors: In ORs, "never events" occur 80 times a week - amednews.com

The study offers a number of disturbing statistics and conclusions.  What’s even more disturbing, but not discussed in this article, is the fact that legislatures around the country are trying to find ways to make it harder for patients who were victims of never events to file a medical malpractice lawsuit.

Medical Malpractice

texas tort reform punishes double amputee

Connie Spears had to have both of her legs amputated after doctors ignored her past history of blood clots and sent her home despite her symptoms of severe leg pain.  Despite what to many medical professionals appears to be a clear cut case of medical malpractice, Connie Spears finds no justice in Texas.  Why?  Because of laws passed in 2003:

The huge tort reform package that Texas lawmakers approved in 2003 capped noneconomic damages that a plaintiff could receive for medical malpractice at $250,000 and set a “willful and wanton” negligence standard — interpreted as intentionally harming the patient — for emergency care. It also required plaintiffs to find a practicing or teaching physician in the same specialty as the defendant to serve as an expert witness and to demonstrate evidence of negligence before a trial. Under the strengthened rules, if plaintiffs fail to produce adequate expert reports within 120 days of filing their cases, they are liable for defendants’ legal fees.

Source: Even With Counsel, Texas Amputee Is Hindered by State Tort Laws - NYTimes.com

The creation of a “willful and wanton” standard was supposedly a mechanism to prevent frivolous lawsuits from hurting doctors who made the wrong choice in a time of crisis.  Instead, it protects doctors who do anything short of purposely hurting their patients.

The real reason Texas passed the tort reform that it did had little to do with any lawsuit crisis in the medical profession.  Instead, this law rewarded Republican campaign contributors and financially hurt trial lawyers, which are traditionally a group of Democratic campaign contributors.

Thanks to gerrymandering the Republican majority in Texas is not in danger of disappearing any time soon.  And because of that, neither is the oppressive medical malpractice package it put into place ten years ago.

Hip Implants

FDA May require more information from metal-on-metal hip makers

Once again, the FDA arrives late to the party:

Jan 17 (Reuters) - The U.S. Food and Drug Administration has issued a proposal calling on companies that make all-metal hip replacements to provide additional information proving they are safe and effective before being allowed to continue selling them.

The move follows years of concern within the medical community over the metal-on-metal implants, which the FDA said on Thursday can cause soft-tissue damage, potentially leading to further surgery to replace the devices.

Source: UPDATE 1-FDA moves to tighten controls on all-metal hip implants | Reuters

Recall of course that trial lawyers have for years been filing lawsuits against the makers of metal-on-metal hips.  DePuy, for example. faces over 2,000 lawsuits from individuals who received DePuy ASR hip implants that may be defective.

Yaz

Yaz Lawyer Blog Has Been Updated and Redesigned

My Yaz lawyer blog, www.findtherightyazlawyer.com, had gotten a little long in the tooth.  So I updated it and added some fresh content for October 2012 regarding Yaz lawsuits and Yaz settlements.  Here's a taste:

As of October of 2012, Bayer has settled close to 2,000 Yaz lawsuits for close to $500 million dollars. Bayer has set aside hundreds of millions more to settle the roughly 12,000 Yaz lawsuits currently pending.

. . . .

The average Yaz settlement has been about $212,000 to date. Some women receive more, and some women receive less, but that depends upon the extent of the injuries suffered. We are happy to discuss the settlement range with you if you think you may qualify for a Yaz settlement.

Check out the site if you'd like to know more about Yaz lawsuits and settlements.

Yaz Injury Lawsuits Settling - Clots, Deep Vein Thrombosis, Pulmonary Embolism

I'm a a Yaz lawyer who may be able to help women who were injured while taking Yaz.  Bayer is settling cases for women who suffered certain types of injuries while taking Yaz or Yasmin.  I'm particularly interested in speaking to any woman who was hospitalized while she was taking Yaz due to a:

Blood Clot;

Deep Vein Thrombosis;

Pulmonary Embolism.

You can e-mail me directly at justinian@justinian.us, or you can call me toll-free at my Yaz law firm at 888-315-3997. 

Asbestos Legal Journal Launches Asbestos Timeline

In my day job, I'm an asbestos and mesothelioma lawyer.  As part of that job, I have to keep track of the various significant events related to asbestos and mesothelioma.  I have a database of hundreds of scientific articles, corporate studies, etc. that track the development of the knowledge that asbestos is harmful.

I've decided not to keep that stuff bottled up and locked in a vault anymore.  So I'm proud to announce the asbestos timeline.  If you'd like to learn about the science behind asbestos sickness, visit the timeline and start reading.

It's got about a dozen entries now, but that's just in the first week.  You'll see five to ten fresh entries each week from here on out.

Zoloft Birth Defects

Zoloft Birth Defect Lawyer - Now Reviewing Cases

Zoloft Birth Defect Lawyer Justinian Lane is currently reviewing potential Zoloft lawsuits on behalf of women who took the drug Zoloft (Sertraline) while pregnant and gave birth to a child with certain types of birth defects.

“Numerous studies from across the globe have shown that taking antidepressants such as Zoloft increase the risk of giving birth to a child with serious health problems,” said Lane. Lane was referring to a variety of studies that link the class of antidepressants known as Selective Serotonin-Reuptake Inhibitors (SSRI) to an increased risk of birth defects. Those studies have linked the following types of birth defects to use of SSRI drugs such as Zoloft during pregnancy:

 Cleft Palate

Cleft Lip

Craniosynostosis

Anencephaly

Club Foot

Prsistent Primary Pulmonary Hypertension of the Newborn (PPHN)

Septal Defects

Atrial Septal Defects (ASD)

Vntricular Septal Defects (VSD)

Pulmonary Valve Stenosis

Tricuspid Valve Stenosis

Aortic Stenosis

Transposition of the Great Arteries

Other Defects

Omphalocele

Autism Spectrum Disorder

Gastroschisis

According to Mr. Lane, the list above is not a complete list of every type of birth defect that Zoloft could cause. “I’m interested in speaking to any woman who took Zoloft while pregnant and who gave birth to a baby who wasn’t perfectly healthy,” said Lane.

Many Zoloft lawsuits have already been filed on behalf of women who gave birth to babies with defects associated with the use of Zoloft. The Zoloft lawsuits have been centralized in the United States District Court for the Eastern District of Pennsylvania before Judge Cynthia Rufe. Mr. Lane believes that “the centralization of all Zoloft lawsuits before Judge Rufe offers many advantages for the families of children born with Zoloft birth defects.” Chief among those advantages is the ability for defective drug lawyers like Mr. Lane to pool their resources against Pfizer, the manufacturer of the drug Zoloft.

Zoloft attorney Justinian Lane is the managing attorney of the pharmaceutical division of the award-winning law firm of Ketterman Rowland & Westlund in San Antonio, Texas. He has published additional information about Zoloft and birth defects at his Dangerous Drugs legal journal. He may be contacted directly at justinian@dangerousdrugs.us or via telephone at 888-315-3997. Lane welcomes contact from the parent of any child who may have been harmed by Zoloft. “If your child was born with a birth defect and you’re not sure if Zoloft is to blame, give me a call or e-mail me. I can either help you get justice or give you the peace of mind that Zoloft is not to blame,” said Lane.

Topamax Birth Defects

Topamax Birth Defect Lawyer - Now Reviewing Cases

I'm now reviewing Topamax birth defect cases.  Especially those cases in which a child was born with a cleft lip or a cleft palate.  These injuries have been linked to the usage of Topamax during pregnancy.  The FDA has recently issued an advisory regarding the usage of Topamax while pregnant.

Other birth defects linked to Topamax are spina bifida, genital defects, and low birth weight.  These birth defects were 11 times more likely to occur when the mother took Topamax than when the mother did not.

Contact me using the contact form above, or e-mail me at justinian@justinian.us if you'd like to discuss your potential Topamax birth defect lawsuit.

New Asbestos Website Launched

I've recently launched the Asbestos Legal Journal.  It is a blog about asbestos and mesothelioma lawsuits written from the perspective of a plaintiffs' lawyer.  I'll be blogging about  my day-to-day experiences working on asbestos lawsuits, as well as detailing the history of asbestos litigation.  I'm particularly excited to have a place where I can share the thousands of damning documents that show just how little asbestos companies cared about the people they killed.

I'm also going to be creating a very detailed timeline of asbestos that dates all the way back to ancient Rome.  The timeline will be complete with citations to scholarly articles and other resources to back up any allegations I make.  The story of asbestos hasn't yet been properly told on the web, and I hope to change that.

If you've got any questions about asbestos, mesothelioma, or lawsuits relating to either of those, feel free to contact me.

Misc. Products

Female Floridians File Frivolous Four Loco Lawsuit

I’m a plaintiffs’ product liability lawyer.  I’m therefore generally on the side of those who are injured by defective products.  But this lawsuit epitomizes a frivolous lawsuit:

Janice Rivera, 20, was ejected from a car on State Road 417 in an Aug. 13 crash in Seminole County. The driver of the car, Danielle C. Joseph, 20, who is also named a defendant in the suit, drank the energy drink Four Loco before she struck another car while driving at a high rate of speed.

Source: Woman sues over 'blackout' drink - News

So, an underage girl illegally consumes some Four Loco.  She then drives at a high rate of speed while under the influence of an alcoholic beverage.  Her underage passenger is injured and sues the manufacturer of the drink. 

I’m probably a bit more pro-plaintiff than your average juror, and even I think that Four Loco shouldn’t pay a dime here.  For one thing, the driver who consumed the beverage was underage and thus illegally consumed the beverage.  That alone should absolve Four Loco of any liability. 

The case is even worse if the passenger knew that the driver had been drinking.  If you voluntarily step into a vehicle that’s being driven by someone you know has been drinking, you’re an idiot.  And juries don’t like to give money to idiots. 

Four Loco, which is premixed with the stimulants taurine, guarine and caffeine, are made to appeal to younger drinkers because "it tastes more like a soft drink than an alcoholic beverage," Rivera's lawsuit states.

* * * *

"The presence of stimulants in an alcoholic beverage is a dangerous and potentially fatal combination," the suit states. "Because the consumer will engage in dangerous behavior such as driving because he or she will not feel intoxicated."

With respect to the first point about flavoring: Lots of (gross) people like to mix Red Bull with Vodka.  Should Red Bull be held liable under the same theory?  After all it’s reasonably foreseeable to Red Bull that someone will slam one back with a few shots of Vodka.  And let’s not forget that Coke (or Pepsi) contains stimulants.  People have been drinking Rum/Whiskey/etc. & Coke for years.

The second point about stimulants preventing people from feeling intoxicated is going to be problematic.  Is there any reliable scientific evidence to back that up?  Have their been any peer-reviewed studies to support it?  “Feeling” drunk is obviously subjective and will thus be difficult to prove.

The first and second points imply that alcoholic beverage manufacturers are supposed to make awful-tasting drinks that make you feel intoxicated.  I’m not aware of any legal authority that supports that implication.

My prediction:  This case will not survive summary judgment.  If it does survive summary judgment, I’ll buy the plaintiff’s lawyer a drink.

Drugs & Medical Devices

DePuy Hip Replacement Lawsuits Are Going To Be Big

I spent several hours last week reviewing the evidence surrounding the DePuy ASR and ASR XL hip recall, and I've come to the conclusion that these are going to be great lawsuits from a damages perspective.

Some people who received recalled DePuy hip replacements have had to undergo multiple hip replacement surgeries.  The medical bills alone from those surgeries are probably going to be close to six figures.  On top of that, the DePuy hips can cause cobalt and chromium metal shavings to enter the bloodstream.  This in turn can lead to muscle necrosis, which is irreversible. 

A worst-case scenario is that bone and muscle decay is so extreme that a patient cannot be fitted with another hip replacement.  If that happens, a person may become unable to walk.  Considering that the market for DePuy ASR hips was younger, more active people, the damages may be quite large.

I'm working right now on putting up a De Puy hip lawyer website to share some more of the information about the ASR hips that I've discovered.  And of course, if you'd like more information, feel free to contact me directly.

Verdicts & Settlements

Los Angeles Juries Aren’t Always Pro-Plaintiff

Generally speaking, California is where a plaintiff is best off bringing a product liability lawsuit.  But not always, as shown by this defense verdict in a case against a helmet manufacturer. 

Lawyers for Richard and Kandy Eubanks had asked for $18 million in damages, most of it for the future lifetime care of their 20-year-old son, Justin, who was 17 at the time of the crash.

* * * *

He was traveling 20 to 30 mph when he was hurled over the handlebars and his bike landed on top of him, causing his helmet to crack, according to the suit filed a year after the crash. His parents maintained the plastic SixSixOne Flight model was defective and that KBC gave insufficient label warnings concerning its protection capabilities.

According to Johnson, a stronger material like carbon fiber could have made a difference for Eubanks. But he said KBC used plastic because it was less expensive.

Source: Jury rejects parents' lawsuit against helmet maker - ContraCostaTimes.com

The plaintiffs apparently brought claims under both design-defect theories and failure-to-warn theories.  The jury rejected both theories, and found in favor of the helmet manufacturer.  One thing I would like to know is the cost difference between a carbon fiber helmet and a plastic helmet.  I know that at one point in time carbon fiber was extremely expensive, but I’m not sure if it still is.  If it is substantially more expensive than plastic, the jury may have rightly found that plastic was a permissible design.

One thing that the article discusses is that the helmet meets all federal standards.  Defendants often argue that if their product meets federal standards, it is automatically safe.  I disagree, and here’s why: Every automobile, drug, or medical device that has ever been recalled initially met a federal safety standard.