Accident and Injury Lawyer Blog

I’ve previously written about my concerns of courts letting procedure prevail over substance in personal injury cases - usually in favor of the defendant. Last week, the Minnesota Court of Appeals handed down a case that underscores this problem in Bothun v. Martin LM, a medical malpractice lawsuit brought by the decedent’s surviving husband.

In 2008, a woman was diagnosed with an abdominal aortic aneurysm that required surgery. Before undergoing the necessary surgery, decedent began a regimen of blood thinners and had stents inserted into her heart. In January 2009, decedent had surgery. During the procedure there was a 32-minute loss of blood to her kidneys due to renal ischemia and transient hypotension. The patient was discharged five days after the surgery and no further complications were reported. In fact, her husband reported that she looked healthy when they were leaving the hospital. All seemed well.

Less than 24 hours later an ambulance rushed the decedent to the hospital and she was pronounced dead following CPR and other emergency procedures. The attending nurses reported that the decedent's condition changed in a matter of minutes while they were deciding on a course of action for her care.

Decedent's husband brought a wrongful death action alleging ordinary negligence as well as corporate liability on the part of the hospital (decedent received surgery and emergency care at the same facility). In support of the wrongful death case, the decedent's surgeon gave expert testimony explaining what most likely happened to plaintiff leading up to the emergency room, and how a different treatment plan would have most likely saved her life. (Not for nothing, the Minnesota Department of Health also found that there were various acts of negligence leading up to decedent's death.)

But the hospital got out on a motion to dismiss, finding the surgeon's testimony to be conclusory. Under Minnesota law, an affidavit in support of a medical malpractice case must identify the expert who will testify, the substance of that testimony, and provide a summary of the basis for the expert's opinion. Failure to provide these things mandates dismissal with prejudice.

The surgeon's testimony ran afoul because it jumped to the conclusion that there was negligence rather than explaining the how and why in the chain of events that resulted in death. The district court found that because the cause of death was unknown (the surgeon gave three likely scenarios) that is was impossible to conclude that specific earlier medical attention would have prevented death. The appellate court found this court assumption to be erroneous.

For personal injury lawyers, the take home message is clear: don't take a case unless you know how to get an expert's testimony in at trial. A medical malpractice case is just not like any personal injury case. I hate to say this but the plaintiffs may have a legal malpractice case they should consider investigating.

Robotic Surgery Not Needed for Most Procedures?

A recent study has raised additional questions about the need for robotic assisted surgery in many cases. The research suggests that the da Vinci surgical robot should be reserved for procedures that are much more complicated, and that cannot be easily handled by laparoscopic surgery.

At the American Congress of Obstetricians and Gynecologists' annual meeting, researchers from St. Lukes-Roosevelt Hospital Center reported that 10% of patients operated on through robotic surgery for pelvic lesions suffered major postoperative complications, compared to 7% of those who underwent laparoscopy. Patients are more likely to suffer complications, pay more, and are under the knife longer than patients treated through laparoscopic surgery.

The da Vinci Surgical System, first introduced in 2000, is controlled by a surgeon looking at a virtual reality representation of the patient's internal organs and manipulating its four metal arms with hand and foot controls. Use of the surgical robot has increased dramatically throughout the United States.

Continue reading "Robotic Surgery Not Needed?" »

The U.S. Consumer Product Safety Commission (CPSC) has announced the recall of Deezo Children's Hooded Sweatshirts with Drawstrings.

Approximately 560 boys and girls zip-up hoodies are being recalled as the sweatshirts and jackets have drawstrings through the hood which pose a strangulation hazard to young children.

Sold on the Zulily website from August 2012 through March 2013, the following model numbers are affected:

12501, 12502, 12503, 12504, 12506, 12507, 12508, 12509, 12801, 12802, 12803, 12804, 12806, 12807, 12808, 12809, and 12810.

The model numbers are located on the care label sewn into the garments side seam.

No reports of injury have been received.

A lawsuit filed by the mother of a toddler injured at a Virginia hotel has settled for $10.9 million dollars.

Tragic story here. Days prior to his third birthday, a toddler fell through the railing of a second-floor hotel walkway where a railing spindle was missing, suffering permanent brain injuries.

The attorneys' fees and unpaid medical bills are reported to be about $3.9 million dollars. The rest will be paid to the boy through a payment plan and special trust.

The Indiana high court ruled on Monday, agreeing that plaintiff's claim in bike accident case should be dismissed against a local municipality because there is no liability if you get drunk and hit a pothole. I gotta tell you, I'm a personal injury lawyer but I have to agree with that one.

Plaintiff drove rode his bicycle to an Indianapolis bar and hung out long enough to get legally drunk. He drove home on the left side of the street, a violation of Indiana law, a hit a pothole on a downhill slope traveling at least 20 miles an hour. He suffered some injuries and was taken to the hospital, where his BAC was measured at .13.

No, I have no idea why I'm writing about this case. It is probably because I have a pro defense position which allows me to underscore my impartiality. But this was a crazy case.

I'm amazed this guy could find a lawyer to bring his case. I'm also amazed someone would appeal this case. But they did find someone.

You can find the opinion in Komyatti vs. The Consolidated City of Indianapolis-Marion County and Citizens Energy Group here.

A New Jersey state court gave Novartis a defense verdict in a jaw injury lawsuit in this mass tort claim.

The issue in this cases is largely about warnings: what did Novartis have to communicate to doctors about the risks of Zometa with respect to osteonecrosis of the jaw (ONJ). The jury, by a vote of 7-1 vote, said Novartis provided an adequate warning.

No matter how you slice these cases, they are tragedies. The plaintiff in this case was prescribed Zometa to protect her bones after breast cancer. Then, she developed ONJ. Just awful.

Domestic USA has announced the recall of its 9100 Power Awnings, Weatherpro Awnings and Motor Service Kits.

It has been determined that if an important step was bypassed in the installation of the power awnings, it could potential damage the awning's motor. If damage occurs, the awning can unfurl unexpectedly while the coach or vehicle is at rest or in transit.

This recall affects only the power awning products manufactured between February 13, 2013, (306xxxxx serial #) through April 9, 2013 (314XXXXX serial #). 27,098 affected units have been identified. The serial number appears on a label on the right underside of the fabric and on the roller tube. On the power awning field Motor Service Kit, the serial number appears on the end cap of the shipping tube.

End-user consumers who believe they may be affected by this recall can call for specific instructions on how to make the determination or obtain a repair by calling 1-888-943-4905.

Another Toro Recall

The Consumer Product Safety Commission (CPSC) has announced the recall of approximately 3,700 Toro Z Master Riding Mowers (and about 60 in Canada) as the idler pulley can rub against the mower's fuel tank, posing a fire hazard. Toro has received six reports of this incident, though no reports of injuries have been received.

Affected by this recall are the 2013 and 2013 Toro Z Master Commercial 2000 Series ZRT riding mowers. The following models and corresponding serial numbers are included in this recall:

• Model Number 74141 with serial numbers ranging from 312000101 to 312000784 and 313000101 to 313000364
• Model Number 74143 with serial numbers ranging from 312000101 to 312000881 and 313000101 to 313000432
• Model Number 74145 with serial numbers ranging from 312000101 to 312001178 and 313000101 to 313000443

You may remember that Toro recalled approximately 2,600 units in November 2012 for a separate fire potential hazarad.

Plaintiffs – 1, Abbott – 0. The first Humira lawsuit filed against Abbott Laboratories results in a huge win for the good guys.

Big Humira Verdict

This week, a Chicago jury awarded $2,244,063.20 to a man on behalf of his wife. After taking the TNF blocker, Humira, for close to seven months, she began experiencing chest pain and fevers. Undiagnosed for weeks and close to death, she was eventually diagnosed with Humira-induced disseminated histoplasmosis, a severe, life-threatening infection.

Despite the FDA having issued an alert in September 2008 to all manufactures of TNF blockers, including Abbott Laboratories, to provide new information to the medical community about the risks of unrecognized, drug induced histoplasmosis, Abbott failed to do so for 20 months, ten days after the Plaintiff's wife was hospitalized.

There have been reports of serious side effects that have caused problems for Humira users. Humira may increase the risk of nerve damage, cancer, and fungal infections. Plaintiff's Humira lawsuits allege that Humira was negligently developed, produced, and manufactured and, in many states, Abbott is strictly liable for the harms caused. Still, Humira remains very popular.

Not many lawyers have been high on these Humira lawsuits. That could change. Quickly.

If you think you or a loved one has been hurt by Humira, we can give you more information about whether you may have a claim. Call 1-800-553-8082 or click here for a free no obligation Internet consultation.

• Arthritis Drugs Causing Cancer?
• Update for Tumor Necrosis Factor (TNF) Blockers
• Humira and Cancer
• Is Cancer a Remicade Side Effect?

More Potential Issues with the da Vinci Surgical Robot

Intuitive Surgical, maker of the da Vinci surgcal robot, has issued an "urgent medical device notification." They are announcing that certain -09 and -10 versions of the MCS instruments may develop micro-cracks near the distal (scissor) end of the shaft following reprocessing. The micro-cracks may create a pathway for electrosurgical energy to leak to tissue during use and potentially cause internal burns.

The following products are affected:

• Part Number: 420179-09 and -10 Description: 8 mm Monopolar Curved Scissors (Hot Shears)
• Part Number: 400179-09 and -10 Description: 8 mm Monopolar Curved Scissors (Hot Shears)

The company has issued a statement claiming that with more than a million surgeries to date, there has been no confirmed evidence of patient injury attributable to this issue.

Okay, fair enough. But lots of other injuries have been caused by the de Vinci robot and this is just one more example - as if we needed another one - that this product was just not ready for the market.

This is technically not a recall. Someone explain to me why it is not considered a recall? I bet the FDA weighs in or it at some point with a different view.

If you believe that you have been injured during a da Vinci robotic surgery, call us toll-free at 1.800.553.8083, or online.

Learn More About da Vinci Lawsuits

• Da Vinci Robotic Surgery Complications
• da Vinci Surgical Robot Lawsuits
• daVinci Robotic Surgery Claims

Target will recall 148,000 lasagna pans. What could possibly be wrong with a lasagna pan that would lead to a recall? Good question. Apparently, it was discovered that the pans can crack and break pretty easily, creating sharp edges that could cause the user to cut themselves. Not the next great class action lawsuit, to be sure, but certainly not a risk you want in your kitchen. The products were sold at Target stores and online from January 2009 to October 2012.

A widespread air bag recall announced last month affecting 3.3 million Hondas, Toyotas, and Nissans has been broadened to include BMW as well.

BMW has announced that they will recall approximately 42,000 of its 2002-3 3 series models because a passenger side air bag defect could send shards of metal into the passenger compartment. Gee, that sounds pretty unsafe.

Another recall announced, General Motors has announced that it will recall about 43,000 2012-13 vehicles with its eAssis fuel-economy system for a control module problem that could cause engine stalling and trunk fires. The recall covers the 2012-13 Buick LaCrosse and Regal and the 2013 Chevrolet Malibu Eco with eAssist, a mild hybrid setup that stops and starts the engine in an effort to save fuel. There have been two reports of fire to date.

• Toyota Recalls 420,000 Models for Possible Steering Flaw
• Hilander Recall
• Prius Recall
• Toyota Panel Looks at Recalls
• Toyota Tundra Recall
• Highlander/Rav4 Recall
• Toyota Recall: Floor Mats and Pedals
• Toyota Acceleration
• Toyota Sienna Recall