Accident and Injury Lawyer Blog

• John Cord provides a status on the pain pump litigation before today's MDL hearing. One more MDL hearing also in San Diego today: class certification for Toyota owners. Hey, I'm in the class! Over $20 bucks on the line for me I'm sure. Apparently, the national and international media is camped out in front of the courthouse.
• John Bratt discussed a new Georgia Supreme Court ruling on damage caps
• A class action against Ford Motors stalls in Maryland.
• Cooper Tire is going to appeal the $33 million verdict in took in Iowa (TireBusiness.com)
• John Hochfelder reports on a big verdict in New York
• The Mississippi Injury Lawyer Blog offers a video link underscoring how unreasonable damage caps are on serious malpractice and accident injury victims.

There is a recall of Infantino baby slings after three babies died in the carriers. The recall involves over 1 million Infantino "SlingRider" and "Wendy Bellissimo" baby slings. Apparently, the babies are suffocating in the soft fabric slings.

There is a particular risk of death from these baby slings and probably from baby slings in general for infants that were born prematurely, had a low birth weight, or have breathing issues. Personally, I think the take home message is to stop using baby slings all together.

This recall comes on the heels of the Consumer Product Safety Commission's safety alert warning parents that babies under 4 months old should not ride in sling carriers because of the suffocation risk. The safety alert did not name Infantino but this recall is specifically addressed to Infantino baby slings.

One difficult issue medical malpractice lawyers in Pennsylvania, and all over the country, have is finding medical experts willing to testify against another doctor who has negligently injured a patient. The doctor has to be: (1) real world qualified, someone who the lawyer believes can speak to the issue authoritatively; (2) qualified in the eyes of the court; and (3) have the ability to effectively communicate all of this to a jury.

A Pennsylvania Superior Court found that in a recent opinion that plaintiff's malpractice lawyers did not meet the second prong of the test in a case involving a man who suffered a severe hematoma that formed outside an arterial wall of his brachial artery. After surgery to repair the condition, he lost the strength in his grip, and suffered nerve damage. The ER doctors are named in the malpractice lawsuit because the patient kept calling and returning to the ER but did not get appropriate follow-up care.

Plaintiff's malpractice lawyer submitted a certificate of merit from a neurologist and surgeon at Allegheny University Hospital and Temple University Hospital. But the court found that while the expert was a qualified neurosurgeon, he had insufficient training to testify about emergency room procedures.

Tough loss for Plaintiff.

• Medical malpractice lawsuits: an overview
• Sample certificate of merit
• Expert qualifications opinion in Maryland

Seroquel defense lawyers notched another win yesterday, winning a jury verdict in New Jersey state court after a month long trial.

AstraZeneca statement after the trial is telling:

In case after case, jurors, judges and even plaintiffs' lawyers themselves have found that plaintiffs simply cannot show through any accepted scientific method that AstraZeneca is responsible for their alleged injuries.

In the cases that have been prepared for trial to date...the facts show that the plaintiffs either already had diabetes or had so many pre-existing risk factors that they were already at a significantly increased risk of diabetes before they first took Seroquel.

This statement is actually true. But what is telling is what the statement does not say. It does not say that AstraZeneca did not bury studies or that the clinical trial data does not show that Seroquel causes diabetes. It does not say AstraZeneca was not negligent. What it says is that in individual Seroquel lawsuits, the company’s argument on individual causation has been successful. But this is just one case. Winning one trial against a carpetbag plaintiff (he was from Louisiana) does not speak to how many valid claims there are in the remaining 10,000+ cases. A lot of baseball teams are going to start the year at 1-0. But they shouldn’t start printing playoff tickets quite yet.

Clearly, there are many other claims against AstraZeneca that are pending where liability will not be proven. But if even half of the remaining claims can be proven and the company does not take the clear opportunity it has for a favorable settlement, the $650 million spent to date defending Seroquel lawsuits is going to seem like a modest down payment and the verdicts against Seroquel are going to start piling up.

Admittedly, it does not feel this way because of the rapid succession of Seroquel lawsuit defense victories on summary judgment and now this trial, but this may only be Chapter 5 of the Seroquel litigation.

According Public Citizen, a nonprofit watchdog group, medical malpractice lawsuit related costs continue to decline. This is bad news for those who continue to try to include malpractice reform into the "Soon to be passed, no really, I'm serious this time" health care bill. The report, titled Medical Malpractice Payments Fall Again in 2009, shows the downward trend in malpractice payouts. According to Public Citizen:

• 2009 had the lowest number of payments in the 20 year history of the National Practitioner Data Bank.
• Mirroring the Congressional Budget Office's findings, medical malpractice litigation's share of overall health care costs dropped to 0.46%.
• In the last ten years, health care spending rose 83%, while medical malpractice payments actually fell 8%.

Public Citizen also dropped another bombshell that, if true, is just stunning. It said that the hospital rating company HealthGrades estimated in 2004 that more than 190,000 deaths in the United States are caused by medical errors. This doubled the famous IOM study's finding of 99,000 deaths in 1999.

There were 3,537 payments made in medical malpractice wrongful death cases in 2009. This tells us that the problem is not malpractice lawsuits but medical errors. The real way to continue to decrease the costs associated with medical malpractice is get rid of bad doctors, support the good ones (which is the vast majority), and find ways to find new ways to decrease the incidence of medical errors.

A woman who filed a medical malpractice lawsuit after surgery for a broken leg left her partially paralyzed was awarded $19.2 million last Friday in Chattanooga, Tennessee. The jury also awarded a $3 million verdict for her husband.

The verdict was against a surgeon, an anesthesiologist, a nurse anesthetist and Cumberland Healthcare Group, a group of 18 medical providers practicing in family medicine, pediatrics, anesthesiology, and orthopedic surgery.

Honda Motor Co. announced it will recall more than 400,000 2007 and 2008 Element small trucks and Odyssey minivans because of braking system problems that could make it tougher to stop the vehicle if not repaired.

Brake pedals on these vehicles can "feel soft" and, according to Honda, must be pressed closer to the floor to slow the vehicle. If unfixed, Honda says the problem could cause a car accident because of the loss of braking power.

Maybe Honda is largely out in front of the problem. The National Highway Traffic Safety Administration has reported three minor car accidents from braking problems associated with this recall. Still, accidents from braking problems are rarely reported in part because no one believes the drivers who claim their brakes fail.

So Honda owners should rush out and get their brakes fixed? Of course. But there is a problem: the replacement parts have not arrived at Honda dealers yet. But if you are having braking problems now, you will be first in line. I suggest calling your dealer although my guess is the hold times are going to be unreal.

This is the second Honda recall in the past two months. Last month, Honda recalled 952,118 vehicles for air bag problems. My how Honda and Toyota - the golden children of the car industry - have fallen. I wonder if this will stick on them.

A personal heads up to Honda owners who take their vehicles in for the recall: I took my Toyota in today for its recall and lo and behold, the dealer recommended about $300 in repairs for a cabin filter, alignment, and some issue with the battery that I still don't understand. They also suggested it was time to rotate my tires although this was just done recently. Moral of the story: these dealers are going to make money hand over fist from this recall. I rejected all of the repairs out of principle (which might be cutting off my nose to spite my face, I don't know).

Boston Scientific has announced a massive medical device recall of its popular implantable defibrillators, retrieving the inventory of all its implantable cardioverter defibrillators (ICDs) and cardiac resynchronization therapy defibrillators (CRT-Ds).

Will defibrillator lawsuits come out of this? While defibrillators are a frequent source of lawsuits, I think the answer is no because I don't think anyone has suffered a meaningful injury as the result of this recall. But it is hard to say because Boston Scientific is not disclosing what manufacturing process change they made or how long it might be before they return to the market. Not an encouraging sign for an industry that, as this Bloomberg article points out, has been difficult to trust.

I can't help but wonder if the lack of transparency is going to alienate both doctors - who in a sense are the real consumer - and shareholders who have seen a fall in the stock price of BSX as a result of this recall.

• Medtronic lead recall
• Overview of Product Liability Claims
• Drug Recall Lawyer Commentary on Recall

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Last, week the FDA announced a black box warning on Plavix to alert doctors and patients that the drug may not work effectively in some patients. Plavix has been under a microscope for some time now for severe and life threatening side effects including heart attacks, strokes, gastrointestinal bleeding, thrombocytopenia, TTP blood disorders, and ulcers. A weaker warning about some patients being poor metabolizers of Plavix first appeared on the drug's label last May. Now the FDA is pushing a complete black box warning on Plavix. Often, for many drugs, a black box warning is a harbinger of a future withdrawal or a recall.

Plaintiffs' lawyers handling Plavix lawsuits would tell you this new warning is overdue. A New England Journal of Medicine study underscores these concerns about Plavix, finding that Plavix users were 12 times more likely than those taking aspirin and a heartburn pill to experience severe gastrointestinal bleeding and chronic ulcers. More research also indicates that taking Plavix with aspirin, as often prescribed, doubles the risk of stroke, heart attack and death in patients that have elevated cholesterol but with no significant history of heart disease.

The FDA further suggested to doctors that they should consider another anti-clotting drug for patients who are found through genetic testing – which is available - to be poor metabolizers of Plavix. It is worth underscoring that being a poor metabolizer of Plavix is not a rare thing. A study done at the University of Maryland found that approximately one-third of the population may have this gene variant that would limit the efficacy of Plavix. The new label does not go quite this far but does warn that normal doses of Plavix have a potentially deadly lack of effect in 2% to 14% of patients.

Plavix lawsuits claim that the makers of Plavix concealed the risks associated with Plavix and that many doctors would never have prescribed Plavix if the true level of risk had been properly divulged. This new black box requirement underscores how this warming should have read.

If you have suffered any of these injuries that you suspect may be linked to Plavix, contact us today at 800-553-8082 or get a free Plavix case evaluation with an attorney who can help you understand your legal rights and options.

DePuy Orthopaedics is "removing" its DePuy ASR metal-on-metal hip replacement system that reportedly has a high failure rate. Our lawyers are now investigating potential DePuy hip replacement lawsuits around the country.

What is frustrating for many is that these hip replacements were not recalled long ago. The high failure rate of the Depuy ASR hip replacement was well documented in Australia to the point where it was taken off the Australian market last year. The whole industry has been misfiring it seems: there are also lawsuits pending against Zimmer and Stryker.

The F.D.A. has received about 300 complaints on the Depuy ASR hip implant involving patients in the United States who received it since 2008. The vast majority of patients who received ASR hip implants had to have the device replaced, forcing the patient to endure another difficult surgery.

There has not been a DePuy ASR hip class action lawsuit filed. (Update: there has since this post was written. Click here for more information. ) Information on these potential hip replacement claims are coming in very quickly. If you have a potential hip replacement lawsuit, call 800-553-8082 or get a free on-line consultation.

• More information on DePuy ASR lawsuits
• New York Times Article
• Depuy Demandas en Espanol

So many lawyers are putting up information on Yaz lawsuits it has become difficult to find meaningful current information on the status of these claims. Our Yaz lawsuit update provides up-to-date information on the latest development in the Yaz lawsuits.

One frustrating issue personal injury lawyers must deal with is assignments and authorizations which often require clients to sign away substantial rights to get the medical treatment they need.

This is a sample assignment and authorization from Florida that really cuts off substantive rights to the client. But the problem is that the client who signs an assignment and authorization placing a lien on their recovery typically does not have health insurance to get the needed medical treatment. So what choice does the client really have?

I am not, by the way, suggesting that doctors should not have a right to get placed in line ahead of personal injury plaintiffs in exchange for medical treatment (or to delay filing a lawsuit for payment). I just object to the one-sided unbalanced nature of most assignments and authorizations that my clients are required to sign.

There is a Poligrip recall in Japan for all of their denture cream products containing zinc. In the United States, there has not been a Poligrip recall per se but Glaxo has "discontinued" selling Super Poligrip. I'm not sure what the difference is between a Poligrip recall and discontinuing selling Poligrip except that it allows a lawyer to eventually ask the judge in a lawsuit that plaintiffs' lawyer not refer to any Poligrip recall because there was no recall.

Not everyone who has used Poligrip is necessarily going to be entitled to money damages in a lawsuit. Our law firm is accepting inquires only from patients who have suffered a meaningful injury from excessive zinc. Symptoms of zinc poisoning include lack of coordination or difficult maintaining balance, numbness, tingling or weakness in the hands or feet, difficulty walking, pain or loss of sensation, and/or paralysis.

If you are considering filing a Super Poligrip lawsuit because of the injuries you have suffered as the result of excessive zinc, call 800-553-8082 or get a free on line consultation.

Target is a defendant lawsuit in Pennsylvania with unimaginable facts: a wicker trunk bought at Target and used as a toy chest trapped a child's neck, cutting off her causing spastic quadriplegia, severe psychomotor mental retardation. If you are parent reading this and you did not swallow hard, you don't have a pulse. Just beyond awful.

The lawsuit claims Target should have warned about the risk and that the design of the product was defective: it should have had a lid support on the chest.

Strong allegations from Florida: a class action nursing home lawsuit claims a Lake Worth nursing home that a engaged in scheme to defraud Medicare and Medicaid and "prey on vulnerable adults."

The lead plaintiff seeks a class action after injuries frequently the subject of nursing home lawsuits: disfiguring ulcers on her heels. The nursing home denies liability but has asked a law firm to investigate the allegations. The ole "I didn't do it but let me investigate whether I did it" plan of attack.

Lake Worth Manor has been a troubled nursing home. It has the lowest possible rating from Florida's Agency for Health Care Administration and has spent 31 days on Florida's watch list. The nursing home's co-medical director, who just stepped down from his position, has a history that, well, let's say it makes you think he should not be running a nursing home.

The lesson, as always: we have to many inadequate nursing home in Florida and throughout the country.

Allergan won a defense verdict in California in a Botox wrongful death lawsuit. The jury found that the warning on Botox adequately advises health care providers of the risks of Botox.

Botox is well known for its ability to provide relief - albeit short term relief - for those of us who suffer from wrinkles. You might expect the Plaintiff to be middle aged and probably a woman. But this case involved the off label use of Botox in the treatment of a seven year-old girl with cerebral palsy. Some believe that Botox helps fight limb spasticity that sometimes comes with cerebral palsy.

Plaintiffs' Botox lawsuit alleged that their daughter died as a result of an overdose of Botox, which led to respiratory failure and pneumonia. This is a classic product liability claim: Plaintiffs claimed that Allergan failed to adequately warn their daughter's pediatrician of the risks of Botox.

I do not know enough about these cases to give any sort of informed opinion. I fear off label uses of any drug, including Botox, but I also wonder whether the risks are small relative to the upside of providing an effective means of treating an awful cerebral palsy side effect.

Allergan gets just a brief rest: it faces another Botox lawsuit that is going to trial in Oklahoma City next month.

From experience, I can tell you that it is an odd feeling for a trial lawyer to settle a wrongful death case in the middle of a trial. It is a simultaneous feeling of joy for resolving the case and sadness from not letting the jury render a final judgment on why the victim died. This feeling was surely felt by a nursing home lawyer in Missoula, Montana who, after nearly a full week of trial, settled a wrongful death case out of court this week.

The details of this nursing home lawsuit were, sadly, not atypical. The family of an 87 year-old man alleged that two nursing homes acted negligently when they failed to provide adequate health care for the victim. The decedent fell and fractured his neck during a transfer from his wheelchair. This accident made him unable to walk which led to severe pressure ulcers which ultimately resulted in a fatal case of gangrene in his leg.