Archive for July, 2009

Recently, a series of lawsuits were brought against C.R. Bard, Inc. and Bard Peripheral Vascular Inc. on behalf of users of the Recovery IVC Filter and G2 IVC filter, both of which are produced, marketed, and sold by Bard, Inc. On June 9, 2009, a lawsuit was filed in the Superior Court of Arizona and on June 15, 2009 in federal court in New York. Plaintiffs in both cases are seeking damages as a result of defective use and life threatening injuries.

Since the IVC filters were first placed on the market, the medical community has been concerned with the permanent placement of these filters within the human body. It was believed these filters should only be within the body for a finite period of time and should be retrievable. The FDA, however, approved Bard’s Recovery IVC Filter System as a retrievable device, but one that was acceptable for placement for an indeterminate period of time. In 2003, published reports indicated the failure of the Recovery IVC Filter and patients experienced severe to fatal injuries as a result. The Recovery IVC Filters were found to fracture within the body and migrate to vital organs. Users of the defective IVC filters are now seeking damages for medical expenses, pain and suffering, lost wages, and more.  Read more about adverse side effects of defective IVC filters and Bard IVC Filter lawsuits.

Many studies are done on the side effects of drugs before they are released to the market to properly inform patients of the potential side effects.  However, these studies often do not incorporate studies on drug-drug interactions, which are the effect of using a particular medication in combination with several other drugs that a patient is already taking.  Not only can these medications cause their own side effects, they can have additional and sometimes irregular side effects when taken with other drugs.

In the United Kingdom, fifteen percent of its residents over 75 years of age take five or more drugs on a daily basis.  People in nursing homes take an average of six to eight medicines a day.  In the United States, forty percent of people over the age of 65 take five or more drugs on a daily basis.  The number of drugs prescribed to people is on a rise, especially in western European countries.  While the reasons for prescribing more drugs are done to effectively treat older people, there are sometimes other less respectable reasons, such as more drug marketing by drug companies disguised as “disease awareness” campaigns.  Often, drugs are not needed to treat these “diseases” and prescriptions written for these purpose are unnecessary and can even lead to dangerous interactions with other necessary drugs patients are taking.

Various studies show that about five percent of hospital admissions in Europe and the U.S. are due to adverse reactions caused by two or more drugs patients are taking.  In addition, five to ten percent of hospital patients have additional drug reactions when being hospitalized, resulting in prolonged stays and inevitably higher hospital bills.  Another unfortunate reality is that even with drugs that do not have any drug-drug interactions, the patient might stop taking a drug without informing the doctor, because all of the drugs they are taking have cumulative side effects that the patient wants to avoid.  Doctors may prescribe even higher and often unnecessary doses because they think the lower doses are not working.  In addition, doctors themselves are often not aware of the cumulative side effects that patients can have by taking multiple drugs, causing the patients to suffer any unnecessary side effects.

In short, some patient advocates argue that compliance with prescribed doses is a precursor to effective treatment but if you have adverse reactions or are concerned about them, consult your doctor or pharmacist.  If you are injured by a dangerous drug or think you are the victim of medical negligence, contact a medical malpractice lawyer.

Source: http://www.ft.com/cms/s/0/34019120-498b-11de-9e19-00144feabdc0.html

A class action lawsuit has been filed in federal court in California on behalf of individuals who used Hydroxycut products that were recalled by the FDA on May 1. The recall encouraged consumers to discontinue use of at least 14 different versions of Hydroxycut due to its adverse effects on the body, including liver damage, seizures, heart problems, blood toxicity and various other conditions, including a rare form of muscle damage known as rhabdomyolysis. Effects of Hydroxycut, which accounts for 90% in sales of weight loss products, are not only severe, but have already resulted in one fatality.

The lawsuit is the second Hydroxycut class action suit filed in the U.S. The claim alleges that the makers, Iovate, made fraudulent, false and misleading statements, violated trade practice laws and profited off of the sale of a product about which they made unsupported claims of its safety and effectiveness. If you or a loved one has used Hydroxycut, you may be entitled to file a Hydroxycut lawsuit. For more information contact us.

Karen Wilson, secretary at a Graham County, N.C. agency, notified state officials of misuse regarding federal aid money intended to be directed toward a flood cleanup operation. Wilson notified officials in 1996, but did not file a False Claims Act suit until 2001 against Graham and Cherokee Counties, as well as other conservation districts and other individual defendants. In between the time Wilson notified officials of the alleged conduct and the time she filed her suit, Graham County hired local accountants to identify the irregular spending. The state followed up and included these findings in its own report.

The False Claims Act does not allow what it calls “parasitic” whistleblower lawsuits that attempt to capitalize on public information. In 2007, federal district court judge Lacy Thornberg found the local audit and state follow-up report to constitute public disclosure under the FCA, thereby barring Wilson’s claim. The question of whether a local or state report constituting public disclosure under the FCA is one that has the federal circuits split almost evenly. The Supreme Court has granted certiorari to Wilson’s case and will address this issue and make a specific determination as to what exactly is meant by public disclosure. For more information on whistleblower lawsuits and the False Claims Act, contact a whistleblower lawyer.

After two recent incidents involving the crash of Airbus A330 jetliners, investigators are determining whether defective airspeed sensors were the cause. These defective device sensors are similar to those being investigated in the Air France Flight 447 last month. On two different airlines that ended in safe landings, the National Transportation Safety Board has identified separate defective devices, both appearing to be the same type of defects that occurred on the Air France A330 shortly before it crashed. The defects trigger a loss of autopilot and automatic throttle. Such airspeed issues, however, although detrimental to safety, aren’t enough to bring down a jetliner. In the Air France crash, investigators believe turbulent weather, possible computer glitches, pilot actions and perhaps other factors combined to bring the jet to its fatal crash.

The Supreme Court has found that asbestos exposure plaintiffs can recover pain and suffering damages, provided that their fear of developing asbestos-related cancer is genuine and serious.  In CSX Transportation Inc. v. Henley, the Court remanded the case of Thurston Henley, an electrician who contracted asbestosis while working for a railroad company, to determine whether his fear of developing cancer was genuine and serious.

Henley sought pain and suffering damages from CSX under the Federal Employers Liability Act (“FELA”) based on, among other things, his fear of developing asbestos-related cancers in the future.  The Court had previously allowed pain and suffering damages in such cases in Norfolk & Western R. Co. v. Ayers, 538 U.S. 135 (2003), but limited pain and suffering damages to cases in which the plaintiff can establish that his fear of developing cancer is “genuine and serious.”  The trial court, however, did not instruct jurors on the legal standard for fear-of-cancer damages, and the jury found for Henley and awarded him $5 million in damages.

The Tennessee Court of Appeals affirmed the decision, and stated that Ayers did not refer to jury instructions.  The “genuine and serious” mandate for fear-of-cancer damages referred only to the legal standard that judges should apply when deciding whether pain and suffering damages were applicable.

In a per curiam decision, over a dissent by Justice Stevens, the United States Supreme Court reversed the Court of Appeals’ decision, and stated that jurors must be instructed that an asbestos plaintiff’s fear of developing cancer must be genuine and serious to recover pain and suffering damages.  The Court reasoned that, because of the amount of pending asbestos claims and because of jurors’ strong emotional reaction to cancer claims, jurors need to be instructed that the fear of cancer in FELA cases must satisfy a high standard.  Henley’s case was remanded to the trial court, where he could receive a new trial that uses the “genuine and serious” jury instructions. 

Justice Stevens argued that “genuine and serious” jury instructions only need to be given at the trial judges’ discretion.  Justice Stevens believed that the per curiam opinion impractically interfered with trial court procedure, and misapplied the intention of the Court in Ayers.

The effect of the court’s decision is to allow plaintiffs suing under FELA who do not suffer from cancer and were exposed to asbestos obtain pain and suffering damages if they prove that their fear of cancer is “genuine and serious.”  Jurors will be instructed on this standard before deliberating on fear-of-cancer damages.  Read more about asbestos exposure lawsuits.

The Pennsylvania Supreme Court has held that registered nurses can testify as expert medical witnesses in most legal proceedings, reversing its earlier position. In Freed v. Geisinger Medical Center and Healthsouth Corp., the court overturned a trial judge’s decision to disallow expert medical testimony from a nurse concerning the cause of bedsores.

Previously the court’s 1997 ruling in Flanagan v. Labe prevented nurses from serving as medical experts because of restrictions established by Pennsylvania’s Professional Nursing Law. In Freed, the court overruled Flanagan on the grounds that it created an inconsistency between registered and non-registered nurses. According to the Pennsylvania Rules of Evidence, even before Freed, non-registered nurses could testify if they qualified as experts based on “knowledge, skill, experience, training or education.” Registered nurses with the same qualifications, however, were prevented from testifying by the Flanagan decision. Now all nurses must simply meet the common law standards for expert witnesses.

After Freed, not all nurses can serve as witnesses in all cases. Pennsylvania’s MCARE Act prevents nurses from serving as medical experts in medical malpractice cases, providing that only registered or recently retired physicians can serve as medical expert witnesses in professional liability cases against doctors. Read more about medical malpractice lawsuits and hospital negligence.

The Arizona Senate has introduced legislation that would increase the standard of proof for emergency room medical malpractice lawsuits. Under the proposed law, recovery for emergency room malpractice would require that plaintiffs show “clear and convincing evidence” of malpractice, which is more difficult to prove than the current requirement of a “preponderance of the evidence.” Changing the law in this way would make it more difficult for patients to obtain damages from the doctors, hospitals, and other health care providers that are responsible for their injuries.

The law’s sponsors say that it is intended to persuade doctors, particularly specialists, to work in hospital emergency rooms. Many doctors allegedly are unwilling to work in emergency rooms because they fear malpractice lawsuits from dissatisfied and injured patients. Tuscon attorney and Arizona Trial Lawyers Association lobbyist JoJene Mills objected to the law, saying that it would deprive injured individuals of their civil rights.

Versions of the bill have been voted on in both the Arizona Senate and House of Representatives, where it passed on June 22 and June 26, respectively. A similar law was approved by the legislature in 2006, but was vetoed by then-governor Janet Napolitano, who is currently serving as the U.S. Secretary of Homeland Security. Read more about medical malpractice.

No news is not always good news. A study of office procedures among primary care physicians found that more than 7% of significant findings in test results were never reported to patients. At two large academic medical centers, 23% of abnormal test results were not mentioned to patients.

Researchers surveyed 19 independent primary care practices and four practices based at academic medical centers, examining the records of more than 5,400 patients. Out of 1,889 abnormal test results, doctors failed to notify patients 135 times. Researchers also found that practices using electronic records had the lowest failure to inform rates, while practices using a combination of electronic and paper records had the highest failure rates.

The study’s authors suggested five simple steps that could significantly reduce errors:
1.    Routing test results to the proper doctor;
2.    Having the doctor sign off on results;
3.    Informing patients of the results;
4.    Documenting that patients have been informed; and
5.    Telling patients to contact the office after a certain period if they have not received their test results.

Patients can also protect themselves from failure to diagnose and medical negligence by contacting their doctor’s office if they have not been notified of test results within a few weeks of a test. Read more about medical malpractice and hospital negligence.

The Wall Street Journal reported earlier this year on a number of health websites that provide helpful and informative tools to people seeking information about health care.  Though doctors and other informed and qualified experts in the medical field often are the most reliable sources of information, the everyday person might not find it easy to simply make a trip to the doctor’s office anytime he or she has a question or concern.  The Internet has made it much easier for people to find their answers online, visiting sites that focus on important consumer health concerns, including prescription drug safety and quality of care, and also allowing interaction with other patients with similar health problems. 

Among the websites recommended by the WSJ article are websites sponsored by government and nonprofit groups, as well some advertiser-supported sites that focus on a wide range of health care issues.  One site, ConsumerMedSafety.org, tracks and analyzes reports of medication errors and safety risks while offering consumers various methods for learning about medication safety.  Another, WhyNotTheBest.org, compares the quality of care at 4,500 hospitals nationwide.  Some sites, such as EverydayHealth.com and HealthCentral.com, link a number of separate sites that all focus on varying interests and health issues.  These sites provide helpful tools to manage health and educate the public on leading health issues.

We at Bernstein Liebhard also seek to educate and provide helpful consumer resources online, ranging from information about relevant health issues such as dangerous drugs and defective medical devices.