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Medical Device Liability Bill: Undoing Injustice

Don Greiwe — Tue, 19 May 2009 10:25:09 GMT

Last week, the new Medical Device Liability Bill was up for debate within Congress’ House and Energy Subcommittee. This new legislation is intended to undo the U.S. Supreme Court’s decision in Riegel v. Medtronic, Inc. In Riegel, the Supreme Court immunized certain manufacturers of medical devices by protecting them from state law product liability claims. This precludes approximately 10 million patients from claims against the manufacturer of their implanted devices when the devices were approved by the FDA.

Expectedly, pro tort reform associations such as American Tort Reform Association (ATRA) have begun marketing against passage of the new bill. In their latest press release, ATRA makes several bold claims, including: (1) the legislation’s intent is to only further trial lawyer fees; (2) this bill will allow claims that could bankrupt reputable companies; and (3) the bill would undo “longstanding law”. As a proponent of the bill, it’s clear to me that these claims are without merit.

First, the argument that pro-consumer legislation is really just pro-trial lawyer legislation is incredulous. This is nothing more than ARTA’s attempt to play to the stereotype of a trial attorney as reason to prevent victims from being made whole. Trial lawyers have, directly and indirectly, brought about increased safety measures and forced manufactures to be more conscientious of consumer safety.

Second, ATRA claims that the bill could allow excessive claims that would bankrupt the industry. The intention of product liability lawsuits, like most all other forms of personal injury litigation, is to make the injured victim whole again. Often people will hear of lawsuits with huge punitive damage awards. These punitive damages are sometimes greater than the compensatory damages themselves, and are intended to do as its name implies – punish the defendant. However, they are only available in extreme cases. In other words, the vast majority of product liability cases results in compensating the plaintiff for their injury, and are not intended to “bankrupt” any company (or for that matter, actually do bankrupt such a company).

Third, to call the decision of Riegel “longstanding” is beyond a stretch of the imagination. Riegel was decided February 20, 2008. In the decision, the Medical Device Amendments of 1976 was construed to spare medical device manufactures from claims of flawed design or labeling. While the decision has already precluded at least 1,400 lawsuits against manufacturers, the decision has created law that is far from longstanding.

The intent of this legislation is to undo the Supreme Court’s overreach into product liability lawsuits. Riegel has precluded otherwise legitimate claims, a preclusion not consistent with any other tort law. In the more recent decision of Wyeth v. Levine, the Supreme Court held that manufacturers could be held liable for mislabeled or defective drugs regardless of FDA approval.

In contrasting these two decisions, the current state of American law is this: If someone were to be seriously hurt or killed because of an FDA-approved drug was mislabeled, they are allowed to seek compensation. But if this person were injured by a mislabeled FDA-approved medical device, they would be precluded from bringing suit. Where is the consistency, or for that matter, the justice in that?

Originally posted at InjuryBoard by Don Greiwe

NY Child Victim Act May Come Up For Vote Today

Joe Saunders — Tue, 16 Jun 2009 10:01:41 GMT

The much antipated Child Victim Act may finally reach a vote in the NY State Legislature today. The bill has been aggressively opposed by the NY State Catholic Conference and Brooklyn Bishop Nicholas DiMarzio and Rockville Centre Bishop William Murphy.

The bill has been amended by its sponsor Rep. Margaret Markey to include both public and private institutions. The measure would allow childhood victims of sexual abuse the opportunity at justice in the courts. Since the statute of limitations has long since passed in many of these tragic cases, the bill would allow those abused by priests, nuns, teachers, and other public officials to bring lawsuits against the perpetrators as well as the institutions who covered up the systemic abuse. One amendment to the bill which is not so good but necessary for passage is the age restriction placed on the measure. Only those who have not reached their 53rd birthday would be eligible.

In sum, here's hoping the bill passes so that thousands of childhood sex abuse victims can seek justice and healing.

Originally posted at InjuryBoard by Joe Saunders

NY Legislature Considering Sex Abuse Bill to Help Victims

Joe Saunders — Fri, 13 Mar 2009 10:20:48 GMT

It's not the first time the New York State Legislature has considered measures that would open up the statute of limitations for sexual abuse victims. However, this year, the Child Victims Act, has a very good chance of becoming law. The proposal, if it makes it to the Governor's desk, would provide sexual abuse victims a one year window during which they could seek civil justice against the perpetrators as well as the institutions that covered up for them.

The bill does face stiff opposition from the NY Catholic Conference whose lobbying efforts will be aggressive and prodigious. As usual the NY Catholic dioceses argue that the bill unfairly targets institutions like the Catholic Church. In their argument, they neglect the fact that hundreds if not thousands of New York sexual abuse victims have suffered at the hands of priests in the Dioceses of Albany, Rochester, Ogdensburg, Rockville Centre, Brooklyn, Syracuse, and the Archdiocese of New York.

The newly appointed Archbishop of New York Timothy Dolan has yet to weigh in on the legislation. However, it's widely believed he will go along with his brother bishops in the State by vigorously opposing the Child Victims Act.

Let's hope the NY State legislators have the courage to do the right thing for victims.

Originally posted at InjuryBoard by Joe Saunders

Priest Abuse Cases: Why We Handle Them

Joe Saunders — Sun, 15 Mar 2009 12:11:28 GMT

I'm writing this blog post in response to a comment posted about one of my earlier blog posts. In his comment, the writer attributed to me why lawyers take priest abuse cases: money and anti-Catholicism. I am compelled to respond to these inaccuracies and false attributions.

First of all, priest abuse cases are not the typical consumer justice case because in most instances, the statute of limitations is such that the survivor of abuse has no legal recourse whatsoever. Because the abuse happened so long ago, the abuser and the institution that protected him and allowed him to continue the abuse is immune from lawsuits. I take these cases because someone has to expose the secrecy and cover-up that allowed the abuse to continue for decades. Secondly, if we are able to bring an abuse case to court, the Church is forced to turn over documents about the nature and extent of their actions concerning the abuse scandal. Justice demands accountability and transparency which are the two strongest weapons we as a society have to stop child abuse. If the abuse remains in the shadows, it continues to fester and spread. As a result, many more children will be harmed and lives will be shattered.

The anti-Catholic charge has been around since the beginning of the priest abuse scandal in 2002 (at least it's latest epoch). While it's easy to hurl labels, it's not so easy to ground same in fact. The exposure of a priest's criminal behavior and the institution's failure to prevent it from continuing is a matter of public record. It's not a matter of opinion or debate. The fact that I discuss it and represent those who've been victimized by it doesn't make me anti-Catholic or anti-religion. On the contrary, I am holding the Church to the societal standard of being a good public citizen and a steward of the public trust.

This is why I'm advocating for the change in New York's sexual abuse law. The Child Victims Act would go along way to hold the Church and its clergy accountable for its actions. I advocate the same for pharmaceutical companies and medical device companies who have a public duty to be good steward in society.

Originally posted at InjuryBoard by Joe Saunders

Boot Camp Becomes Death Camp

Bob Carroll — Thu, 09 Feb 2006 06:11:48 GMT

Boot camps for juvenile offenders are intended to provide a strict regime that leads to a better life. The Miami Herald reports on a camp session that got tragically out of hand.

Guards seen beating teen in video
A 14-year-old boy was ''brutally'' beaten by guards and ''flung around like a rag doll'' at a boot camp for juvenile delinquents in Panama City hours before he died at a Panhandle hospital, according to two lawmakers who on Wednesday saw a videotape of the incident.
The video, which recorded the last 20 to 30 minutes of the teen's stay at the Bay County Sheriff's Office Boot Camp, shows officers at times kicking, punching and choking Martin Lee Anderson after he refused, or was unable, to comply with officers' orders to run or do other exercises, the legislators said.
Martin, of Panama City, died Jan. 6 at Pensacola's Sacred Heart Hospital, hours after he was admitted to the boot camp, which is operated under a contract with the Florida Department of Juvenile Justice.
Clearly shaken, state Rep. Gus Barreiro told The Miami Herald that the tape depicted ''the most heinous treatment of a human being'' he had ever seen. "It was obvious to me the kid was unconscious, and they were still abusing him. People will be outraged when they see this tape, and they should be outraged."
''This could be anybody's son,'' added Barreiro, a Miami Beach Republican who chairs the House Juvenile Justice Appropriations Committee, and has headed a separate committee investigating alleged abuses in DJJ facilities.

Originally posted at InjuryBoard by Bob Carroll

Medtronic Sprint Fidelis Defibrillator Leads Lawsuit Dismissed

Joe Saunders — Wed, 07 Jan 2009 21:05:38 GMT

US District Judge Richard Kyle has dismissed all lawsuits pending against Medtronic for its faulty Sprint Fidelis Defibrillator leads citing Riegel v. Medtronic's Supreme Court case last year. In his broader opinion, Judge Kyle wrote in his 37 page opinion that consumers have no right to file lawsuits against medical device companies who've previously received FDA pre-market approval for the device.

While the case is a set back for consumer justice, a legislative solution is in the works. Congress will consider a measure that effectively makes the judicial decision moot if passed into law. One of the Senate sponsors last year was the current President-elect Barack Obama. The proposed legislation has bipartisan support and is expected to pass this year or at the latest in 2010.

Originally posted at InjuryBoard by Joe Saunders

BPA Free Bottles Gain Popularity

Shannon Weidemann — Mon, 30 Jun 2008 15:53:24 GMT

For a long time now bisphenol-A (BPA) has been used in plastic to make it hard and clear. New studies are now making people question its safety especially when used in baby bottles, sippy cups, and the lining of formula cans. Retailers such as Babies R Us and Toys R Us are offering a BPA bottle exchange.

The National Toxicology Program, part of the U.S. Department of Health and Human Services' National Institutes of Health, released a draft report in April that concluded there may be some health concerns associated with products containing BPA, which is also present in the lining of canned foods and drinks.

The possibility that BPA may alter human development could not be dismissed, researchers said.

Canada has banned the sale of items containing BPA. Exposure has been linked to breast cancer, testicular cancer, early onset of puberty, autism, and hyperactivity. For now parents are following the old adage of better safe than sorry and exchanging their bottles for BPA-free ones. Glass bottles are making a comeback as well.

Originally posted at InjuryBoard by Shannon Weidemann

Specialty Courts Would Bring Special Problem - Bias

Bob Carroll — Thu, 12 Jan 2006 20:40:19 GMT

The Wall Street Journal's Law Blog casually floats the idea of special courts for medical malpractice claims. Nice try, Wall Street, but I prefer my justice served with fairness and impartiality.

Some years ago my clients and I experienced the kind of justice that occurs in a special tribunal in the State of Florida. The special tribunal process was created as part of a pre-suit screening process for medical malpractice claims. Each tribunal was composed of an attorney, a doctor and a judge. The legislature may have thought it would be wonderfully fair and knowledgeable because of its composition. A few years of experience proved how unfair special tribunals could be. The doctor on the panel, armed with his agenda and his supposedly superior insight into medical issues, was easily able to lead one or both of his panel-mates to vote against every claimant.

I would rather put my faith in the fairness of ordinary trial judges and citizen juries who don't come to the issues as advocates for the malpractitioners.

The Atlanta [business] court is a tangible example of a movement to establish more specialty courts, most notably special health courts that would adjudicate medical malpractice claims.... They don't yet exist; Congress plans to hold hearings on the topic this year.

Would Congress be willing to hear from the hundreds of Florida malpractice victims who saw their day in court become a funeral service for their rights?

Originally posted at InjuryBoard by Bob Carroll

Musings from the All-Star Game

Joe Saunders — Wed, 15 Jul 2009 08:25:59 GMT

I had the opportunity to attend last night's All-Star game in St. Louis with my son last evening. It was a great game-fast paced with some exciting plays in the field, especially by hometown favorite Carl Crawford.

As we prepare to travel back to Tampa today, I couldn't help but think about the goodwill generated by the pre-game ceremonies, the back stories about the players, and the game itself. Baseball is fortunate to have many goodwill ambassadors, perhaps none more exemplary than Albert Pujols. Besides being a fantastic ballplayer, he's a gentleman who's humble and gives back to his St. Louis community.

These players and an exciting game last night help fans forget about the problems that linger in baseball such as steroids and the use of banned substances. In some instances, such as JC Romero's case, the banned substance violation should scare us all. Romero was suspended for using a banned substance that he purchased at a GNC store in Cherry Hill, NJ. He consulted with the team trainer about the purchased dietary supplement and was given the go-ahead to use it. Unfortunately, for Romero, the product labeling wasn't complete and 6-OXO Extreme contained substances (unknown to Romero) banned by Major League Baseball.

Romero's case points out a potential problem for all of us with dietary supplements. The products aren't evaluated or regulated by the FDA. While they boast about using "all natural" ingredients, the consumer never knows the combinations of those ingredients nor the quantities mixed together. It's a dangerous situation for all consumers, not just ball players.

Anyway, steroids and banned substances aside, baseball is alive and well because of the quality of its players. They are not only All-Stary because of their physical prowess. They are All-Stars as well for the content of their character.

Originally posted at InjuryBoard by Joe Saunders

Inadequate Staffing Takes its Toll in Health Care Industry

Don Greiwe — Mon, 20 Jul 2009 11:02:49 GMT

Recently, the American Nurses Association (ANA) released the results of an ongoing survey of nurses across the U.S., and the findings are grim. The survey received more than 15,000 responses from nursing professionals, and an alarming number of respondents reported insufficient staffing and a decline of care. Specifically, 50% of nurses say they would “not feel confident” having a loved one receive treatment in the facility they work in, and a shocking 72% believe that the staffing in their unit is insufficient. The staffing insufficiency has taken the largest toll on nurses - most are rarely afforded a full meal break and many have been forced to take on additional duties. Over half are considering leaving their current position, and nearly a quarter are considering leaving nursing all together.

For too long, nurses have been overworked and underappreciated. And in today’s health care climate, nurses have just as much impact on patient care as doctors. The ANA has launched a grassroots campaign entitled “Safe Staffing Saves Lives” to help better the work environment for nurses. A fitting name, the campaign focuses on the importance of adequate staffing in the health care industry. To date, 12 states – CA, CA, CT, IL, ME, NV, NJ, OH, OR, RI, TX, VT, WA – and the District of Columbia have adopted regulations addressing nursing staffing. But for many hospitals in Florida, there simply aren’t enough nurses to meet demand. One such example is Tampa General Hospital – which alone has 53 nursing positions open at the time of writing this. And the Florida Center for Nursing forecasts that the shortage is going to continue to grow.

There are a lot of things that need to be done to improve the state of patient care in America. The first step to any successful medical unit is adequate staffing. While some hospitals take the necessary steps to recruit an adequate staff, many others try to get by with the bare minimum. This bare-bones business model has taken its toll on nurses, and surely has taken its toll on patient care. A shortage of nurses can likely be linked in part due to the poor work environment nurses are subjected to daily. The nursing profession has one of the highest turnovers of any industry. And with 25% of those surveyed considering leaving nursing all together, it becomes a downward spiral that will only get worse unless something radical is done to better handle staffing shortages.

Originally posted at InjuryBoard by Don Greiwe