Access To Justice

At Sokolove Law, we have seen an increasing number of nursing home abuse cases over the years.  It’s a sad fact that many seniors are seriously injured as a result of abuse right in their nursing home.  Sometimes this abuse is dramatic and results in broken bones and criminal prosecutions. Too often it’s more subtle and comes in the form of neglect, which results in malnutrition, dehydration, or systemic infections from skin sores that lead to more serious issues such as heart failure.

Now, recent news reports are pointing to a different kind of abuse—the use of powerful psychotropic drugs on patients with dementia and Alzheimer’s.

According to a recent front page story in The Boston Sunday Globe, some 2,500 nursing home residents in Massachusetts were given powerful antipsychotic drugs last year that were not intended or recommended for their medical condition.

This practice appears to be fairly widespread. The US Food and Drug Administration have twice issued nationwide alerts about the use of these drugs for elderly patients. In October, the Chicago Tribune identified 1,200 violations at Illinois nursing homes involving psychotropic medications since 2001. Those infractions affected 2,900 patients.

And the problem does not appear to be limited just to the U.S.  In November, a report in the Guardian found that nearly 2,000 elderly patients are killed each year in the U.K. by unnecessary anti-psychotic medication, and as many as 144,000 people suffering from dementia in that country are being given anti-psychotic drugs unnecessarily.

Here’s the bottom line, as reported in the Globe:

“Way too many patients in nursing homes are treated with antipsychotics purely to sedate them or to control behaviors that are difficult for the staff,’’ said Robert A. Stern, an Alzheimer’s specialist and brain researcher at Boston University School of Medicine.

Simply put these drugs may be dangerous, and that may be particularly true when they are given to patients who don’t need them.  The use of antipsychotic drugs on patients with dementia or Alzheimer’s is just another subtle form of nursing home abuse.  If you or a loved one has been the victim of nursing home abuse of any kind, you may have legal rights.  Contact us to find out more.

Last October, we told you about a case where 206 patients were suing LA’s famed Cedars Sinai Medical center because of accidental overdoses of radiation they received during medical imaging there.  Now, as more and more reports emerge about possible radiation overdoses, the Food and Drug Administration (FDA) is getting involved.

The FDA recently announced an initiative to reduce unnecessary radiation exposure from three types of medical imaging procedures: computed tomography (CT), nuclear medicine studies, and fluoroscopy. According to the FDA:

“These procedures are the greatest contributors to total radiation exposure within the U.S. population and use much higher radiation doses than other radiographic procedures, such as standard X-rays, dental X-rays, and mammography.”

In addition, according to the Miami Herald, a medical imaging trade group announced last month that it would begin installing safety controls on scanners to prevent overdoses.  The controls will “alert machine operators whenever a machine’s settings exceed recommended levels.”

I also recently came across an article in The New York Times that referenced a number of additional radiation overdose incidents.  In Missouri, a hospital said it had overradiated 76 patients during a five-year period because radiation equipment had been set up incorrectly.  In Florida, a similar problem resulted in:

“77 brain cancer patients’ receiving 50 percent more radiation than prescribed in 2004 and 2005.”

To be sure, it is good news that the FDA is involved and taking a closer look at regulations and other safeguards to prevent these overdoses.

Like all medical technologies, advanced medical imaging devices may hold the promise to better diagnosis and health care outcomes. However, these are powerful machines. If not set up correctly or deployed by under-trained technicians, the risks to patients are real.

We’ll be following this story for further developments.

I’ve written before about a number of initiatives around the country to put caps on medical malpractice awards, and why such initiatives don’t make much sense for consumers.

When last we left these proposals, the Illinois Supreme Court had delayed issuing a ruling on whether the caps were constitutional in that state.  In February, the court issued its ruling overturning the state’s medical malpractice law and holding that caps on liability damages were unconstitutional.

Essentially, the Court’s decision reverses a 2005 state law capping non-economic damages—such as pain and suffering—for physicians at $500,000 and hospitals at $1 million.

The Court based its decision on a case that arose from Cook County, LeBron v. Gottlieb Memorial Hospital, involving the severe disability of a young girl, Abigaile Lebron.

The New York Times had a nice write up on the ruling here.

I’ve argued ad nauseum that caps on medical malpractice do not make any sense.  As I said back in December:

“The bottom line is this:  Damages compensate victims who have suffered because of someone else’s negligence, but they also force the system to be careful.  Doctors are more careful because they don’t want to get sued.  I think that’s a good thing.  Careful doctors are better doctors.  Our medical system has become better because of medical malpractice law, not in spite of it.”

Kudos to the Illinois Supreme Court for a sound decision.  Here’s hoping other states follow their lead.

As someone who’s been involved in numerous lawsuits related to product liability, I can tell you I have seen it all.  But the Toyota recall is about as close to a perfect storm as it gets.  Case in point: Congress is now holding hearings on the matter.

In true lawyerly fashion, let’s review the facts:

•    Start with a company that has built its brand on quality.

•    Add in the largest recall in the company’s history and one of the ten largest of all time, totaling more than 8 million vehicles, 6 million in the U.S.

•    The recalls relate to everything from faulty gas pedals to brakes, all absolutely critical to safety.

•    According to the National Highway Transportation Safety Administration (NHTSA), 34 deaths allegedly were caused by gas pedal problems.

•    Toyota has allegedly been aware of the potential for problems with accelerators as early as 1999, and the NHTSA had been investigating the issue dating back to that period.

So, if I may paraphrase, it sure seems as if Toyota had some serious problems with its product that could potentially be dangerous, and the company chose to be in denial about it.

Now, once the company issued a recall, how it handled the matter was also a case study in what not to do.

•    To begin with there is evidence that Toyota was basically forced into the January 21 recall by the NHTSA.

•    Toyota CEO Akio Toyoda waited almost two weeks to comment on the recall before apologizing and calling the situation a “crisis”.

• Then, U.S. Secretary of Transportation Ray LaHood tells Toyota drivers not to drive their cars, only to later say he “misspoke”.

•    Toyoda says he won’t testify before a Congressional Committee; in the face of a threatened subpoena, he agrees to testify this week.

This brings us to the consequences of all of this mismanagement and lack of candor and transparency.

•    An estimated 44 class-action lawsuits have been filed under state and federal law by the end of last week.

•    Claims could reach $3.6 billion, based on an average loss of $600 per vehicle.

•    There are dozens of other individual lawsuits alleging that Toyota knew of the risk and did not act swiftly enough to correct the problem. Experts say these cases could cost Toyota billions in settlements.

•    At least one wrongful death lawsuit has been filed for $100 million related to the death of a Texas couple.

Toyota had serious problems with some of its product.  Instead of acknowledging the problems early on and taking the appropriate steps, the company chose a strategy that combined benign neglect with the finger-crossed hope that it could sweep things under the rug.  It is a strategy that too many businesses employ when product defects are in question.

The result: numerous lawsuits that will likely cost the company billions of dollars and damage its brand well into the future.

More importantly, what Toyota did was wrong.  It put people at risk to save a buck.  The company valued its reputation and revenue over the safety of customers.

If you’re one of those customers, you can find more information about the recall at Toyota’s website.

Just over a year ago, President Barack Obama signed his first major piece of legislation. The Lilly Ledbetter Fair Pay Act  overturned a controversial 2007 Supreme Court case, and made it easier for women who faced wage discrimination to sue their employers.

Here is what I said about Lilly Ledbetter at the time.

Basically, the Ledbetter Act revised the statute of limitations (SOL) for filing discrimination claims with the Equal Employment Opportunity Commission (EEOC), so that each discriminatory paycheck essentially restarted the SOL clock for plaintiffs.

According to a recent article over at Law 360, here’s what that means for working women: 

“People challenging a wide variety of practices that resulted in discriminatory compensation are benefiting from the act’s passage,” EEOC said. “These practices include determining base pay or wages, deciding job classifications, denying career ladder or other noncompetitive promotions, denying tenure, and failing to respond to requests for raises.”

All told, during the past year, EEOC received more than 68,000 complaints of workplace discrimination, including 4,800 charges of wage discrimination, 1,900 of which were filed by women alleging sex discrimination in compensation.  Some of those women, depending on when they filed, may not have gotten their day in court if not for the Lilly Ledbetter Act.

The bottom line is this:  The Ledbetter Act is the latest part of a federal regime that prohibits employers from discriminating against employees based on gender.  We can expect to see more and more claims filed under its provisions.

If you or someone you know has been the victim of workplace discrimination, you should know your legal rights.

As anyone who subscribes to cable television knows, DIY stands for do-it-yourself.  The phrase is frequently heard on the more than two dozen cable shows designed to teach ordinary Americans how to tackle home improvements.   The pattern of these shows is similar:  combine the sweat equity of an average hard-working couple with a team of experts who coach them along the way, and the job is done right at a fraction of the cost. 

Sounds good, right? Now think about applying that DIY principle to the justice system.  What if we could have a nation of do-it-yourself lawyers, who only call in the experts when they hit a snag.  Sound far fetched?  Well, it’s exactly what the chief justices of the California andNew Hampshire supreme courts wrote in an opinion piece in a recent edition of The New York Times.

Justices John T. Broderick Jr. (New Hampshire) and Ronald M. George (California) first defined the problem, that we’re already a nation of DIY lawyers:

“An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own — pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter…an inaccessible, overburdened justice system serves none of us well.”

They’re right, of course.  In fact, studies have suggested that as many as 80 percent of the civil justice needs of society go unmet because people lack access to the system.  One of the main reasons for this is the high cost of legal representation.  Many people who go to court without a lawyer do so because they simply can’t afford one.  

Justices Broderick and George not only identify the problem, they also propose an innovative solution, one I believe is a critical reform for the legal profession—unbundled legal services.  Let me explain.

Traditionally, if a lawyer got involved in a case, they owned it.  They had to stay with it from beginning to end.  But that’s starting to change.  As Broderick and George point out, there are 41 states that now permit lawyers to get involved in only part of a case, so-called “limited scope representation.”

It’s a reform the other 9 states should adopt. Under the new rules, lawyers can be hired to help with basic parts of a case or other legal matters that require the assistance of an attorney, while the other more pedestrian parts can be handled by the litigant alone.  In this way, lawyers can focus their efforts where they are really needed, and litigants can limit the legal fees but still get expert advice regarding the complex issues. It’s win/win for the entire system.

What’s more, the proposed reform could improve access to the legal system for the increasing number of pro-se litigants who chose to represent themselves.  As the justices write:

“For those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage…”

Lawyers offering unbundled legal services may be able to help some people who would otherwise have never hired a lawyer—just like the television DIY experts help people who might otherwise have never considered renovating their home.

If I were in a self-help group, I’d start my story by saying: “My Name is Jim Sokolove, and I’m an ambulance chaser.   What’s worse, I’m proud of it.”

We all know that lawyers are often the butt of jokes for being sleazy.  In fact, even in a profession that has some of the lowest approval numbers among the public, personal injury attorneys—so-called “ambulance chasers”—stand out as particularly worthy of scorn.

So  you might think it’s odd to be proud of being called an ambulance chaser.  But I mean it.  I’m proud of that moniker.  Let me explain.

I started a law firm that specializes in personal injury law, and we get our clients by advertising to people who may have been hurt as the result of someone else’s negligence.

For more than thirty years, my firm and our co-counsel have helped hundreds of thousands of people who have been harmed as a result of someone else’s negligence.  It’s amazingly rewarding work, and I consider myself lucky to have made it my business to help people.  Along the way, we’ve helped to bring about some changes for the better in society.

Cars have seatbelts, laws require bike helmets, and companies dispose of toxic waste properly all because we and our fellow ambulance chasers stood up to fight for people who had been injured.  You have ambulance chasers to thank for laws requiring truth in advertising for pharmaceuticals, for disclosing toxic chemicals like asbestos at job sites, and for exposing the dangers of using tobacco.

We’ve helped to bring people together who have been victims of the same kinds of injuries.  We run online web resource centers for victims of birth injuries, asbestos-related lung cancer, and medical malpractice, where those who have been injured can form a community, share their stories and support one another.

And we are constantly identifying areas where people are being injured, and may not know about their legal rights.  For example, in the past six months, we’ve launched consumer hotlines informing people about the potential dangers associated with denture creams, and toxic building materials imported from China.  We never stop looking for corporations who are looking to make a quick buck by skimping on the safety of consumers.

Last winter, we convened a meeting of the leading attorneys in the financial services space to consider how the legal rights of those on Main Street have been devastated by the fraud and abuse on Wall Street.  In addition, we’re taking lots of cases related to wage-and-hour abuses caused by companies who are tightening their belts on the back of their employees.

We do all of this at a time when the legal industry is under enormous pressure.  To be sure, there’s still unmet demand.  In fact, nearly 80 percent of the civil legal needs of the low-income individuals and 60 percent of middle-income households remain unmet.  In the most legally advanced country in the world, that’s simply unacceptable.

So I don’t shy away from the label ambulance chaser.  In fact, to paraphrase Shakespeare’s Henry V: “If it is a sin to be an ambulance chaser…I am the most offending soul alive.”  As I said in one of my first television ads: “I’m attorney Jim Sokolove, and I help people who’ve been injured get the money they deserve.”

I’ve been doing it for more than 30 years.  And I’m going to keep at it, so long as there are people who need my help.

It’s week two of the new decade and we still haven’t figured out whether it’s “two thousand and ten” or “twenty-ten”.  That’s the bad news.  The good news is that the “decade in review” news pieces that inevitably focus on celebrity deaths, scandals, and divorces have already started to fade.

While such retrospectives often do little more than rehash old news, Joanne Doroshow, the Executive Director of the Center for Justice and Democracy, did have a great piece in the Huffington Post looking back on a decade of major civil justice triumphs.  The piece is here.

Doroshow cites three in particular that are worth calling out.

•    First she talks about the Supreme Court decision in Wyeth vs. Levine, which overturned a previous decision holding that companies could not be sued in state court for killing or injuring someone just because their product was regulated by the federal government (in Wyeth’s case, by the FDA).  Wyeth was landmark because it essentially rolled back the Bush administration’s misguided attempts to use the doctrine of preemption to protect corporations from being sued for negligence.

•    Second, she points out that despite its best efforts, the Bush administration was unable in its eight years in office to cap damages in medical malpractice cases.  Despite a hue and cry from the right, and having Bill Frist (a doctor and health care executive) as the Senate Republican Leader, Bush was unable to roll back people’s right to sue and collect compensation.

•    Finally, squeaking in just below the wire was a huge setback for so-called “forced arbitration” provisions that came in 2009.  These provisions essentially require people to go to arbitration instead of suing and, surprise surprise, the corporation that is negligent is usually the one who gets to pick the arbitrator.   I’ve written about forced arbitration before.  It was a particular favorite of the credit card companies, until both the National Arbitration Forum and American Arbitration Association said they would no longer do credit card collection disputes. Then, a class action lawsuit against big banks led to a number of them agreeing to drop these clauses altogether.

All three of these are important victories for the basic notion that people who are hurt should be compensated for their injuries.  Let’s see what the twenty tens bring.

I’ve written before about medical malpractice caps, and why they don’t make much sense, so I thought I would offer a bit of an update on the current happenings around the country.

Illinois was in the news recently as a key battleground, when the state’s Supreme Court on December 18 delayed issuing a ruling on whether a law capping medical practice damages would survive.

The law, passed in 2005, established caps on non-economic damages of $500,000 in cases against doctors and $1 million against hospitals. The case, Lebron vs. Gottlieb Memorial Hospital, was argued last year and deals with the tragic case of Abigaile LeBron, a 13-month-old girl who suffered a severe brain injury during birth at Gottlieb Memorial Hospital in Melrose Park.

The Illinois Supreme Court has twice previously thrown out damage caps as a violation of the separation of powers between the legislature and the courts. But the current state Supreme Court might be more amenable to damage caps since the 2004 election of Justice Lloyd A. Karmeier. Karmeier’s election was widely interpreted as a rejection of big damage awards, including those in medical malpractice cases.

Illinois is just the latest front in the med mal cap war.  In fact, a Missouri case is scheduled to be argued in January, and Maryland, Georgia and Oklahoma all have cases pending.

The Missouri case is particularly interesting because the law in that state sought to apply caps on damages retroactively. In the case, James Klotz and his wife Mary won a jury award totaling about $2.5 million from Dr. Michael Shapiro, the Metro Heart Group and St. Anthony’s Medical Center. The appeal involves the non-economic damages, which initially were about $1 million. The trial judge applied the 2005 law — passed after the medical procedure but before the trial — to reduce non-economic damages for Michael Shapiro from about $500,000 to $234,000 and for Mary Shapiro from $220,000 to zero.  The Klotzes argue that the law should not have been applied retroactively to the 2004 medical procedure.

Washington University, Saint Louis University and Missouri University have filed briefs on behalf of the law with caps. They argue that the law is important to limiting medical costs at the university hospitals they operate.

Now that’s a familiar if not increasingly discredited argument.

In fact, just this month, Public Citizen issued a report that found the liability limits in Texas have failed to curb medical costs.  How do I know that’s the conclusion? Because the title of the report is:

Liability Limits in Texas Fail to Curb Medical Costs

Despite the promise that caps on liability instituted in 2003 would reduce costs, lower barriers to insurance and keep doctors from leaving the state, the report found the following:

•    The cost of healthcare in Texas has outpaced the national average
•    The state’s uninsured rate remains the highest in the country
•    The doctor shortage in rural areas has become more acute

So much for the silver bullet of liability caps.  The bottom line is this:  Damages compensate victims who have suffered because of someone else’s negligence, but they also force the system to be careful.  Doctors are more careful because they don’t want to get sued.  I think that’s a good thing.  Careful doctors are better doctors.  Our medical system has become better because of medical malpractice law, not in spite of it.  Agree? Disagree? Let me know what you think.

According to published reports, U.S. drug reviewers are calling on federal regulators to further study the effects of atypical antipsychotic medicines in children.  In a report published earlier this month, the staff of the FDA said a study of the medical literature found a direct link between treatment with atypical antipsychotics and adverse metabolic effects including abnormal weight gain and increases in cholesterol and blood pressure, particularly among younger age groups.

Specifically, the FDA analysis showed increased reporting of metabolic problems with Eli Lilly’s Zyprexa and AstraZeneca’s Seroquel.

The concerns about Zyprexa and Seroquel are just the latest in a long history of potentially dangerous side effects associated with prescription medications.

To me, these reports are extremely concerning.  Back in January, a study in the New England Journal of Medicine suggested that newer, second-generation antipsychotics such as Seroquel might pose heart risks — specifically, a higher risk of sudden death due to cardiac arrest.  Then in April, the FDA found that Seroquel had too many safety concerns to make it a first-line treatment against depression or anxiety disorders.

That’s a lot of concern being raised about one drug in a single year.  Overall it seems that Seroquel — like many drugs — can be quite effective for certain patients. However, for many other patients there are wide reports of dangerous side effects.  More troubling is the fact that these drugs are often prescribed for children.

When you look at the three adverse studies that have come out this year, one wonders whether the FDA has done all the diligence it should to ensure that the drug is safe.  Do we know all we should about the side effects? Or should we expect a new round of research to tell us of even more risks?  Against this backdrop; perhaps the safety of the drug is not the only thing in question, perhaps the credibility and effectiveness of the FDA are as well.

There’s more on the newer class of antipsychotic medications at the U.S. Food and Drug Administration.