Access To Justice

News developments that we’ll be watching at Sokolove Law:

Insulin Pumps Under Scrutiny: The Food and Drug Administration (FDA) said yesterday that insulin pump problems are on the rise and issues with the devices “exist across manufacturers,” according to a Reuters report.

The  FDA did not cite specific manufacturers. However, major pump makers include Medtronic, Roche Holding AG and Johnson & Johnson.  There have been 18 pump recalls in the last five years, according to the FDA.  A document issued by the agency found that there were nearly 17,000 reports of adverse events related to insulin pumps between 2006-2009, including 310 deaths. The reports do not prove a device caused a specific problem.

Insulin pumps are mostly used by individuals with Type I diabetes who require insulin daily to help control their blood sugar. A malfunctioning pump can lead to improper blood sugar levels, a potentially fatal problem.

Reuters reports the FDA will meet with an outside advisory panel on Friday to discuss ways to minimize the risk from malfunctioning pumps and to improve how pump makers report and investigate the problems.

Deadly drywall? Toxic Chinese drywall may be responsible for several deaths, according to a Scripps Howard News Service analysis of drywall complaints and follow-up inspections handled by the US Consumer Product Safety Commission (CPSC).  The news service writes that eight deaths allegedly linked to toxic wallboard were reported to federal consumer safety officials between June-December 2009. Most involved elderly and young people with longstanding medical problems. However, the CSPC told Scripps there is “no scientific proof of a link between drywall and the deaths.”

Fatal facelift: The Boston Globe reports that cosmetic surgery company Lifestyle Lift is facing a lawsuit alleging that a Massachusetts woman died from a  facelift procedure performed at one of its surgical centers. The suit was filed in Middlesex Superior Court by the deceased woman’s family.

At Sokolove Law, we’re here to protect your rights.

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.

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.

News developments that we’ll be keeping an eye on at Sokolove Law:

Water, water, everywhere…and not all of it fit to drink. That’s the main thrust of a New York Times analysis of federal data that shows 20 percent of U.S. water treatment systems violated the Safe Drinking Water Act over the last five years — but only 6 percent have been fined or punished for it by state or federal officials.

Brain waved: The Associated Press reports the FDA is investigating reports of dangerous radiation levels associated with brain scans at two California hospitals, following its earlier probe of unsafe CT scans at a Los Angeles facility, Cedars-Sinai Medical Center.

Recent Recalls….About 24,000 Amby Baby Motion Beds have been recalled following two infant suffocation deaths this summer. The U.S. Consumer Product Safety Commission says that the side-to-side tilting of the hammock can cause an infant to roll and become trapped or wedged against the fabric or mattress pad, resulting in a suffocation hazard.

Life can be unpredictable – and full of risk. If you’ve suffered a personal injury, you can count on Sokolove Law to protect your rights.

A few weeks ago I had a minor dental procedure and as the dentist was preparing my mouth; his hygienist explained each step that they would be doing:

“Finally,” she said, “we’re going to stretch a small piece of rubber over your mouth.”

 “What’s that for?” I asked. 

“It’s to be sure we don’t drop anything down your throat,” the Doctor interrupted with a wry, but nevertheless unsettling smile that could imply only one thing…at some point some dentist must have dropped something down someone’s throat. To be honest, I was happy for the precaution.

 Medical error is no laughing matter. We’ve all heard the horror stories—wrong body parts amputated, wrong procedure performed, mix ups with babies, etc.  All told, according to the U.S. Department of Health and Human Services, medical errors are responsible for injury in as many as 1 out of every 25 hospital patients; an estimated 48,000-98,000 patients die from medical errors each year. Errors in health care have been estimated to cost more than $5 million per year in a large teaching hospital, and preventable health care-related injuries cost the economy from $17 billion to $29 billion each year.

I’ve written before  about the risk of medical errors and the fact that hospitals don’t exactly encourage reporting or self-policing, but now it looks like the law is discouraging transparency, too. I recently came across an article in the Hartford Courant.  The sub headline is worth repeating here:

“A state law intended to protect patients by making them aware of hospitals’ errors has ended up making it easier for hospitals to avoid scrutiny.”

You can read the entire article here.  But here’s the gist:

 “Connecticut law requires hospitals to tell the state Department of Public Health when certain medical errors harm patients. But some tweaks that were made to the law five years ago mean that hospitals report far fewer incidents and those incidents that are reported are often kept secret from the public.”

The article refers to a 2004 revision of Connecticut law that limited the type of so-called adverse events that need to be reported, and allowed data to be kept secret.  According to the Courant’s analysis:

“The details of more than a dozen sexual assaults are concealed in the health department’s files, along with at least 30 cases in which sponges or other objects were left in patients’ bodies after surgery,”

Evidently the law was changed to provide for secrecy of the data because some of the reports of error were becoming public, and hospitals feared that patients would shop around based on incidence of error statistics.  That’s right, because patients might shop around and make an informed decision to go to a hospital that has less errors, the solution agreed to by all is to keep most of that data private.

I respectfully rest my case as to the need for a civil justice system as a safety net.  All those who argue for tort reform by saying that hospitals can self-police need only look to Connecticut and Rhode Island to understand why that will never happen.

The bottom line is that most doctors (and my dentist, thank you very much) are excellent. However, as a profession they do make mistakes, and sometimes those mistakes are negligent.   When those mistakes happen, the victims should be compensated, the problem should be acknowledged, and steps should be taken to ensure it never happens again.  If all that could be done without the threat of legal action, I’d gladly retire tomorrow, but it can’t, and so long as lawyers are needed for victim’s rights, we’ll be around.

I have a friend who recently told me the story of going into the hospital for surgery to repair a hernia.  As he was wheeled into the operating room before the anesthesia was administered, he announced to the nurses and doctors present:  “Now, I want everyone in the room to listen to me.  I’m here for a hernia; I don’t want to wake up with an arm or a leg missing.”

At first, my friend’s story was humorous, and it reminded me that he can be a bit of a worrier.  But when I read news last week about Rhode Island Hospital, I thought maybe my friend was right to be so concerned.

The hospital is being fined $150,000 by the R.I. Department of Health after having five so-called “wrong-site” operations since 2007. In addition to the fine, the hospital will have to install video cameras in all of its operating rooms and all surgeries will have to be watched by a clinical professional, not on the surgical team, trained in surgical safety measures.

Few people could argue with the notion that hospital operations performed on the wrong body part are events that should never happen, but at one hospital, these so-called wrong-site operations have taken place five times since 2007.

This is not the first time Rhode Island Hospital has faced controversy, in fact this issue has been brewing for some time.  Surgeons there drew scrutiny in 2007, after three separate brain surgeries were done in the wrong locations and earlier this year, a surgeon operated on the wrong side of the mouth of a patient with a cleft palate.

Naturally it goes without saying that operating on the wrong body part is among the more egregious examples of medical malpractice, and the extreme case of a breakdown of communications and safety protocols at hospitals.  While we debate health care reform in Washington, more emphasis needs to be placed on improving quality and systems so we can prevent what’s happened in Rhode Island.  In the meantime, when medical malpractice does occur, real people are often irreparably harmed.  Those victims have legal rights.  To find out more, visit our website.

Patricia Copening careened down US 95 in Nevada and struck two men attempting to change a flat tire, killing one and causing severe injuries to the other. She wasn’t coming from a keg party or neighborhood bar; no bartender helped her get to this point. Rather, she was coming from a local pharmacy at the nearby Wal-Mart, where she’d just seen the pharmacist.

Her victims and their families are now raising questions and tracing accountability back to the pharmacy. Copening was considered a potential prescription drug abuser, which state officials had documented and reported to 14 pharmacies in the Las Vegas area after she purchased nearly 4,500 doses of prescription pain killers in one year. Nevada pharmacies have been reporting prescription drug use to the state and receiving advisories about potential drug abuse since 1997.

Mandated monitoring in more than 30 states comes in response to the sharp rise in prescription drug use—and abuse—over the past 20 years. At the same time, electronic health records, networked pharmacy computer systems, and state prescription-tracking databases have become more efficient and ubiquitous, combining to allow medical professionals insight to potentially alarming data.

So what was the responsibility of the pharmacy to act on this information? A trial judge dismissed the case, stating that Wal-Mart wasn’t responsible because while the state reported information, they never told pharmacies what they should do with the information they received.  The Nevada Supreme Court is considering the case now.  In 1994, the Indiana Supreme Court ruled that a pharmacy has a duty to stop dispensing painkillers to a patient refilling the prescription more frequently than “would be appropriate.” Pharmacy chains party to the case, including Wal-Mart, CVS Caremark, and Walgreen, are watching it closely.  Though they’ve long faced liability for actions such as incorrectly filling a prescription, this decision could open them up to broader and more far-reaching responsibility with what happens after their prescriptions leave the store.

MRI, or magnetic resonance imaging is a powerful technology that can be used to produce incredibly accurate pictures of the inside of the human body.  But according to some researchers, what you don’t see could kill you.

That’s because MRI’s use contrast agents, drugs administered by radiologists that once inside the body, dramatically improve the visibility of the patient’s internal body structure.

It is undeniable that MRI, and the use of contrast agents have dramatically improved doctor’s ability to diagnose all kinds of illnesses from cancer to a broken hip.  But in recent years there have been reports that the contrast agents, thought to be benign may in fact bring some very dangerous side effects.

In May of 2007, a previously undisclosed FDA Report: “Undeniable” Association between Gadolinium-Based Contrast Agents and NSF, found that certain contrast agents containing gadolinium had been linked to a fatal disease called Nephrogenic Systemic Fibrosis (NSF)

The report by the FDA’s Dr. Melanie Blank, a kidney specialist, concluded that an “undeniable and strong association” existed between contrast agents containing gadolinium and NSF.

Nephrogenic Systemic Fibrosis (NSF) is a potentially fatal disease that is characterized by painful swelling and thickening of the skin. There is no known cure or definitive cause for NSF, though it appears to affect only MRI patients who have kidney problems.

This alleged link has caused a lot of headaches for GE maker of a contrast agent know as
Omniscan.  Similar drugs made by Bayer and others have also been tied to NSF.

As you might imagine these cases have caught the eye of regulators.  In May of 2007, the FDA asked manufacturers to include a new boxed warning on the product labeling of all gadolinium-based contrast agents which are used to enhance the quality of magnetic resonance imaging (MRI).  The FDA’s notice is here.

According to Jeff Gerth over at ProPublica:

People with NSF, or relatives of those who have died, have filed more than 400 lawsuits in U.S. federal courts against GE, Bayer and two other makers of similar drugs in the past several years. About 100 cases don’t concern Omniscan. Of the roughly 300 that do involve the GE drug, about 70 percent relate exclusively to Omniscan, according to court records and lawyers on both sides.

If you think you or someone you know is suffering from side effects associated with a contrast agent, or related to your MRI, please contact us, you may be entitled to compensation for your injuries.