Georgia Injury Lawyer Blog

It was reported today that a Rhode Island hospital has been fined $50,000 by the Rhode Island Department of Health and reprimanded after a doctor performed brain surgery on the wrong side of the patient’s head.

According to reports, this was the third time this year at the particular hospital that a doctor performed brain surgery on the wrong side of the patient’s head.

The most recent case happened last Friday when the Chief Resident began surgery on the wrong side of an 82 year-old patient’s brain. Fortunately, the patient is reported to be doing okay after the surgery. In February of this year, a different doctor performed neurosurgery on the wrong side of another patient’s head. That patient was reported to be doing okay as well.

However, in August of this year, a patient died a few weeks after a third doctor operated on the wrong side of his brain. That death prompted the State Department of Health to order the hospital to take steps to ensure such a mistake would never happen again. Obviously, if the hospital did take such steps they were ineffective. The hospital is a teaching hospital for Brown University.

Last Friday, the Food and Drug Administration (FDA) issued a safety review of Tamiflu, manufactured by Roche, and Relenza, manufactured by Glaxo Smith Kline. Both of these drugs are designed to mitigate the effects of the flu. The review addresses the potential dangerous effect these drugs can have on children.

The FDA began reviewing Tamiflu in 2005 after it received reports of children experiencing neurological problems, including hallucinations and convulsions. Twenty five patients under the age of 21, most of them in Japan, have died after taking the drug. Five of these deaths resulted from children becoming involved in accidents after taking the drug. There have been no reports of child deaths connected with Relenza, but there have been reports of children taking the drug showing similar neurological problems to those involved with Tamiflu.

The FDA has recommended adding language about the possible side effects to labeling for physicians who prescribe Tamiflu and Relenza. Additionally, an outside group of pediatric experts is scheduled to begin a review of the safety of these drugs when used for children.

Late last week, Baja Motor Sports of Phoenix in conjunction with the Consumer Product Safety Commission issued a recall for 16,000 all terrain vehicles marketed for children as young as 12. The Baja 90, Baja Wilderness 90 and Baja Wilderness 90U four-wheel ATVs were recalled because they are missing a tire pressure gauge and a flagpole mounting bracket. Although neither the CPSC nor the company reported any injuries, they did consider the lack of the items to be a potential danger. These particular vehicles were sold on line and at retail outlets such as Pep Boys between November 2004 and July of this year.

In May, another Chinese-made ATV was recalled because it lacked a stop-engine switch and other safety features.

Competitors have raised safety concerns about Chinese-made ATVs. Established ATV manufacturers contend that the cheaper imported ATVs, which are making up a growing share of the U.S. market, are less likely to meet voluntary safety standards adopted by the domestic industry. As a result, the larger ATV manufacturers are lobbying Congress to make the current voluntary safety standards mandatory.

It is estimated that approximately 22 million people ride ATVs in the United States. In 2005, more than 40,000 children under 16 were hurt and at least 120 were killed in ATV accidents according to the Consumer Federation of America.

The United States Court Of Appeals for the 5th Circuit has ruled that a whistleblower who accepted a settlement for his claims, including $3.5 million in "additional damages," can't exclude that amount from his income as compensation for personal injuries. He case is Green v. Commissioner, U.S. Court of Appeals, 5th Circuit No. 06-60597. Nov. 7, 2007.

The taxpayer received the money in settling a retaliation lawsuit against a state department from which he was fired. A jury had awarded him $3.4 million in compensatory damages and $10 million in punitive damages. After many attempts top collect the judgment from the state failed, the suit finally settled. The plaintiff then attempted to exclude $3.5 million designated as "additional damages" from his taxable income.
The IRS countered that the "additional damages" were not damages received on account of personal injury or sickness, and therefore were taxable income.

Acknowledging the claims underlying the plaintiff’s claims were tort-like, the Court nevertheless agreed with the IRS. "Ultimately, the character of the payment hinges on the payor's dominant reason for making the payment," the court held. " The “amount of compensatory damages awarded by the jury in the whistleblower lawsuit for the loss of earning capacity and past and future mental anguish and suffering, [$3.5 million], mirrored exactly the amount of compensatory damages paid under … the settlement agreement. The logical import, then, is that the remainder of the settlement, including the amounts paid under [the "additional damages" provision], was intended to compensate [the taxpayer] for the remainder of the judgment - consisting only of punitive damages and interest."
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This week, California’s Attorney General filed a lawsuit against 20 companies implicated in the various lead-tainted toy recalls of 2007. Among the companies named in the lawsuit are Mattel, Fisher-Price, Toys R Us, Wal-Mart, Target, Sears, K B Toys, Costco Wholesale, Eveready Battery Company, K-Mart, and Marvel Entertainment.

The lawsuit alleges that the companies violated the California Safe Drinking Water and Toxic Enforcement Act of 1986 since they failed to notify customers of toys in the marketplace that contained high concentrations of lead. Although the federal government doesn’t require such labeling, California does.

The lawsuit contends that the companies knowingly exposed individuals to lead and did not provide warnings about the risk. Lead is known to cause cancer and reproductive harm, as well as other effects, such as learning disabilities in children. The lawsuit seeks to force manufacturers and retailers to adopt procedures for inspecting products to make sure they are safe. There is a statutory penalty of up to $2,500 for each item sold officials said.

Mattel, Inc. has responded by saying that they are in communication with the California Attorney General’s Office and have cooperated fully in the matter. According to a Wall Street Journal article, the Chairman and Chief Executive Officer of Mattel, in discussing the Consumer Product Safety Comission, previously stated the company discloses problems on its “own timetable because it believes both the law and the commission’s enforcement practices are unreasonable”.

According to the Attorney General of California, some of the companies are currently in confidential settlement negotiations. This lawsuit coincides with other organizations' calls for Congress to ban lead in childrens’ toys altogether and to increase funding for the Consumer Product Safety Commission.

Our serious injury lawyers are frequently litigating car collision cases in which the driver causing the serious injury was using a cell phone while operating the vehicle.

Research has consistently shown that operating an automobile while talking on a cell phone, either hand-held or hands-free, increases the risk of an accident by three to four times that normally experienced by attentive drivers. The general consensus of the scientific community is that there is little, if any, difference in crash rates involving hands-free versus hand-held cell phones. The very fact that one is engaged in a two-way conversation on a cellular phone, not the fact that one is holding the phone, is what causes a cognitive distraction which leads to the increased rates of collisions. Scientists have named this condition “inattention blindness”. This condition inhibits drivers’ abilities to detect changes in road conditions while they are carrying on a two-way conversation.

Several states and several communities have worked in a variety of ways to reduce dangers caused by this driver distraction. The highest standard prohibits use of any hand-held cellular phone but permits drivers to use hand-free devices. The District of Columbia, Connecticut, New Jersey and New York have adopted this standard. Eight states have banned school bus drivers from talking on any type of cellular device.

In 2004, a National Highway Traffic Safety Administration study estimated that at any given moment in daylight hours, 8% of all drivers are operating a vehicle while talking on a cell phone. This is two times the estimated number of drivers talking on a cell phone in the year of 2000. It is anticipated that the statistic will continue to increase.

Even if states were to enact regulations concerning the use of hands-free cell phones, enforcement would be problematic at best. While traffic officers can easily see if a driver is using a hand-held cell phone, it would be almost impossible to determine if a driver is using a hands-free cell phone.

In light of this continuing and increasing problem, the Center for Auto Safety has petitioned the National Highway Traffic Safety Administration for a rule banning the use of any sort of two-way cellular device while operating an automobile. The Center for Auto Safety contends that what was once a essentially helpful technology has become a source of dangerous driver distraction. They point out that in search of new profit centers, major auto companies are marketing devices which make it easier for one to carry on conversations while operating a vehicle. One example cited is General Motors, the owner of the Onstar System. What was once an emergency communication system has now been expanded to allow personal cell phone calls as an integral part of the Onstar System. According to the Center for Auto Safety, GM has tried to expand the scope of its Onstar service by adding email, movie listings, personalized news, sports reports and weather information while driving.

In light of the above, the Center for Auto Safety has petitioned for a rule prohibiting the use of any cellular phone or text messaging system while the vehicle is operating. They are proposing some sort of technology which would render these devices inoperable while the automobile is in motion.

Many of you have already read press reports about the recall of over 4 million children’s craft kits because they contain beads coated with a chemical that turns into a dangerous drug if ingested. We have previously blogged about problems with Chinese manufactured toys and the Consumer Product Safety Commission.

In light of the massive recalls of these extremely dangerous toys, one has to wonder why these toys reached the shelves of stores in the first place. Many consumer advocates are now contending that these toys would not have entered the stream of commerce if toy makers had been required to have them tested at independent labs before they were imported into the United States.

The United States Congress is now considering legislation which would require manufacturers to pay for independent tests by certified labs prior to these toys being imported into the United States. Had these tests been required, the massive number of toys containing toxic amounts of lead would not have made it into the United States.

The chemical suspected in Wednesday’s recall of the Aqua Dots product is banned for use in toys in the United States and had independent labs tested for it, it would not have made it to the shelves of the stores. Aqua Dots, which retailers expected to be a popular gift this Christmas season, consist of colored beads that can be arranged in different shapes. The coating on the beads contains glue that fuses them when they are sprinkled with water. They were sold from April 2007 until this month in the United States. Once ingested, the chemical breaks down into the drug gamma-hydroxybutyrata (GHB), which can render a person senseless and is commonly known as the “date-rape” drug. There have been reports of two children in the United States ingesting the beads, vomiting, and falling into temporary comas.

Many companies do hire labs to test products to ensure they meet safety standards. But toy industry officials have admitted that the largely voluntary system did nothing to stop the sale of millions of lead painted toys. Some toy industry officials have actually supported efforts in the United States Congress to require testing by independent labs.

Incredibly, as we have previously blogged, these recalls of dangerous toys are occurring at the same time that the head of the Consumer Product Safety Commission is opposing legislative efforts to give her commission enhanced powers to protect children from these same dangers.

When a client is so seriously injured that they may not be able to work again at the same job and will likely incur future medical costs, it may be prudent for the client to consider a structured settlement as opposed to a lump sum cash settlement if one is offered. Our attorneys have handled many serious injury cases where a structured settlement has truly been in the best interests of our client. This is particularly so in the context of cases where the client lacks financial sophistication and may need future medical assistance and may incur future lost wages.

Of course, the main hallmark of a structured settlement is a long term annuity which provides cash payment benefits usually over time, sometimes over the life of the client. Structured settlements can be set up in a variety of ways to provide for the client’s future financial needs. These annuity/structured payments can be paid monthly, annually, semi-annually and basically on any time schedule desired. The focus, of course, is to provide long term financial assistance for the client who may need it. If the client does not need long term financial assistance, then a structured settlement may not ever come into play. However, for those who are seriously injured, it is likely that they will need long term financial assistance. Because of the tax benefits of a structured settlement (the interest on the amount of the annuity purchased is not taxable to the client over the course of the annuity payments) in many cases it is advisable for the client to consider a structured settlement.

There are a lot of advertisements on television these days about how clients who have received structured settlements can “cash in” and receive their monies now. Obviously, these companies that offer to buy structured settlements do so at a steep discount thus essentially taking much of the client’s needed money away from them. Because some clients are poor money managers they often times they resort to these companies in order “to cash in” on their structured settlements and get a quick term cash infusion. This results in a huge loss to the client.

For our clients, we very carefully go over with them the pros and cons of structured settlements. They are not for everyone. However, in cases where the client will likely have problems in the job market and will likely incur future medical expenses, our experience has been particularly for those who are not financially sophisticated and/or capable of managing their own investments without assistance that theirs may be a case appropriate for this type of settlement. As long as the tax advantages of these structured settlements remain in place and as long as clients are informed about their options, we have found that many clients benefit from these types of settlements. While there will always be a cash portion of any such settlement, the structured portion can provide a much needed safety net for the seriously injured client well into the future.

Clients who have been seriously injured should always consul with experienced counsel about structured settlement annuities. They may be the very best option in the right case. Our experience has been that they can be extremely helpful for our clients, thus, our practice is to always discuss them with clients involved in serious injury cases.

One of the many difficulties faced by attorneys who work on serious injury cases arises in the context of a catastrophic injury case involving a child. Many times, due to limitations on the extent of their medical knowledge, the doctors treating the child cannot always give an accurate prognosis for the child. Thus, it can be difficult when a child has been seriously injured to accurately predict how the injuries will manifest themselves as the child grows older. In some very sad cases, of course, one of the issues is whether the child will even reach maturity given the severity of the injuries. In other cases, however, where the child is expected to live a normal life span it is vital that a Life Care planner become involved to assist counsel in determining what the costs of the child’s future medical needs will be.">catastrophic injury case involving a child. Many times, due to limitations on the extent of their medical knowledge, the doctors treating the child cannot always give an accurate prognosis for the child. Thus, it can be difficult when a child has been seriously injured to accurately predict how the injuries will manifest themselves as the child grows older. In some very sad cases, of course, one of the issues is whether the child will even reach maturity given the severity of the injuries. In other cases, however, where the child is expected to live a normal life span it is vital that a Life Care planner become involved to assist counsel in determining what the costs of the child’s future medical needs will be.

Our firm has worked with several very reputable and qualified Life Care planners with considerable expertise in this area. The Life Care planner is truly an expert consultant when it comes to providing financial estimates of the long-term medical costs involved in treating seriously injured children. If a child has been severely burned or paralyzed, if a child has lost one or more limbs or is blinded, if the child has suffered brain injury, whatever the case may be, obviously, counsel for the child and their parents must take into consideration future medical costs and needs when evaluating what amount of money should be sought from the party who caused such damages through their negligence. A Life Care planner with sufficient expertise to extrapolate into the future such medical costs (when assisted as well by a competent economist) can provide valuable information to the attorney in determining what amount of money will be needed to protect the child’s future and thus can help formulate a settlement demand in a serious injury case.

In any case involving a catastrophically injured child, not only do we work with an economist and Life Care planner, we try to make sure in consultation with the doctors involved that we have a very good understanding of their belief about the child’s prognosis. Once we know what the prognosis is believed to be and we consult with the doctor by and through a qualified Life Care planner who consults with them, we then can ask an economist to project over time what amount of monies will be needed in the future to protect the child’s interests. Once we know the amount of money needed to pay for future medical needs we can factor that amount into an overall settlement demand for our client. If we cannot get that amount in settlement, then, of course, we are also in the position to produce the same evidence to a jury for its consideration in resolving the case if need be.

Any case involving a seriously injured child is always a sad one. Our attorneys have seen many times just how stressful and painful these cases can be for the families of such children. Of course, the tragedy inflicted on the child would be compounded if future medical needs could not be provided. While some cases are even more tragic because of the lack of available insurance proceeds to protect the child’s future, in those cases where there is sufficient liability insurance coverage available to protect the child’s future needs, a qualified Life Care planner can be, quite literally, a life saver in the future.

In many of the medical negligence and pharmaceutical liability cases our lawyers handle, we find numerous perks being provided to prescribing physicians by drug companies.

The New England Journal of Medicine, the most prestigious medical journal in the country, has published an article concerning the relationship between doctors and drug companies. The article reports that several United States Senators have introduced a bill in the United States Congress that would require manufacturers of drugs and medical devices with annual revenues of more than $100 million to disclose the amount of money they give to physicians, in any form such as free dinners, vacations or consulting fees. Five states require such disclosures at the present time.

The article reports that the nature, extent and consequences of physicians’ relationships with the pharmaceutical and medical device industry is one of the most fiercely debated issues among health care providers. The relationships are seemingly everywhere according to the article. A recent study reported that almost all physicians, (94%) have some type of relationship with the industry. Most commonly, doctors reported receiving food and beverages in the work place, or being given drug samples by manufacturers’ representative. More than a third of the physicians reported receiving reimbursement for costs associated with professional meetings or continuing medical education; and, more than one quarter, (28%), receive payments for consulting, speaking or referring patients for medical study trials.

Although most physicians deny that receiving free lunches, subsidized trips or other gifts from pharmaceutical companies has any effect on their practice, research has shown that physician-industry relationships do influence prescribing behavior. It has been reported that the pharmaceutical industry spends approximately $19 billion each year establishing and maintaining these relationships with physicians.

The study acknowledges that there are some positive effects for patient care in these relationships. One example is that through an industry sponsored luncheon or dinner, the physician may learn about the beneficial effects of a drug and then prescribe it for a patient. The authors point out, however, that there is no reason why an educational activity has to be accompanied by an expensive meal or a trip to a tropical resort.

The authors also point out the many negative effects which these relationships can have. An example given is that a doctor with ties to the industry may be more inclined to prescribe a brand name drug despite the availability of a cheaper generic version. Also, industry relationships may stimulate premature adoption of novel treatments which could lead to serious health problems for the patients.

On June 15 of this year, we wrote an article on this blog about how pharmacy errors were causing serious injuries and wrongful deaths at an alarming rate on a nationwide basis. The problem about which we wrote unfortunately was the topic of a headline article in the news today concerning the death of a 3-year old child in Gainesville, Florida. This child died from a medication overdose. Instead of receiving the prescribed dose of a medication ordered by the doctor, the pharmacy gave him more than 10 times the amount ordered. The boy died because of this mistake.

According to the news article, a moratorium has been instituted at this facility until a quality assessment and new patient safety measures are implemented. Thus, we have one more statistic in this national problem, this time affecting a very small and innocent child and his family.

When receiving medication from a pharmacy, patients should always carefully review the label to make sure that the dosage appears to be correct. If they have any questions at all about this, they should confer either with their doctor or pharmacist. Because mistakes are made which can cause serious medical problems and/or death, not only must pharmacies be more careful but patients must also act to protect themselves. While a settlement was reached with the parents for the wrongful death of this child, obviously, no compensation can address the loss of a 3-year old child. While we hope that this problem can be effectively addressed by the pharmacy industry, until remedial steps are taken on a nationwide basis, more headlines of a similar nature are likely to be seen.