Georgia Injury Lawyer Blog

Drug manufacturer Genentech has been involved in a dispute with physicians over the use of its drug Avastin. Ophthalmologists became concerned last October when Genentech announced it was changing the distribution channels for Avastin, which would make it much more difficult for patients to receive the drug. Doctors accused the company of making the change to force the use of its more expensive drug, Lucentis.

Lucentis is approved to treat macular degeneration, a condition that causes blindness and is encountered frequently in elderly patients. It costs approximately $2,000 per injection. Most patients require monthly injections.

Many ophthalmologists have been Avastin, which is approved only to treat cancer, but works in the same way as Lucentis. Compounding pharmacies divide a vial of Avastin into small portions for use in the eye. In small doses, Avastin costs between $20 to $100 per injection.
Genentech announced in October that it would no longer sell Avastin to compounding pharmacies.

However, after an inquiry by Senator Herb Kohl of Wisconsin, Genentech and two announced that doctors would be able to purchase Avastin themselves and have the drug delivered to compounding pharmacies.

As serious injury attorneys we frequently see cases in which insurance companies refuse to pay for treatment for their insureds, knowing that any appeal by the insured will take months, if not years, and that there is no legal remedy which can force the companies to offer timely treatment. In fact, in many cases the only legal remedy is that the company will be required to pay what they already owe, with no allowance for attorney fees and expenses. Unfortunately, in many cases the remedy comes too late.

An article was just published describing how a 17-year old died just hours after her health insurance company reversed its decision not to pay for a liver transplant that doctors said the girl needed. Nataline Sarkisyan died last Thursday night at University of California, Los Angeles Medical Center. Nataline had been battling leukemia and received a bone marrow transplant from her brother. She developed a complication, however, that caused her liver to fail.

Doctors at UCLA determined she needed a transplant. They sent a letter to CIGNA Healthcare on Dec. 11. requesting approval for the procedure. Cigna denied payment for the transplant. Last Thursday, about 150 teenagers and nurses protested outside a California CIGNA office. The company then reversed its decision and said it would approve the transplant. But, it was too late.

Nataline’s mother was quoted as saying that CIGNA was responsible for her daughter’s death. CIGNA issued a press release stating that: "Our hearts go out to Nataline and her family, as they endure this terrible ordeal."
This rings hollow, as CIGNA has just saved thousands of dollars to increase its profits.

Companies that produce dangerous products suffered a major defaet last week in the United States House of Representaatives. By a vote of 407 to 0, the House of Representatives passed legislation reauthorizing the Consumer Product Safety Commission (CPSC) and included statutory language specifically prohibiting the CPSC from issuing any rule or regulation that expands the scope of federal preemption of state law.

During the Bush administration, the CPSC has issued rules and regualtions which it argues preempt state laws governing dangerous products, thereby depriving innocent parties injured by these products from seeking redress in the courts. Obviously, based upon the vote, both Democratric and Republican lawmakers in the House recognized the dangers of this practice.

Seeking to end this unfair practice, the House Energy and Commerce Committee included specific language in the Committee Report, which is the official statement of congressional intent. The Committee Report language formally and specifically disapproves the CPSC’s effort to override state common law by including preemption language in preambles to its proposed rules and final rules. Specifically with regard to preemption language in the preamble to a recently issued rule on mattress flammability, the Report states “this preamble should not be accorded deference by State or Federal Courts.”

The Report specifically identifies the importance of “tort actions based on negligence” which the Committee says “are predicated on procedures and standards developed over hundreds of years of American and English jurisprudence.” And it says this about the preservation of common law remedies generally: “The preemption provisions of the statutes under the jurisdiction of the CPSC are clear, and State common law actions and standards are not preempted.”

The bill will now go th the Senate for action.

Bad faith insurance claims have always been difficult because the insurance industry has routinely been able to hide behind restrictive laws designed to protect them from even egregious conduct. However, a case pending in Missouri may change this situation.

A Jackson county Missouri trial judge issued an order directing Allstate Insurance Company to produce records which the Plaintiff lawyers allege show how Allstate set up a claims payment system in the 1990s that shortchanges clients while earning huge profits. Despite the judges directive, Allstate refused, and drew a $25,000 per day fine from the judge. The fine, which began in mid-September is now approximately $2.4 million.
Last month, the Missouri Supreme Court ordered the documents produced, but Allstate, has stated it will not produce these records for public view no matter how much the court fines it.

Allstate contends the documents are trade secrets used to create company policies, methods and claims procedures.

The case stems from a car wreck seven years ago. Allstate’s insured struck the rear of a truck and severely injured the driver. He is suing Allstate for bad faith for refusing to pay the claim for years. The case is still pending.

Our serious injury lawyers often request information from governmental agencies in efforts to help our clients. Many times, despite laws requiring disclosure, our requests are routinely denied or ignored.

The Bush administration has consistently pushed toward secrecy in government. Former Attorney General John Ashcroft had issued an order instructing agencies to lean against releasing information if there was any uncertainty about how it would affect national security.

Now the Congress is fighting this trend by passing legislation which would expand the Freedom of Information Act ( FOIA), increase penalties for noncompliance and make records held by government contractors subject to disclosure.

The bill restores a presumption of disclosure standard which requires agencies to release requested information unless there is a finding that such disclosure could do harm.

Agencies would be required to meet a 20-day deadline for responding to requests. Their FOIA offices would have to forward requests for information to the appropriate agency office within 10 days of receiving them. It they fail to meet the 20-day deadline, agencies would have to refund search and duplication fees for noncommercial requesters. They also would have to explain any redacted information by citing the specific exemption under which the information qualifies. Nonproprietary information held by government contractors also would be subject to the law.

A previously passed version of the bill was rewritten address concerns about how government agencies would pay for attorneys' fees when they lose or settle a Freedom of Information Act lawsuit.

The legislation also creates a system for the media and public to track the status of their FOIA requests. It establishes a hotline service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.

A disturbing study by the Massachusetts General Hospital was reported in the December 6, 2007 issue of the Harvard Crimson Newspaper. The paper reported that the study disclosed that nearly half of the doctors surveyed are more likely to protect their colleagues than their patients. Forty percent of the doctors admitted to not reporting a serious medical error they had witnessed. Likewise, forty-five percent admitted to not reporting a physician who they knew to be impaired or incompetent.

Additionally, the study found that the physicians had failed to live up to standards in preventing the waste of medical resources, with over one-third accommodating the patient who insisted on a test the doctor knew was unnecessary. Doctors were also revealed to be very poor at managing economic conflicts, with the majority saying they would refer patients to facilities in which they had financial stakes. Nearly one-quarter of the doctors stated they would not inform the patient of this potential conflict, even though such activities could be considered illegal under medicare rules.

The researchers interviewed 1,662 practicing physicians including three groups of primary care doctors, - internists, family practitioners and pediatricians and three groups of specialists, - surgeons, anesthesiologists and cardiologists.

We have previously written about mandatory arbitration clauses. Just a few years ago, Congressional Republicans made it a priority to limit almost all litigation against businesses. Now, legislation is advancing which could make it easier for consumers to have their complaints heard in the courts. At issue is the fine print in many contracts for goods and services, such as credit cards and cell phones, requiring that any disputes be submitted to arbitration by a third party. Critics of these provisions contend that they deny consumers a basic American principle, the right to go to court. Business groups argue that arbitration clauses prohibit costly litigation which only generally benefits lawyers. Consumer advocates counter that these clauses are unfair, arguing that the arbitration process often favors businesses, because arbitration firms rely on the companies for repeat business and are not inclined to rule against them.

The most controversial piece of legislation pending before Congress was introduced by Georgia Representative Hank Johnson. This legislation would make arbitration voluntary in all consumer, employment, franchise and medical contracts. Johnson reported that he introduced the measure after he considered building a home and found a mandatory arbitration clause in every home construction contract he was presented. Johnson said parties in dispute should be free to turn to the Courts, arguing that mandatory arbitration amounts to a private judicial system that benefits commercial interests at the expense to consumers.

As an example, at one of Johnson’s hearings, the owner of a coffee franchise in Annapolis, Maryland reported that an arbitration with a coffee company took place in Michigan, 5,000 miles from her home and cost her more than $100,000. She was quoted as saying “we never knew how precious our constitutional rights were until they were stolen from us by a binding mandatory arbitration clause.”

Our motorcycle accident injury attorneys have successfully concluded a case involving a young man who lost control of his motorcycle in Carrollton, Georgia in May of 2005. The client was operating his motorcycle in the City of Carrollton near the Southwire Plant. As he approached a curb in the road, the lane was littered with gravel, dirt and other debris. The client had a split second to decide what action to take. Instead of attempting to engage his brakes, which he felt would result in disastrous consequences, he elected to attempt to ride through the debris. As he did, he lost control of the motorcycle, slid a distance on the concrete, and impacted with the curb.

The evidence established that in the immediate vicinity of the incident, the City of Carrollton had previously replaced a fire hydrant and a water meter as well as removed and replaced a concrete curb. According to the testimony, this work was completed approximately three months prior to the incident with our client.

Our attorneys alleged that the city was negligent in backfilling the area behind the curb and allowing the debris to flow into the street, as well as a violation of statutory duty to keep the streets in repair and safe condition.

The defendants countered that they were not responsible for the debris in the road, that our client’s accident was caused by excessive speed.

The client suffered a severe break to his right leg which resulted in several surgeries and has left him with a permanent limp.

After extensive discovery and depositions, our attorneys were successful in concluding the case for $675,000.00, which is considered to be a very large recovery in the Carrollton area.

Having seen past injuries and deaths occur because theater safety principles were disregarded in using orchestra pits in Atlanta, our Georgia Injury Lawyer Blog attorneys shuddered upon reading that it had happened again in Atlanta. A 17 year-old dancer wearing a Panda costume reportedly suffered critical injuries when she fell some 12 feet into the lowered orchestra pit of the Fox Theater, during a performance of the "Nutcracker" by the Atlanta Ballet.

The orchestra pit contained no orchestra, but was apparently lowered to this great depth anyway, without "fall protection" measures that were sufficient to prevent such a long fall by the young dancer, a high-school student. As it should, OSHA is reportedly investigating the incident.

For our attorneys, it brought back lessons that should have been learned in the theater world when a young boy died after a fall in 2000, through a concealed opening into the unprotected orchestra pit at the Atlanta Civic Center. He survived in a coma for more than a year as he was cared for by his parents, two of our most remarkable clients ever.

The evidence we gathered in that case showed that theater safety principles are too often ignored, until they result in life-threatening injuries or deaths. At the Civic Center, it was most disturbing to learn that a man had died before our young client, when the man fell into the unprotected orchestra pit from the stage.

It was also shocking for us to discover that two children had fallen through the same opening into the orchestra pit in 1995--and yet the orchestra pit was still left unprotected. Our theater safety experts documented that such injuries and deaths are far too foreseeable--and avoidable--when proper attention to basic safety rules is practiced.

While the settlement of that case at the Civic Center was reportedly one of the largest ever paid by the City of Atlanta (and there were other defendants as well), the family's nightmare was in no way erased.

Our thoughts and prayers are with the young dancer, and we wish her a speedy recovery. We hope that theater professionals heed the lessons of theater safety to protect performers and patrons from preventable injuries.

Our dangerous drug attorneys often review cases in which an inappropriate drug was prescribed for a patient. Public Citizen is a national, nonprofit consumer advocacy organization founded in 1971 to represent consumers’ interest in Congress, the executive branch and the courts. In the latest newsletter from The Health Research Group, a division of Public Citizen, there is an interesting article concerning direct advertising by pharmaceutical companies.

The article points out that other than New Zealand, the United States is the only country that allows direct to consumer advertising by pharmaceutical companies.

According to Public Citizen, the drug companies have become masters at targeting patients and spurring prescriptions through these ads. Most of the time, the ads encourage patients to use newer medications, exposing them to drugs with weaker safety records, and driving up the cost of health care. The ads have also been shown to omit important safety information, while attempting to transform patients into agents of the drug companies pressuring physicians for drugs they see celebrated between television shows.

Many physicians complain that the direct to consumer advertising makes their job much more difficult since some patients insist on having particular drugs prescribed that are not necessarily in the patients best interest.

Last week, two Georgia nursing homes were added to the list of the worst in the country according to federal data.

The Place at Augusta and Shoreham of Marietta were cited for deficiencies and placed on the list of the worst nursing homes in the country by the Centers for Medicare and Medicaid Services. These two homes in Georgia were among 54 nursing homes in 33 states that failed to improve quality of patient care and/or administrative services over the last year.

According to the report, The Place at Augusta has been on the special focus list for 34 months, and Shoreham of Marietta for 21 months. The Centers for Medicare and Medicaid Services compiled this list and published it in an effort to pressure targeted nursing homes to improve.

An inspection report at Shoreham of Marietta from March 14th listed 18 health care deficiencies at the 154 bed center. Two of the deficiencies received a rating of four, which means that there is an immediate jeopardy to resident health or safety. Shoreham was also cited for nine fire safety violations in the year 2007.

A third Georgia nursing home, Laurel Baye Health Care of Lake Lanier was listed on the report as well. However, officials later corrected the report stating that the inclusion of this nursing home was an error.

The United States Supreme Court heard arguments yesterday in a case which may have a major impact on lawsuits against medical device makers brought by patients who have been injured by defective products. The Supreme Court will be asked to consider whether patients can bring lawsuits over defective devices which have been cleared for sale by the Food and Drug Administrations’ approval process. In this case, a federal appeals court barred a suit which claims a New York man suffered permanent injury when a Medtronic heart catheter burst during a heart procedure.

The decision of the lower court would undercut thousands of lawsuits, including cases over defibrilators made by Medtronic and Boston Scientific Corp. Guidant unit. The ruling may also shield Medtronic from suits over its recalled Fidelis defibrilator wires. In 1996, a divided Supreme Court allowed lawsuits over products approved through a separate Food and Drug Administration approval process that provided for fast-track reviews of devices. The case before the Supreme Court concerns a pre-market approval process which is a more intensive FDA review.

The Bush administration is not surprisingly backing the medical device makers in their argument that the federal pre-market system should preclude claims that companies ought to have done more to ensure safety.

The current Supreme Court has almost uniformly ruled against plaintiffs in insurance and antitrust, as well as products cases.

On November 21, 2007, the Supreme Court of Georgia issued an important opinion in Dees, et al. v. Logan, involving uninsured motorist coverage in the state of Georgia. The question presented to the Supreme Court was whether a damage award to an insured can be offset by workers’ compensation or similar benefits paid to the insured. The Court answered with a resounding “No”.

Dees and his wife brought suit against a defendant seeking damages for injuries suffered in an automobile collision. The jury awarded the Dees $130,000 for lost wages, $4,939 for reimbursement of COBRA payments, $10,000 for pain and suffering and $5,000 for loss of consortium. The Dees uninsured motorist carrier, State Farm, argued that it could offset the jury’s award by the amounts Dees had already received in workers’ compensation benefits, social security disability benefits and a pretrial settlement with the defendant’s liability insurer. The State Farm argument was based upon policy language that “any amount payable shall be reduced by any amount paid or payable to or for the insured: (a) Under any workers’ compensation, disability benefits or similar law”.

The trial court accepted State Farm’s argument and ordered that the Dees recover nothing from State Farm under their uninsured motorist policy. The Court of Appeals upheld the trial court.

However, the Supreme Court, interpreting the Georgia uninsured motorist statute. held the only damages which may be set off are those involving property or physical damage. Thus, the Court held that there could be no set off of benefits received for personal injury.

The Supreme Court soundly rejected State Farm’s argument that the Dees would be gaining a double recovery if it were now allowed to set off the benefits. The Court pointed out that State Farm is not paying twice; but, the Dees were merely recovering sums due from the defendant, the owner of the uninsured motor vehicle, and benefits they were otherwise entitled to receive from other sources.

In the case of Green Tree Financial Corp. v. Bazzle, 123 S.Ct. 2402, (2003) the U.S. Supreme Court opened the doors to class action arbitrations. The Court held that if an arbitration clause is silent regarding class actions, it's up to the arbitrator (applying state law) to decide whether class arbitration will proceed.

Banks, credit companies and employers which traditionally have favored mandatory arbitration clauses, have been adding waivers to arbitration contracts specifically exempting class actions from arbitration. Consumer lawyers have responded by challenging the waivers in both state and federal court.

Historically, consumer rights lawyers have opposed clauses in consumer and employment contracts that mandate arbitration to resolve disputes, claiming that the binding nature of arbitration violates plaintiffs' due process rights. But given the choice between no class action and class action arbitration, consumer attorneys obviously favor the clauses.

According to Public Justice, a pro-consumer lawyers group, class action bans have been successfully challenged in several states:

The California Supreme Court held earlier this year held that a class action arbitration waiver might be contrary to public policy (Gentry v. Superior Court, 165 P.3d 556).

The Washington Supreme Court last year struck down Cingular Wireless's class action arbitration ban as "unconscionable" under state law. (Scott v. Cingular Wireless LLC, 161 P.3d 1000).

The New Jersey Supreme Court held in 2006 that a provision in an arbitration agreement prohibiting class actions was unconscionable, but severable, so that the plaintiff may pursue class-wide arbitration. (Muhammad v. County Bank of Rehoboth Beach, 912 A.2d 88).

Public Justice also points out that arbitration clauses have been struck down as unconscionable by many courts, including the 9th Circuit; U.S. District Courts in Arizona, California, Florida, Massachusetts, Michigan, Missouri, and Washington; state high courts in Alabama, California, Illinois, New Jersey, Washington, and West Virginia; and state appellate courts in Florida, Missouri, Ohio, Oregon, Pennsylvania, and Wisconsin.

However, many other state courts have upheld arbitration ban clauses. These include Colorado, Delaware, Georgia, Hawaii, Louisiana, Maine, Maryland, Michigan, Mississippi, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah and the District of Columbia.

Both sides expect that either Congress or the U.S. Supreme Court will eventually have to step in to determine the legality of class action arbitration bans.