Georgia Injury Lawyer Blog

In 2006, a disabled and brain damaged man, near death, was taken into an operating room at a California hospital in order to harvest his organs for donation. Law enforcement officials contend that what occurred in the operating room was a criminal act. The surgeon, Dr. Hootan Roozrokh has been criminally charged with prescribing excessive and improper doses of drugs, apparently in an attempt to hasten Mr. Navarro’s death to retrieve his organs sooner. The doctor is facing three felony counts relating to his actions

Central to the case is whether Dr. Roozrokh was pursuing organs at any cost or had become entangled in a web of misunderstanding about a lesser-used harvesting technique known as donation after cardiac death. Dr. Roozrokh has pleaded not guilty.

Transplanting organs from patients whose hearts have stopped, or cardiac-death donations, began to go out of vogue in the late 1960s and early ’70s after medical advances like life support and subsequent changes in the legal definition of death made donations from those declared brain dead more efficient. But health officials have encouraged cardiac-death donations in recent years.

There were 670 cardiac-death donations through the first nine months of 2007, the most in any year this decade, according to the United Network for Organ Sharing, which oversees organ allocation. Over the same period, there were 12,553 brain-dead donations, according to the network.
In brain-death donations, the donor is legally dead, but machines keep the organs viable by machines. In cardiac-death donations, after the patient’s ventilator is removed, the heart slows. Once it stops, brain function ceases. Most donor protocols call for a five-minute delay before the patient is declared dead. Transplant teams are not allowed in the room of the potential donor before that.

Last Wednesday the Supreme Court of the United States made it harder for injury and wrongful death victims to sue manufacturers of federally approved medical devices. This decision will also impact cases involving dangerous drugs. The issue before the Supreme Court was whether the Estate of Charles Riegel could sue a company under state law over a medical device which had previously been cleared for sale by federal regulators. Under federal law, a company must prove the safety and effectiveness of a medical device before the United States Food and Drug Administration will approve it for the marketplace. In an 8 to 1 decision, the Court ruled against the Estate of the injured patient who suffered serious injuries when a catheter burst during a medical procedure. As a result of this Supreme Court decision, state lawsuits are barred to the extent that they might impose requirements that are different from federal requirements. In other words Federal law will prempt state law where the two are in conflict or different. Not surprisingly, the Bush Administration sided with the medical device industry, saying unfavorable state jury verdicts would force companies to alter product designs or product labels that had already gotten FDA approval. This case is bad news for people injured by defective medical devices. The fallout from last week’s Supreme Court decision in this case will no doubt be felt throughout the country. Attorneys with cases pending against device makers such as Medtronic, Stryker and Johnson & Johnson expect these companies to file Motions to Dismiss the lawsuits which are currently pending. Lawyers also are concerned that this ruling may prompt judges to dismiss product-injury lawsuits before injured plaintiffs can gain access to data that might prove that the companies used false or misleading data to get government approval to market the devices.

Atlanta TV stations are reporting that this afternoon, a car veered into a bus stop during a police chase and struck four pedestrians. The incident was near Metropolitan Parkway and University Drive.

According to reports, the Atlanta Police were chasing three juveniles in a stolen vehicle when the car ran into the bus stop. One juvenile was apprehended at the scene while two others escaped.

Four of the people involved were injured, one critically. This is another instance of innocent civilians harmed and/or killed by police chases for non-violent offenses. The victims could have easily been your family members.

In January of this year, the FDA issued a proposed rule which directly contradicts Congress’ expressed intent when it passed the Food and Drug Administration Amendment’s Act of 2007 (FDAAA). Unlike the FDA’s proposed rule, Congress intended the duty to warn customers of a drug’s hazards rests with the drug company, who is in the best position to warn about problems associated with the drug. However, under the FDA rule, drug companies will enjoy more relaxed labeling requirements and will use the rule to claim immunity for failing to warn patients of potential drug hazards. The FDAAA requires a drug company to update its label to include drug hazard warnings as soon as there is reasonable evidence of that risk. This law allows consumers to be aware of a drug’s potential risks at the earliest possible moment and prevents injuries and deaths such as those associated with Avandia and Vioxx. However, under the new FDA rule, drug companies will only have to revise their warning label where they establish “sufficient evidence of a causal association” which could take years. This is a significantly higher standard that drug companies would have to meet before informing consumers of a potential hazard. It is imperative that Congress hold oversight hearings to curb this agency’s abuse of power because the FDA has ignored expressed Congressional intent and this proposed rule will not serve to make drugs safer. Instead the proposed rule will make it more difficult for consumers injured by prescription drugs to hold negligent drug companies accountable.

Two studies have concluded that heart surgery patients are more likely to die if given the anti-bleeding drug Trasylol. The drug has been widely used for the last 14 years to treat hundreds of thousands of heart bypass patients each year. Drug manufacturer Bayer AG ceased sales of the last fall, after a Canadian study was halted because of deaths among patients taking Trasylol.

The new studies are being published this week in the New England Journal of Medicine. Bayer funded one of the two new studies, and had the preliminary results before a September 2006 federal hearing on the drug's safety. It did not present the results at the hearing.

The company issued a statement this week saying both the new studies are flawed.

"I just don't know how much further evidence you need," said Dr. Sidney Wolfe of Public Citizen's Health Research Group. Federal health officials should pursue criminal charges against Bayer for withholding information from its own study from the FDA panel in 2006, Wolfe said.

Trasylol was used in heart bypass surgeries to control bleeding. The FDA approved it in 1993 after studies showed its clotting powers clearly reduced the need for blood transfusions, and it became a top choice for surgeons.

Bayer officials still say they believe Trasylol's benefits outweigh its risks when used properly. The company said it's waiting for the final results of the Canadian study before deciding whether to permanently suspend the drug's sales.

Two studies have concluded that heart surgery patients are more likely to die if given the anti-bleeding drug Trasylol. The drug has been widely used for the last 14 years to treat hundreds of thousands of heart bypass patients each year. Drug manufacturer Bayer AG ceased sales of the last fall, after a Canadian study was halted because of deaths among patients taking Trasylol.

The new studies are being published this week in the New England Journal of Medicine. Bayer funded one of the two new studies, and had the preliminary results before a September 2006 federal hearing on the drug's safety. It did not present the results at the hearing.

The company issued a statement this week saying both the new studies are flawed.

"I just don't know how much further evidence you need," said Dr. Sidney Wolfe of Public Citizen's Health Research Group. Federal health officials should pursue criminal charges against Bayer for withholding information from its own study from the FDA panel in 2006, Wolfe said.

Trasylol was used in heart bypass surgeries to control bleeding. The FDA approved it in 1993 after studies showed its clotting powers clearly reduced the need for blood transfusions, and it became a top choice for surgeons.

Bayer officials still say they believe Trasylol's benefits outweigh its risks when used properly. The company said it's waiting for the final results of the Canadian study before deciding whether to permanently suspend the drug's sales.

This Wednesday the Supreme Court issued a major anti-consumer opinion, making it harder for consumers to sue manufacturers of federally approved medical devices.
In an 8-1 decision, the court ruled against the estate of a patient who suffered serious injuries when a catheter burst during a medical procedure. The case has significant implications for the $75 billion-a-year health care technology industry, whose products range from heart valves to toothbrushes.

At issue before the Supreme Court was whether the estate of Charles Riegel could sue a company under state law over a device previously cleared for sale by federal regulators. Under federal law, a company must substantiate the safety and effectiveness of a medical device before the U.S. Food and Drug Administration will approve it for the marketplace.

Charles Riegel's family alleged that the catheter produced by Medtronic Inc. of Fridley, Minn., outside Minneapolis had a design defect and an inadequate warning label. Riegel survived the procedure to unclog an artery, though he had permanent disabilities. He died in 2004.

State lawsuits are barred to the extent they would impose requirements that are different from federal requirements, said the ruling by Justice Antonin Scalia. In dissent, Justice Ruth Bader Ginsburg said that Congress never intended "a radical curtailment of state common-law lawsuits seeking compensation for injuries caused by defectively designed or labeled medical devices."

Not surprisingly, the Bush administration sided with industry, saying unfavorable state jury verdicts would compel companies to alter product designs or labels that had already gotten FDA approval.

Our police chase injury lawyers have handled many cases involving the deaths of innocent civilians due to police chasing suspects for minor crimes. We have previously written about police departments that have adopted restrictive policies limiting chases and decreasing the chances that innocent civilians and police officers can be seriously injured or killed.

On May 30, 2007, in Forestville, Maryland, a police officer was chasing a motorcyclist for speeding. During the chase, the police officer tried to position his car to stop the speeding motorcyclist, but instead hit a civilian car that rolled down an embankment into oncoming traffic. This caused a seven car pile up injuring 15 and killing two innocent civilians. Among the injured were two police officers. The police car camera revealed that the officer was driving at times more than 120 m.p.h. as he drove onto the shoulder and back onto the highway.

Today, the police officer, Scott Campbell, was indicted by a Grand Jury on two counts of vehicular manslaughter for the May 30th crash. The indictment charges that Campbell, started the chase in violation of department policy. The police department policy permits officers to engage in high speed pursuits only if there is probable cause that the suspect used or threatened physical force or is involved in a hit and run accident resulting in serious injury or death.

The department policy states that an officer’s primary concern should be preservation of life, not capturing a suspect.

The indictment of an officer in connection with a police chase is extremely rare.

Last year, the Food and Drug Administration (FDA) issued a proposed rule which directly contradicts Congress’ expressed intent when it passed the Food and Drug Administration Amendments Act of 2007 (FDAAA), an Act which encompasses the Prescription Drug and User Fee Act. As a result, drug companies will enjoy more relaxed labeling requirements and will surely use the rule to claim immunity for failing to warn patients of potential drug hazards. When Congress passed the FDAAA it included language confirming the responsibility of the drug manufacturer to promptly update its drug label when they become aware of new safety information. Congress was clear that it intended to keep the burden squarely on the drug companies to update warning labels. Nonetheless, the FDA had promulgated this new rule against Congress’ expressed wishes. Congress explicitedly stated that it did not intend to ease the requirements on drug companies to inform consumers of potential drug hazards. It reiterated the need for drug companies to change its label if the drug company learns of reasonable evidence of that risk. In fact, the drug companies fought and lobbied hard to include language to loosen warning label obligations that the Congress specifically left out of the final Bill. But since the drug companies could not get Congress to agree to lessen their responsibilities towards consumers, they turned to the Bush Administration. Unfortunately, the FDA’s tactics are not new to Bush Administration bureaucrats. Unelected federal agencies have been ignoring congressional directives in a number of other cases. The Environmental Protection Agency (EPA), National Highway Traffic Safety Administration (NHTSA), Consumer Product Safety Commission (CPSC), and others are also engaging in this tactic of bureaucratic activism.

We have previously written about controversial drug advertising that takes place in the United States. Once again, this practice has come to the forefront through Dr. Robert Jarvik, who is best known as the developer of an artificial heart. About two years ago, Dr. Jarvik began appearing in television ads for the drug Lipitor, manufactured by Pfizer.

In the ads, Dr. Jarvik is depicted in various athletic pursuits, such as rowing and running, and tells viewers that Lipitor significantly lowers cholesterol when diet and exercise are not sufficient.

Now, a Congressional Committee has become concerned and is taking preliminary steps to investigate drug advertising, particularly the Lipitor ads. Some critics point out that even though Dr. Jarvik is an M.D., he is not a cardiologist and is not licensed to practice medicine. In fact, people who know Dr. Jarvik have reported that he does not even row. Apparently, a stunt double was hired to portray him in rowing scenes shown in the advertisements.

According to the House Committee on Energy and Commerce, it is looking into whether the advertisements give the public a false impression. Lipitor is the world’s single best selling drug. It is estimated it generates sales of over $12.7 billion a year. Recently, however, it has come under competition from cheaper generic drugs. Pfizer has used the Jarvik advertisements to help protect its’ market share. Between January 2006 and September 2007, it is reported that Pfizer spent $258 million advertising Lipitor.

The U.S. consumer advocacy group, Public Citizen, has called upon authorities to require that Botox and a similar injections come with strong warnings following reports of 16 deaths and other serious problems after the botulinum toxin spread inside the body. Public Citizen asked U.S. authorities to require the strongest possible warning, highlighted in a "black box," on Allergan Inc's Botox and Solstice Neuroscience Inc's Myobloc.

Botox is used widely to decrease facial wrinkles but also has approved medical uses such as treating cervical dystonia, or rigid neck muscles. Myobloc is cleared only for the neck condition. Both are made with forms of the botulinum toxin, which can paralyze muscles.

Public Citizen reviewed 180 reports submitted to the Food and Drug Administration by manufacturers involving patients injected with Botox or Myobloc. The reports detailed cases of muscle weakness, difficulty swallowing or aspiration pneumonia, a serious condition caused by breathing a foreign material into the lungs.

Sixteen of the cases reported were fatal, including four involving children under 18, Public Citizen said. Some patients were hospitalized.

Dr. Sidney Wolfe, director of Public Citizen's Health Research Group, said such problems can occur if toxin spreads from the injection site to the esophagus, causing partial paralysis. Instructions for Botox and Myobloc mention the issue but it is easy to miss, he said. He called for the increased warnings to physicians and consumers.

Our Georgia injury lawyers are accustomed to seeing cases involving horrible injury and cases of death caused by all types of accidents but burn cases are at the top of the list. We were discussing the news accounts today in Savannah reporting that firefighters found three, and perhaps as many as six, bodies in the wreckage of a still-burning sugar refinery leveled by an explosion overnight. In addition to the death cases, dozens of employees have been injured, many critically burned. Officials suspect sugar dust, which can be volatile, as the cause of the explosion. Reportedly the explosion happened in a storage silo where refined sugar is stored until it is packaged.

Obviously all of the injured employees will immediately be entitled to workers compensation benefits, including payment of all medical bills but given the very limited disability benefits available under the workers compensation laws of Georgia, this is very little consolation to the injured. Having litigated products liability cases involving injury and death, we wonder whether there are some third parties who may be liable for this explosion. Surely, this huge sugar refinery was aware of the potential danger posed by sugar dust. Was there a system in place which failed? Was ventilation machinery defective or not properly maintained by third party entities hired by the refinery? All of these questions and more need to be explored in order to adequately protect the interests of injured workers and the families of those who died in this tragedy.

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 9:

8. If I am injured by a third party, but I am also working on the job at the time, am I entitled to both workers’ compensation coverage and a liability settlement?

Answer: The answer is yes although there may be a claim for subrogation made by the workers’ compensation insurance carrier. If an employee is injured while working for an employer and their injury comes about as a result of the acts of a third party, the injured individual may obtain both workers’ compensation benefits and liability insurance coverage to the extent the at fault defendant has such coverage. If a settlement is eventually obtained from the liability insurance carrier for the at fault defendant, the issue arises as to whether a portion of the settlement has to be repaid to the workers’ compensation insurance carrier for the employer. The general law in Georgia is that there is no right of subrogation unless the injured individual is first “made whole” for all of his/her damages which includes complete compensation for pain and suffering, past, present and future, complete compensation for medical expenses past, present and future, and complete compensation for lost wages, past, present and future. Unless an injured employee is “made whole” for all such damages, even if they have received workers’ compensation benefits and a liability settlement arising out of a hypothetical automobile accident, the injured individual will not be required to repay his or her employer’s insurance carrier for workers’ compensation benefits received. In the context of a case where an injured individual is not made whole, there is no right of subrogation. Accordingly, in many cases, the employee injured on the job with a valid claim against a third party may receive both workers’ compensation benefits and liability protection from the third party.

It is well established that failure to comply with an ante-litem notification provision within the time required by law is a bar to any right of action. See Mattox v. Bailey, 221 Ga. App. 546, 472 S.E. 2d 130 (1996). However, an ante-litem time requirement has been held to be, in itself, a form of statute of limitations, with all general principles applicable to statutes of limitation also applying to ante-litem time restrictions, including tolling provisions. See Howard v. State, 226 Ga. App. 543, 487 S.E. 2d 112 (1997); City of Atlanta v. Barrett, 102 Ga. App. 469, 471, 116 S.E. 2d 654 (1960). This being the case, if a victim/client is late in filing an ante-litem notice with a municipality, county or with the State under the State Tort Claims Act, it would appear that the statute under consideration would also provide relief to such a victim/client based on the language cited tolling the statute of limitations.
Our firm was recently retained by a gentleman whose wife was killed during a police chase. The wife was an innocent third-party caught up in the chase. This particular client had hired a previous attorney who did not file an ante-litem notice with the County involved within twelve (12) months. However, the fleeing suspect was prosecuted by law enforcement authorities and the prosecution ended only a month ago. Obviously, our position will be that the statute of limitations for the entire cause of action was tolled and thus the ante-litem notice we will be filing on his behalf is still timely. Again, this is another area of the law which will have to be explored.
When the Victims Restitution Act of 2005 was enacted, the Legislature stated in its preamble that the purpose of the Act was among other salutary goals “to substantially revise the laws of this state relating to the conduct of criminal trial and the impact of the criminal justice system on victims of crime; to amend Article V of Chapter 3 of Title IX of the Official Code of Georgia Annotated, relating to tolling of limitations in civil cases, so as to provide for a statute of repose in certain tort actions brought by victims of crimes against the persons accused of such crimes, to amend Title XVII of the Official Code of Georgia Annotated, relating to criminal procedure . . .” Given that a specific purpose of the new Act was to toll the limitations in civil cases so as to provide for a statute of repose in tort actions brought by victims of crimes, counsel in the future should always be cognizant of the existence of this relatively unused, untested and very interesting law. Because the language of the statute is so broad, particularly in view of its remedial purposes, we believe it can and will benefit tort claimants in the future where defendants have been charged with crimes arising out their tortious acts.

Lawyers who practice in the field of dangerous medical devices and drugs are never surprised to discover relationships between physicians and pharmaceutical and medical device companies. Recently, questionable ties between supposedly objective researchers and the maker of an artificial spinal disk have come to light. An artificial spinal disk is a device that is used in place of conventional surgery during which patients’ vertebrae are fused.

In a study of nearly 240 patients with lower back pain, physicians reported that the artificial spine disk, manufactured by Prodisc, had worked much better than conventional fusion surgeries. A well-known spine specialist and one of the study’s researchers said in a 2006 news release that “as a surgeon, it is gratifying to see patients recover function more quickly than after fusion and return to their normal activities more easily.”

Discovery in a lawsuit against the manufacturer has disclosed that the surgeon had a large financial interest in the outcome of the study. So did other doctors at about half of the 17 research centers involved in the study. Federal law requires that manufacturers inform the Food and Drug Administration of researchers’ financial interest in a product or drug before the study is used to seek approval of a device. It is unclear whether the disk’s manufacturer made this information available to the FDA.

In the study results submitted to the FDA , an unusually large number of patients were not included. Some of those patients had very poor results. As a result, some doctors are very critical of the research stating that the study may have overstated the value of Prodisc. They point out that clinical researchers with financial conflicts have incentives to overstate the value of a new product.

Dr. Richard A. Deyo, a Professor at Oregon Health and Science University, summed up the matter in this way, “The surgeons themselves are guilty of being insufficiently critical of products and techniques they are developing. More people are more interested in getting on the gravy train than on stopping the gravy train.”

As Georgia personal injury lawyers know, the typical statute of limitations for a bodily injury case in Georgia is two years from the date of the occurence at issue. However, in cases involving victims of criminal acts who have potential civil causes of actions against those who brought about injury to them, there are some nuances of Georgia law that all attorneys in this field should know.
The purpose of this entry is to acquaint the Plaintiff’s bar with a very important but little known statute. The statute at issue, O.C.G.A. § 9-3-99, was passed as part of the “Crime Victims Restitution Act of 2005.” It became effective July 1, 2005 and reads as follows:
The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six (6) years.
Given that virtually every automobile accident involves misdemeanor criminal charges against a negligent driver (who presumably violated the Georgia Uniform Rules of the Road and was charged via a citation), it is submitted that in virtually every automobile accident tort case, this statute could potentially extend the statute of limitations from 2 years to 6 years. The same is true for any tort case (particularly intentional torts) resulting in criminal charges against a defendant. While the new statute has yet to be interpreted by any Georgia court, there are many interesting legal issues that may emerge in the future with respect to it.
Our firm first became aware of this statute in the context of two wrongful death actions we were prosecuting on behalf of separate families in Canada. These two deaths had occurred in a very bad tractor-trailer accident. While preparing those cases for trial, we contacted another person who had been injured in the same accident. This particular person lived in the state of Florida. When we first contacted the individual about providing a deposition for our cases, two years had already passed since the accident occurred. The witness, nonetheless, asked if our firm could assist him in bringing claims against the trucking company responsible for the collision. Because of the passage of time and also because we had a conflict of interest representing a witness we needed to depose for our other clients, we declined. However, when we later settled the two wrongful death cases and advised the witness his deposition was no longer needed, he again asked if we could be of service to him. Even though the otherwise applicable two-year statute of limitations had arguably run, because the tractor-trailer driver had been charged with vehicular homicide in connection with the deaths in our other two cases and because our conflict no longer existed, we agreed to file claims on the new client’s behalf and to assert in his case that the statute of limitations had been tolled since he was a “victim” of a crime which had been committed in this state.

Continue reading " TOLLING THE STATUTE OF LIMITATIONS IN TORT CASES FOR VICTIMS OF CRIME " »

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 8:

9. If I have no health insurance and the at fault driver has little or no liability insurance coverage, what happens if my medical bills exceed available coverages?

Answer: This is a sad case that we see far too often in our practice. The hypothetical at fault driver has run the stop sign or red light and has caused serious injuries. The at fault driver has minimum limits of $25,000.00 which are insufficient to pay the medical expenses incurred. The injured individual has no health insurance. Thus, medical expenses exceed all forms of available coverage. What happens? Typically, lots of problems. If the medical expenses exceed available coverage then counsel will attempt to negotiate some type of settlement with the hospital and healthcare providers because there is simply not enough money to go around and what is available needs to be divided on an equitable basis. Sometimes this works and sometimes it does not. If there is a Hospital Lien, for example, the Hospital Lien takes priority by operation of law and all of the settlement funds might have to be paid to the hospital leaving the injured individual with nothing. Again, these are sad and complicated cases requiring careful review by experienced counsel. This, of course, is why it is so important that the public protect itself through Medical Payments coverage, health insurance coverage, disability coverage and/or any other forms of coverage such as uninsured motorist coverage if such coverage can be purchased and is affordable. If such coverage is not affordable and the injured individual has nothing then literally they are at the mercy of the resources of the at fault defendant which in many cases are themselves grossly insufficient to pay for medical expenses, much less pain and suffering and lost wages.

It is quite possible in these sad and tragic cases that the injured individual ends up declaring bankruptcy if the medical expenses are huge. In a serious injury case, medical expenses can literally be in the hundreds of thousands of dollars. It is easy to see that if the at fault driver only has $25,000.00 and medical expenses are in excess of $200,000.00 that there is simply not enough money to go around. If the injured client has no heath insurance and the at fault driver only as $25,000.00, in the hypothetical case cited, there would be unpaid medical bills in the amount of $175,000.00. Bankruptcy might be the best alternative in such a case if something cannot be worked out by and between the healthcare provider and counsel for the client. This is the reality of any case where the client has no protection for himself and the at fault driver has little or no coverage either. Again, the best way to protect against such a catastrophe is to purchase healthcare coverage and uninsured motorist coverage if at all possible.