Georgia Injury Lawyer Blog

The Association of American Medical Colleges has proposed that drug and medical device companies should be banned from offering free food, gifts, travel and ghost-writing services to doctors, staff members and students in nation’s medical colleges. The Association has begun to write a model policy governing relationships between the schools and industry. While medical schools can ignore the association’s advice, most follow its recommendations.

The rules would apply only to medical schools, but they could have enormous influence across medicine, according to medical educators.
Drug companies spend billions of dollars each year trying to influence doctors. Medical schools, with prominent professors and new trainees are attractive marketing targets.

For decades companies have provided faculty and students free food and gifts, offered lucrative consulting arrangements to teachers and even ghost-wrote research papers for busy professors.

A group of doctors criticized these practices in a 2006 article in The Journal of the American Medical Association, and said that medical schools should ban them.

The proposed rules would require that schools set up centralized systems for accepting free drug samples and suggest that schools audit independently accredited medical education seminars given by faculty. The rules would apply to faculty even when off-duty or away from school.

Speakers’ fees and drug samples are a major part of the drug and device industry’s marketing operations, and many medical school professors have resisted efforts to restrict them.

These efforts to remove the influence of industry marketing from medical decision making shoiuld be applauded.

Medical Malpractice takes many forms. In this article, we write about a unusual but dangerous medical error that can cause lifetime consequences for an innocent patient.

Though most everyone knows that sharing needles is unsafe in today’s world, sharing or reusing syringes can be equally dangerous. During any health related injection, a tiny amount of blood is often inadvertently drawn back into a syringe. Most of the time, that does not make a difference because it is common practice to use a new syringe and a new needle for subsequent injections. But in some cases, those involved may change the needle but not the syringe. They then use that syringe to draw more medicine from a vial. By doing so, the small amount of blood that may have been in the dirty syringe inadvertently flows back into the vial contaminating the entire vial.

We read recently in an article in USA Today about a lady by the name of Evelyn McKnight who has founded a patient advocacy group entitled HONOReform. Ms. McKnight apparently was infected with Hepatitis C which has caused her to be chronically fatigued and has compromised the quality of her life significantly. Apparently, she was infected with this disease when someone reused a syringe even though a clean needle was used during a chemotherapy treatment for her cancer. Quite literally, she went to a doctor to be healed but then came away with a life threatening illness. To keep that from happening elsewhere, she has founded the patient advocacy group HONOReform, that uses education and advocacy to try to stop the kind of medical errors by which blood borne diseases can be transmitted. Unfortunately for Ms. McKnight and others who have been given Hepatitis C from unclean syringes, there is no universal cure for the disease. 20% immediately develop acute infections and symptoms ranging from jaundice to fatigue, however, 75 to 85 percent may develop a chronic infection but may not exhibit symptoms for many years. Some may die of liver disease.

Because dangerous medical errors such as the reuse of a syringe can pass on blood borne infections, the work of patient advocacy groups like HONOReform obviously is important in educating the public and the medical community about this form of medical malpractice. In today’s world, it is inexcusable to reuse syringes because deadly diseases can be passed on to the innocent. One would think that this lesson would have been learned with respect to syringes but apparently there are still those who believe that only needles need to be replaced. This type of medical error can have lifelong and profound consequences as is reflected in Ms. McKnight’s case. We applaud the work of HONOReform in addressing it.

Our personal injury practice reflects pretty much what we see in national statistics concerning the rising rate of motorcycle injuries and accidents. We are seeing more and more clients seriously injured in motorcycle accidents. In large part, this is primarily due to increased numbers of motorcycle riders. Motorcycle registrations have more than doubled since 1997. In 2006, almost 6.5 million motorcycles were registered in this country. The good news is that the number of deaths and injuries resulting from these 6.5 million motorcycles is no greater than the number of deaths when 5 million registrations existed in 1986. The bad news is that even though motorcycles make up 2% of the vehicles on the road, they also make up close to 10% of vehicular accidents.

If you ride a motorcycle in this country, you are 37 times more likely to die in a crash than someone in a passenger car. Even though the number of motorcycle registrations have gone up dramatically, which would explain why motorcycle deaths have more than doubled in the past 10 years, motorcycle accidents kill more Americans each year than all those caused by much higher profile plane crashes, ship disasters, and railway accidents combined.

With increasing gas prices, we are likely to see a continuing rise in motorcycle usage. While many states require that motorcyclists wear helmets, in some cases, a helmet would make no difference. Nonetheless, the National Highway Traffic Safety Administration estimated that between 1984 and 2000, 19,000 motorcyclists were saved by their helmets. These statistics are, of course, hard to quantify on a case by case basis but given the lack of protection that a motorcyclist has when involved in an accident, it seems a safe bet that helmets do matter. What matters even more, however, is motorcycle safety and rider education. Widespread motorist awareness campaigns educate the general motoring public to be aware of motorcycles. Increasing public awareness campaigns will be needed as more and more people register motorcycles in view of rising gas costs. Regrettably, our personal injury lawyers will probably continue to see a rise in the number of those that walk through our firm’s doors who have been seriously injured and/or who have had family members die as a result of their motorcycle usage. In short, the more people that ride, the more accidents that will occur and the more tragedies that will be suffered. As always, the operative watch words for motorcycle riders remains the same: Safety, Safety and Safety.

Portable defibrillators are becoming common equipment at youth athletic event. We have written in the past explaining how theses devices, also known as AEDs, help restart the heart in the event of an accident.

A recent news report relates that last month in Jacksonville, Fla. A high school lacrosse goalie was hit in the chest by a lacrosse ball causing his heart to stop beating. And, it happened again just last week at another lacrosse game in Raleigh, N.C.

Researchers say that over the last 10 years, on average, one young athlete a month has been dying because of blows to the chest which affect the heart..

In both the Jacksonville and Raleigh episodes, the use of an AED saved the lives of the young athletes.

Lasik vision correction surgery has been performed in the United States for almost ten years. It has become a massive business with specialized centers opening in most markets and advertising freedom from glasses. However, not everyone's a good candidate and some suffer life-changing side effects — lost vision, dry eye, night-vision problems.

Today, the Food and Drug Administration is beginning a major new effort to see if warnings about the risks are strong enough. The FDA estimates that approximately 5 percent of patients are dissatisfied, but be more specific due to the lack of data. The FDA is now working with eye surgeons in a major study expected to enroll hundreds of Lasik patients to try to better understand who has bad outcomes and exactly what their complaints are.

About 7.6 million Americans have undergone some form of laser vision correction, including the Lasik procedure. In performing the Lasik procedure, doctors cut a flap in the cornea — the clear covering of the eye— aim a laser underneath it and zap to reshape the cornea for sharper sight.

The vast majority, 95 percent, of patients see more clearly after Lasik. However, some patients have severe complications that leave poor vision. Other side effects, such as dry eye can range from an annoyance to so severe that people suffer intense pain and need surgery to retain what little moisture their eyes form.

Dry eye is common even among people who never have eye surgery, and increases as people age. Solomon says 31 percent of Lasik patients have some degree of it before the surgery, and that about 5 percent worsen afterwards.

The FDA has long known of those side effects, and thus for years has a Web site with warnings for Lasik patients and required that doctors give every potential patient a brochure outlining risks..

Wal-Mart announced this week that it will soon stop selling baby bottles made with the chemical bisphenol A (BPA). The retailer said that it was immediately stopping sales of baby bottles, sippy cups, pacifiers, food containers and water bottles made with BPA in its Canadian stores. There has been speculation that Canada’s health department would soon declare the chemical unsafe.

On Monday the U.S. National Toxicology Program released a draft report that expressed concern that BPA, which is used to make plastic, could cause behavioral changes in infants and children and trigger the early onset of puberty in females.

Wal-Mart has sold BPA-free baby bottles for several years alongside bottles with the chemical. But yesterday was the first time the retailer indicated it would convert its entire U.S. stock.

Other retailers are also stocking products made without the chemical. A spokeswoman for Target said the chain began testing glass baby bottles in its stores in January. Babies R Us said its sales of glass bottles have increased fivefold since last spring.

An article in the New England Journal of Medicine, warns that the entry of big companies like Microsoft and Google into the field of personal health records could drastically alter the practice of clinical research and raise new challenges to the privacy of patient records.

The authors are proponents of the benefits of electronic patient records to improve care and help individuals make smarter health decisions. But their concern is that the medical profession and policymakers have not begun to understand the implications of companies like Microsoft and Google becoming the hosts for patient information in their data centers.

Today, most patient records remain within the health system. The Health Insurance Portability and Accountability Act, or HIPAA, is the main law that regulates personal data handling and patient privacy.

Microsoft and Google have recently begun offering web-based personal health records. But as noted in the article, these companies are not bound HIPPA.

Our firm concluded a wrongful death case this year on behalf of the family of a 40-year old man who was killed when a bicycle he was riding became entangled in loose utility wires which completely obstructed a city sidewalk adjacent to Peachtree Road in Atlanta. The injuries this young man received in the accident cost him his life. Subsequent thereto, our firm filed a lawsuit against the City of Atlanta for negligent maintenance of the City’s sidewalk and against two utility companies for their alleged involvement in failing to properly maintain the hazardous utility wires which obstructed the city sidewalk at the time of the incident. While the case was resolved by means of compromise, obviously, the pain from the incident still remains with the family because of the untimely and wrongful death of this young man. Notwithstanding this terrible tragedy to the family, however, as we have seen in other similar tragic cases, good can emerge from bad particularly where good people work together to accomplish common goals.

In late March of this year, a pedestrian advocacy group in Atlanta by the name of PEDS (Pedestrians Educating Driver Safety) conducted a Scavenger Utility Wire Hunt in which volunteers were asked to spread out throughout Atlanta to look for detached wires or cables that might block or obstruct city sidewalks. Thirty-five volunteers participated in this event and pictures were taken of more than 225 sites where loose or detached wires or cables blocked sidewalks. Once these pictures were in hand, PEDS digitally sent them to the City’s Department of Public Works and has asked for a meeting not only with them but also with representatives from the various utility companies that conduct business in Atlanta.

As one of the victim’s brothers stated to the press, “It’s all about accountability. If we can get the utilities and the City to take a more proactive approach to finding and fixing these dangerous sites, [my brother] will not have died in vain.” One person’s unnecessary and preventable death is one too many. Hopefully, this joint effort by volunteers pursuing a common goal can bring about good and other potential victims spared the fate suffered by our client’s family.

The Louisiana Supreme Court has ruled that a flood exclusion in an "all-risk" policy barred a claim by the owner of an apartment building damaged by flood waters during Hurricane Katrina.

The owner lived in the five-unit building when four feet of water entered the basement during the hurricane. He had a commercial "all-risk" policy and submitted a claim for the damage. An insurer's inspector claimed most of the damage was due to poor maintenance and flooding.

The insurer paid only $230 on the claim because the policy excluded coverage for damage caused by various forms of water, including "flood." But the policy did not specifically define the word "flood."

The owner sued claiming the policy's failure to distinguish between naturally-caused flooding and flooding resulting from the failure of man-made structures like those protecting New Orleans rendered the exclusion too ambiguous to enforce.

But the court rejected that argument.

This Tuesday federal regulators from the FDA urged makers of many kinds of medical devices that contain heparin to test their supplies. These concerns arise from previously discovered supplies of Chinese made heparin contaminated with a look-alike ingredient that mimicked heparin in standard tests of drug potency and purity.

The FDA announced last month that it had identified the contaminant as a modified form of a common nutritional supplement. That substance is cheaper to produce than heparin, leading to suspicions that it may have been intentionally added somewhere along a complex and lightly regulated supply chain in China.

China is the world's leading supplier of heparin, a blood thinner often made from a substance in the intestines of pigs. It is commonly given to prevent blood clots in heart surgery and dialysis patients

The products to be tested cover a spectrum of equipment and uses. They include kits that flush out intravenous lines, drug-coated stents for opening clogged arteries and certain diagnostic tests that use heparin and could deliver inaccurate results if contaminated.

Separately, the FDA released statistics on deaths linked to intravenous heparin, the form of the drug in which problems were first detected. The numbers showed an increase in fatalities from November 2007 through February 2008, with problems rapidly abating last month after Baxter Healthcare Corp. issued a recall.

A new study reports that from 1991 to 2005, nearly 40,000 people older than 65 were injured while riding escalators, an average of 2,660 a year. The report, published in the March issue of the journal Accident Analysis and Prevention, is based on an analysis of data collected by the Consumer Product Safety Commission.

The rate of injury more than doubled in that period — to 11 per 100,000 population in 2005, the latest year for which figures are available, from 4.9 in 1991. There were no fatalities, but more than 2,500 people were hospitalized, mostly for broken bones.

The researchers could not explain why the rate is rising. but noted there are more active older adults.

Slips and falls caused 85 percent of the injuries, and the rate of injury for women was almost twice as high as for men. Women are more likely than men to injure themselves in a fall, whether on escalators or not, according to the Centers for Disease Control and Prevention.
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An analysis of 41 million Medicare patient records, released April 8 by HealthGrades, a health care ratings organization, found that patients treated at top-performing hospitals were, on average, 43 percent less likely to experience one or more medical errors than patients at the poorest-performing hospitals.

From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study.

The overall medical error rate was about 3 percent for all Medicare patients, which works out to about 1.1 million patient safety incidents during the three years included in the analysis.

Among the other findings:

Patients who experienced a patient safety incident had a 20 percent chance of dying as a result of the incident.

The overall death rate among patients who experienced one or more patient safety incidents fell by almost 5 percent between 2004 and 2006.

Over that time, there were increases in post-operative respiratory failure, post-operative pulmonary embolism or deep vein thrombosis, post-operative sepsis (blood infection), and post-operative abdominal wound separation/splitting.

The most common types of medical errors were bed sores, failure to rescue, and post-operative respiratory failure. Together, they accounted for 63.4 percent of incidents. Failure to rescue improved 11.1 percent from 2004 to 2006, while both bed sores and post-operative respiratory failure worsened during that time.

Of the 270,491 deaths that occurred among patients who experienced one or more patient safety incidents, 238,337 were potentially preventable, the researchers said.

If all hospitals performed at the level of the top-ranked hospitals, about 220,106 patient safety incidents and 37,214 patient deaths could have been avoided, and about $2 billion could have been saved.

Starting Oct. 1, the federal Centers for Medicare and Medicaid Services will stop reimbursing hospitals for the treatment of eight major preventable errors, including objects left in the body after surgery and certain kinds of post-surgical infections.

Our Atlanta based medical malpractice lawyers frequently handle cases involving medication errors in hospitals. Some of these cases result in catastrophic damages.

A research study published in the April issue of the journal Pediatrics determined that medicine mix-ups, accidental overdoses and bad drug reactions harm roughly one out of 15 hospitalized children. The number is far higher than earlier estimates and bolsters concerns already heightened by well publicized cases such as the accidental drug overdose of actor Dennis Quaid's newborn twins last November. Quaid's twins got life-threatening heparin overdoses in a Los Angeles hospital.

Researchers found a rate of 11 drug-related harmful events for every 100 hospitalized children. That compares with an earlier estimate of two per 100 hospitalized children, based on traditional detection methods. The rate reflects the fact that some children experienced more than one drug treatment mistake. The new estimate translates to 7.3 percent of hospitalized children, or about 540,000 kids each year, a calculation based on government data.

Simply relying on hospital staffers to report such problems had found less than 4 percent of the problems detected in the new study.
A new monitoring method developed for the study is a list of 15 "triggers" on young patients' charts that suggest possible drug-related harm. It includes use of specific antidotes for drug overdoses, suspicious side effects and certain lab tests.

The researchers said their findings highlight the need for "aggressive, evidence-based prevention strategies to decrease the substantial risk for medication-related harm to our pediatric inpatient population."
Patient safety experts said the problem is most likely even bigger than the study suggests because it involved only a review of selected charts. Also, the study didn't include general community hospitals, where most U.S. children requiring hospitalization are treated.

On Friday, April 4, 2008, the District Court of Appeals, First District, State of Florida upheld the Florida Office of Insurance Regulation’s suspension of Allstate from writing insurance in the State of Florida.

Allstate had been suspended weeks before for refusing to produce documents during an investigation of the company. The Florida market comprises 17% of Allstate’s national sales.

The court found Allstate guilty of arbitrary reductions of “bodily injury claim payments to its policyholders and beneficiaries by up to 20%.” It also determined that Allstate was engaged in ongoing criminal activity by failing to cooperate with the Office of Insurance Regulation’s investigation of a crime, and that this constituted a danger to the public health, safety or welfare of citizens.

Realizing the seriousness of this, given a pending shareholder lawsuit against the company for other problems resulting from the company’s refusal to turn over the documents in several cases nationally, Allstate posted 150,000 documents on their web site.

Our Atlanta personal injury attorneys are constantly monitoring emerging rends in the legal field. Recently, a controversial test that is supposed to detect "malingering" is gaining popularity among defense experts in personal injury, workers' compensation and other cases.

The "Fake Bad Scale" is being offered by medical experts as evidence that plaintiffs are fabricating or exaggerating their pain or other medical symptoms.

A few courts have ruled on the admissibility of the test, including three Florida courts that excluded testimony about it last year. In one of those cases, a trial judge in Hillsborough Country, Fla. ruled that the test was "not an objective measurement of effort, malingering or over-reporting of symptoms" because there was no manual for administering or scoring the test.

The test is still relatively unknown among the plaintiffs' lawyers, but attorneys who are following the issue say the test is often used in workers' comp cases. More recently, it has appeared in suits brought under the Defense Base Act involving contractors who claim post-traumatic stress after returning from Iraq or other military assignments.

The fake bad scale was created in 1991 by Dr. Paul Lees-Haley, a neuropsychologist in Woodland Hills, Calif. who testifies as an expert witness for the defense. It is a series of 43 true or false questions such as "I have very few headaches," "I have nightmares every few nights" and "My sex life is satisfactory."

A leading critic of the test, Dr. James Butcher, PhD, a senior author of the MMPI-2 and a professor at University of Minnesota, said that the fake bad scale does not meet the standards set by other MMPI-2 scales and "greatly overestimates" malingering. In one study, Butcher tested over 2,000 women in a care center for eating disorders and found that 44 percent would have been misclassified as malingerers using the test.
He also criticized the test for not taking into account gender-based norms, noting that, for example, women in the general population report more headaches than men, as well as hot flashes, another question on the fake bad test.

Plaintiffs' attorneys are just beginning to attack the test in court.

If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can't sue the maker for injury if it met agency standards. The Consumer Product Safety Commission (CPSC) says you can't sue a mattress maker if your mattress bursts into flame despite meeting CPSC standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration (NHTSA) proposals for stronger roofs.

Consumer advocates call this "silent tort reform." It is part of the tension between state and federal law that has existed since the nation's founding. If there is a conflict, state laws must yield under Article 6 of the Constitution. But where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. Big business and insurance companies are now using this to avoid responsibility for negligent actions and omissions at the expense of innocent consumers.

Under the Bush administration, a developing body of judicial opinion could place new limits on the rights of those who buy or use products. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

Federal agencies are increasingly promulgating rules favorable to big business and insurance companies at the expense of ordinary citizens. They then assert their rules override state tort and product-liability laws. In a novel approach, these agencies are claiming that the preemptive effect is based on statements in the introductions to their rules, not the rules themselves.

The practice varies by agency but is spreading. It delights corporate defense lawyers. The argument is that federal agencies are the absolute rule-makers.

Actor Dennis Quaid and his wife are preparing to fight such a contention — this one made by the FDA — in a suit accusing Deerfield, Ill.-based Baxter Healthcare Corp. of putting vastly different doses of a blood-thinner into confusingly similar packages. The Quaids went to court in November 2007, after their infant twins were given 1,000 times more heparin than babies should get. Their suit contends Baxter should have changed the packaging after three babies died in 2006 at an Indianapolis hospital.

A study released yesterday contained bad news for makers and buyers of portable defibrillators, devices that deliver electrical shocks meant to revive victims of sudden heart In the first major study of their use in household settings, researchers found no evidence that the devices produced significant life-saving benefits. The study, of more than 7,000 heart patients, concluded that patients in homes equipped with the gear died at the same rate as those without it.

Defibrillators were originally designed for ambulance crews. However, they have recently been marketed to consumers for use in homes.
Importantly, the study noted that the life-saving potential of the automated external defibrillators was well established in hospitals, emergency vehicles and in public settings like airports and casinos. At public locations there are typically employees close at hand who are trained to use the defibrillators.

The home study, which was sponsored by the government but partly financed by industry, followed the patients an average of three years. The death rates from all causes and from heart problems in the group that was given defibrillator kits — and training in how to use them — were lower than expected but virtually identical to the group that did not receive the equipment. It turned out that just 14 patients treated in the three-year study suffered the specific heart rhythm malfunction that the defibrillator could combat. Of that group, four survived to be released from the hospital.

But the study served mainly to spotlight the health care system’s limited options in dealing with sudden cardiac arrest — a heart malfunction that each year strikes 166,000 Americans outside the hospital.
Unlike a heart attack, which involves a restriction of blood flow to the heart’s muscle and is often not fatal, sudden cardiac arrest results from chaotic, rapid heartbeats and is invariably deadly unless normal heart rhythms are quickly restored. About 75 percent of cases occur in the home. Although many victims have had previous heart problems, others are stricken with no warning. .