Georgia Injury Lawyer Blog

Yesterday, the Associated Press reported that on Thursday of this week the government recalled thousands of baby cribs manufactured by Simplicity and Graco, after warning that babies could suffocate or strangle in them. Apparently the problem with both types of cribs relates to faulty or defective hardware. According to the article, the Consumer Product Safety Commission said the Simplicity crib recall was linked to at least one death and it involved thousands of cribs. The recall involving Simplicity products is for all full-sized cribs with tubular medal mattress or support frames. Allegedly, those frames can bend or detach, causing the mattress to collapse and creating a space where a child can become trapped and suffocate. The Graco branded wood cribs involve a side that moves up and down, which can break or detach, creating a dangerous gap where a child can become trapped and suffocate.

The Georgia injury lawyers at Finch McCranie, LLP have represented the families of numerous consumers whose loved ones have died as a result of defective products. If you or a loved one have been seriously injured as a result of purchasing and using a dangerous product, call us today for a free consultation. We have been handling product liability cases for over 45 years.

Defective medical devices have been a major source of injury and death for years. During previous administrations device makers have been basically unregulated due to lax enforcement by the Food and Drug Administration. This abdication of responsibility may soon end.

Federal regulators say they are moving to tighten their oversight of medical devices. Specifically included are infusion pumps, one of the most commonly used pieces of medical equipment. These pumps intravenously deliver drugs, food and other solutions to patients, and have been the subject of many failures for years.

Last Friday, the FDA issued preliminary guidelines that will require producers of infusion pumps to supply the agency with more test data on them before they can be approved for sale.

The FDA reports that over the last five years it has received reports of 710 patient deaths linked to problems with infusion pumps. FDA officials say they think the number may be significantly higher. Some of the reported deaths involved patients who suffered drug overdoses accidentally, either because a hospital worker entered incorrect dosage data into a pump or because the device’s software malfunctioned.

The FDA estimates that two million infusion pumps are used in hospital and clinical settings and hundreds of thousands more are used by patients in their homes.
The new initiative by the FDA is the result of the Obama administration trying to reestablish the role of the FDA after years of criticism by lawmakers and others that it was a rubber stamp for medical device industry.

A few years ago several top FDA scientists complained that their superiors had ignored both their recommendations and policy guidelines in approving the sale of infusion pumps. Along with reports of 710 deaths, the center also received more than 10,000 complaints annually about infusion pumps from 2005 to 2009.

A senior FDA official announced that new approach that the agency was taking toward infusion pumps might soon be extended to other types of medical devices.
The biggest makers of infusion pumps include Baxter Healthcare of Deerfield, Ill.; Hospira of Lake Forest, Ill.; and CareFusion of San Diego.

Under the infusion pump proposal, which could be completed by the end of the year, producers would be required to provide additional data to support the procedures they used to determine the effectiveness and safety of their devices. In addition, companies would have to conduct limited clinical trials to ensure their pumps were not susceptible to misuse or had design elements that could create errors.

The pump manufacturers say that most problems occur when a nurse or health care worker enters the wrong software data accidentally. FDA officials found that not to be the case. In the FDA review of pump complaints many more deaths and injuries related to the devices were the result of defective product design and engineering.

Under current FDA rules, life-sustaining devices like heart defibrillators must be subjected to clinical trials before they are approved for sale. But the FDA clears the sale of many other critical devices like pumps without clinical testing based on a manufacturer’s claim that a new device is similar to a product already on the market.

The Food and Drug Administration and Medtronic Inc have announced a recall of some of Medtronic’s Lifepak heart monitor and external defibrillators. The recall was caused by concerns that the devices can unexpectedly turn on and off.

The FDA said it considered the recall of Medtronic's Lifepak 15 emergency heart devices a Class I recall, the most serious possible. It said the defect is serious enough to cause harm or death.

Lifepak devices are used in emergency settings by hospitals, the military and others to help the heart beat normally and to monitor patients.

The recall affects Lifepak 15 devices made before Dec. 16, 2009. No patients have been harmed to date.

The defibrillators were manufactured with an internal component that could cause an electrical short that leads to the device turning off/on by itself or a power loss. A loss of power could delay or prevent delivery of defibrillation therapy.

Last night after a long day at work I went home and decided to browse local television shows. In so doing, I came across a program entitled “American Greed.” The topic of the program I was watching was extremely disappointing to me but regrettably a symptom of modern day society. The program dealt with greedy lawyers who were stealing from their clients. I watched the program in amazement because the greed of these lawyers was utterly fantastic and extremely disappointing to me as a plaintiff’s tort lawyer.

The crooked lawyers had worked on a class-action settlement involving the very popular anti-obesity drug Fen-Phen which was introduced into the marketplace in the mid 90's. Unfortunately, this drug, which was taken by millions) caused heart problems. Many people died and had serious heart disease and disorders resulting from the use of the product. Class-actions followed and these three lawyers in Kentucky were able to secure a $200 million settlement for approximately 450 clients they represented in the state of Kentucky. Their contingent fee agreement provided that they would receive one-third (1/3) of the settlement ($60 million) or $20 million each. Rather than accept this huge and enormous fee, which would have lasted them a lifetime, instead they preceded to steal another $50 to 60 million dollars from their clients through false representations and numerous acts of fraud.

Obviously, these lawyers deserved to go to jail and two of the three were sentenced to over 25 years in prison. (Incredibly, one of the lawyers got off on a defense centered around alcoholism). What was disappointing to me as I watched to program was the damage this kind of program does to the Bar in general. Clients deserve better and so do lawyers. Clients deserve to have the utmost trust in their lawyers and lawyers, of course, owe a fiduciary duty to their clients to observe that trust and honor it at all times.

These crooked lawyers, unfortunately, support a popular notion that many lawyers are crooks. Most lawyers I know work extremely hard, are ethical and do the best job they can for their client. Regrettably, it only takes a few bad apples to spoil the proverbial barrel and for the legal profession, these kinds of lawyers do untold damage, particularly to the reputation of lawyers generally.

Our firm has been honorably representing tort victims for over 45 years. We always uphold standards of trust and fiduciary duty. We have never violated this trust and never will. The vast majority of all lawyers adhere to the same standards of professionalism. Regrettably, because of a declining emphasis on professionalism and ethics, a few unethical lawyers use their degrees to prey upon vulnerable people who seek their legal representation. The only good news that came out of the program from my perspective is that the legal system worked in the end because other lawyers at the U.S. Attorney’s Office along with another plaintiff’s lawyer got justice for these victims. The plaintiff’s lawyer sued for malpractice and recovered as much money as possible and other lawyers at the U.S. Attorney’s Office put these crooks in jail. Thus, while the victims still suffered needlessly from the incredible greed, the system at least did find some measure of justice for the victims. As stated, clients deserve better and so do lawyers.

Our Atlanta lawyers constantly receive calls from consumers who have had their health insurance companies refuse to pay for necessary treatment or have had their insurance cancelled after they become sick. A recent report has reveled that WellPoint, the nation's largest health insurer, has aggressively targeted women with breast cancer with the intent of canceling their health insurance policies.

Reuters news service cited federal investigators and regulators as a source of this information. According to the report, WellPoint has used a computer program to automatically trigger fraud investigations after the diagnosis of breast cancer, despite no evidence of wrongdoing.

The practice, called rescission, has been used for years to control costs and boost profits. In effect, the companies will accept premiums until the insured is projected to have costly medical bills, then search for a way to deny coverage. Congress has cited WellPoint , which has 33.7 million policyholders, as being one of the worst offenders.
The health reform bill is supposed to end such practices, but critics say it lacks enforcement or regulatory powers.

Studying the cases of three women, Reuters found that once the women were singled out the insurer then canceled their policies based on either erroneous or flimsy information.

In a separate investigation recently, Reuters showed how Assurant Health similarly targeted HIV-positive policyholders for cancellation. Courts ordered the company to pay millions of dollars in settlements.

Most members of the public do not realize that it is very difficult to sue a government official. As long as government officials are acting within the scope of their discretionary authority, they are typically immunized by law from legal liability for mistakes they make, even including claims involving negligence, gross negligence and/or recklessness. The main exception to this rule typically involves the operation of automobiles for which there has been a statutory waiver of sovereign immunity in Georgia. There are, however, other limited exceptions which can apply in certain particular cases. As an example, if a government official is acting outside the scope of his authority or even if he is performing a discretionary act, if he acts with intent to injure and/or acts maliciously, he or she can lose immunized status and be subject to legal liability for such willful acts. Again, these exceptions to the doctrine of official immunity are limited. Accordingly, if a claim is to successfully be brought against a government official, it is necessary that counsel be retained at the earliest opportunity.

Not only is there a procedure maze of hurdles that one must overcome to file a claim against a government official, as indicated in earlier blogs and other posts on this site, there are multiple ante-litem provisions that must be taken into consideration when considering a claim against a government official. Valid claims against those who abuse their authority can be successfully prosecuted if the facts establish an exception to claims of official immunity.

The motorcycle collision cases which our Atlanta attorneys involve devastating injuries and deaths. After rising steadily for nearly a dozen years to set a record in 2008, the number of people killed nationally in motorcycle accidents dropped dramatically last year, according to a report issued Thursday.

The report by the Governors Highway Safety Association found that fatal crashes declined nearly 16 percent in the first nine months of 2009, compared with the same period the year before.

In the same period during 2008 there were a record 5,290 motorcycle fatalities reported. The report offers no ready explanation for the decrease.

Speculation for the decrease included that the economy was keeping motorcyclists off the road, that a 42 percent drop in new motorcycle sales last year resulted in fewer novice riders and that publicity about deaths had heightened the awareness of both motorcyclists and motorists.

The report did not include data from Georgia.

During the nine month period of the comparison, the District of Columbia and 38 states reported a drop in motorcycle deaths, and 12 states recorded an increase. California had 133 fewer deaths, Florida had 111 fewer and Ohio had 48 fewer. Only two states, Hawaii and Rhode Island, had double-digit increases. Once numbers for the final three months of 2009 are factored in, the report projects, the annual fatality decline will be 10 percent.

In soliciting the data in the report, the GHSA also asked state safety agencies to articulate the reasons for the decline.

Several responses pointed to the economy and underscored that a significant portion of motorcycling is for recreation rather than transportation.

Others suggested that high fuel prices and the independent image of motorcyclists had previously caused a temporary surge in ridership. The report suggested that motorcycle death rates could be decreased further by increasing helmet use, reducing alcohol impairment, reducing speed, and providing operator training to all who need or seek it.

A study of Medicare patients shows that doctors are increasingly performing costlier, more complex spinal fusion surgeries, sometimes unnecessarily, for stenosis, a common lower back condition caused by aging and arthritis.

Even more disturbing is that the findings suggest these more challenging operations are riskier, leading to more complications and even deaths.

According to surgeons, a simpler and less risky operation could cost $20,000 and the more complex one $80,000 without any good evidence the expensive one is being used appropriately in the majority of cases.

The cost to Medicare, just for the hospital charges for the three types of back surgery reviewed is about $1.65 billion a year, according to the researchers.

All the patients in the study had stenosis in their lower backs, a painful squeezing in the spine that's most common in people over 50. The researchers compared the risks for three different types of surgery for the condition: decompression, simple fusion and complex fusion.

There's little agreement about the best way to treat chronic lower back pain, and much depends on what's causing the pain.

Many times steroid injections and physical therapy provide relief, and a simple decompression procedure is as helpful as a spinal fusion and with less risk.
In a decompression procedure, the simplest method in the Medicare study, a surgeon cuts away part of the bone that's painfully pressing on nerves. It can cost about $30,000 in hospital and surgeon fees.

For a fusion, a surgeon binds two or more vertebrae together using a bone graft, with or without plates and screws. The researchers defined a complex fusion as one involving three or more vertebrae or more than one side of the spine. Fusions cost $60,000 to $90,000.

The researchers analyzed data on more than 32,000 Medicare patients who had one of the three types of surgeries in 2007.

About 5 in 100 patients who had simple or complex fusions suffered major complications such as stroke compared to 2 in 100 with decompressions. The risk of death within 30 days after surgery was different too: 6 in 1,000 for complex fusions compared with 5 in 1,000 for simple fusions and 3 in 1,000 for decompressions.
More than half the patients who had complex fusions had a simple stenosis, which usually calls for decompression alone. They did not have curvature of the spine or a slipped vertebra which might suggest a fusion is needed.

Rates of complex fusions in Medicare patients rose 15-fold from 2002 to 2007, while decompressions and simple fusions declined, the study found. Although the overall procedure rate fell, hospital charges grew 40 percent.

Aggressive marketing of devices used in complex fusions is likely playing a role in the increase according to researchers. The marketing includes ads in medical journals and lectures by surgeons on the payroll of device manufacturers.

Allegations of kickbacks to spine surgeons for using products and questionable financial arrangements to doctors as consultants have abounded in the industry. One company, Medtronic Inc., reached a $40 million settlement with the U.S. Justice Department in a whistleblower case that included allegations the company paid doctors to use its spine surgery products. The company denied any wrongdoing.

A provision in the new health care law requires device makers and others to file annual reports to the government on their financial ties to doctors. Patients will be able to look up possible conflicts in a government database.

Medical malpractice became a hot button issue in the recent healthcare debate. Many politicians, healthcare workers, and large insurers argued that medical malpractice cases are a large contributor to the rising cost of healthcare in the United States. Even though this line of argument has been consistently proven to be false, it was constantly brought up buy opponents of healthcare reform.

There is a better way to reduce the number of medical malpractice cases without sacrificing innocent victims who have been maimed due to preventable medical errors.

A California study has revealed a decrease in preventable patient injuries in California hospitals from 2001 to 2005 that coincided with a drop in malpractice suits against doctors.

"These findings suggest that putting a greater focus on improving safety performance in health care settings could benefit medical providers as well as patients," stated lead author Michael Greenberg, a behavioral scientist at the Rand Corporation. The study was released April 15 on the group's Web site.
The researchers analyzed 2001-05 data and found that there were about 365,000 adverse events among patients, such as post-surgical problems and hospital-acquired infections, and about 27,000 malpractice suits in California during that time.
The study found a significant association between the annual number of safety lapses that put patients at risk in each county and the number of malpractice claims. A model created by the researchers showed that a county with 10 fewer adverse events in a year would have 3.7 fewer malpractice claims during that year.

The study is the first to show a connection between improved performance on 20 well-established indicators of patient safety and fewer malpractice claims, according to the researchers.

This simple solution to reducing medical malpractice claims will benefit everyone.

Consumer Reports has given the Lexus GX 460 SUV a rare "Don't Buy" warning, saying a problem that occurred during routine handling tests could lead to a rollover accident in real-world driving.

In another hit to Toyota's reputation, the magazine reported that during a test of the vehicle's performance during unusual turns, the rear of the vehicle slid until it was nearly sideways before the electronic stability control system kicked in.

Consumer Reports said in real-world driving, this could cause a rollover accident. As a result, the magazine has given the seven-seat SUV a "Don't Buy: Safety Risk" label until the problem is fixed.

Consumer Reports said the last vehicle to receive such a warning was the 2001 Mitsubishi Montero Limited. It said among the 95 SUVs in its current ratings, no other slid as far as the GX 460.

In a statement Toyota said it is concerned with Consumer Reports' findings, adding that its engineers will try to duplicate the magazine's tests to determine its next steps.

Starting at about $52,000, the GX 460 is a small-volume vehicle for Lexus, Toyota Motor Corp.'s luxury brand. It went on sale in November and only about 5,000 have been sold since then. But the warning represents yet another blow for Toyota's tarnished reputation for safety following recalls of millions of vehicles for faulty gas pedals. The GX 460 is not covered by the pedal recalls.

Consumer Reports said the problem occurred during a handling test on its test track. During the test, the driver approaches a turn unusually fast, then releases the accelerator pedal to simulate the response of an alarmed driver. This causes the rear of the vehicle to slide.

In normal cases, the vehicle's electronic stability control should quickly correct the loss of control. But in the case of the GX 460, the stability control took too long to adjust, causing a risk of rolling over. However, Consumer Reports said it is not aware of any reports of the vehicle rolling over. The magazine said it tested two separate vehicles, both of which experienced the problem, but neither rolled over.

The GX 460 is built on the same platform as the Toyota 4Runner, but Consumer Reports said the problem did not occur during similar tests on the 4Runner. According to Toyota's Web site, both vehicles are about six feet tall but the GX 460 is about 3 inches taller.

Consumer Reports said it is very rare for the magazine to caution consumers against buying a vehicle because of safety concerns. The Mitsubishi Montero, a large SUV, received such a warning in its August 2001 issue after testers claimed its wheels lifted off the ground during standard avoidance-maneuver tests.

Our Atlanta Product Liability attorneys frequently discover that large corporations routinely hide documents and information which they are required by law to disclose to opposing parties in lawsuits. Unfortunately this illegal and unethical practice has been embraced by many large corporations and their defense attorneys as a justifiable practice.

A recent study by the AP of the litigation practices of Toyota gives an insight into this practice.

According to the study, Toyota has routinely engaged in questionable, evasive and deceptive legal tactics when sued, frequently claiming it does not have information it is required to turn over and sometimes even ignoring court orders to produce key documents.

The AP review of lawsuits filed around the country involving a wide range of complaints revealed the automaker has hidden the existence of tests that would be harmful to its legal position and claimed key material was difficult to get at its headquarters in Japan. It has withheld potentially damaging documents and refused to release data stored electronically in its vehicles.

The AP cited as an example a Colorado product liability lawsuit filed by a man whose young daughter was killed in a 4Runner rollover crash. Toyota withheld documents about internal roof strength tests despite a federal judge's order that such information be produced, according to court records. The attorneys representing the plaintiff in that case believe the verdict in favor of Toyota would have been different had they been provided the information to present to the jury.

A new federal lawsuit has been filed accusing Toyota of fraud in the earlier case.

In another case reported by the AP, a Texas woman was killed when her Toyota Land Cruiser lurched backward and pinned her against a garage wall. Toyota told lawyers for the woman's family it was unaware of any similar cases. Yet less than a year earlier, Toyota had settled a nearly identical lawsuit in the same state involving a Baptist minister who was severely injured after he said his Land Cruiser abruptly rolled backward over him. Under court discovery rules, Toyota had an obligation to inform the woman's attorneys about the case when formally asked.

The AP reviewed numerous cases around the country in which Toyota's actions were evasive, and sometimes even deceptive, in providing answers to questions posed by plaintiffs. Court rules generally allow a person or company who is sued to object to turning over requested information; it's permitted and even expected that defense attorneys play hardball, but it's a violation to claim evidence does not exist when it does.

How Toyota handled past lawsuits could indicate how it will deal with more than 130 potential class-action lawsuits filed by owners who claim the recent recalls have triggered a sharp loss in their vehicles' value. Separately, Toyota faces nearly 100 federal wrongful death and injury lawsuits by victims who blame their crashes on sudden acceleration.

Additional related lawsuits examined in the AP review found:

Toyota hid the existence of its roof strength tests in numerous cases. A new potential class-action lawsuit filed in California on behalf of two women left paralyzed by separate Toyota rollover crashes contends that recently uncovered company documents contradict sworn testimony by Toyota officials that the company had no written standard for how far vehicle roofs could be crushed. The long-hidden documents indicate Toyota did have such a standard: roofs could come no closer than a half-millimeter from test dummies' heads in a rollover crash.

Toyota claimed in court documents that a 2000 Camry had "no component" to record its speed at the time of a crash. A Texas woman suing the automaker asserted she was injured when the air bag failed to deploy. The case went to trial last September and ended with a jury ruling in Toyota's favor. Attorneys for the woman later found documents showing the Camry did record such information and that Toyota had the ability to download it from vehicles as early as 1997.

Unfortunately these illegal tactics will continue until the courts around the country take definitive action to prevent them. Companies and lawyers caught in this conduct must be disciplined to an extent that will deter this conduct in the future.

The safety of the United States food supply is a vital interest of all citizens. The recent deadly outbreaks of salmonella poisoning in peanuts, spinach, and other foods has brought the lack of safeguards in the food supply chain to the forefront.

A new report by the U.S. Food and Drug Administration’s inspector general, released last week, documents an outdated and ineffective federal food safety program with too few inspectors, too skimpy legal authority and too little funding.

Faced with the reality of overseas food-processing plants that have been responsible for several recent food safety scares such as contaminated seafood and powdered milk, the FDA report reveals that the agency doesn’t even have enough inspectors to visit U.S. processing plants.

According to the report, the FDA can’t even track dangerous food from the plant where it was processed to the stores where it was sold. Even more disturbing is the fact that the agency does not have the authority to order a recall when tainted food is discovered.

The last time U.S. food safety laws were updated was in 1938. This week, the Senate could take up a new food-safety bill that would update the FDA’s authority, allow it to dictate “best practices” for processing and preparing food and mandate more frequent inspections.

The Food Safety Enhancement Act was approved by the House last summer. It would require a food-tracking system so that when inspectors discover problems at a food-processing plant, they can trace where tainted products were shipped.
Those common-sense updates are overdue.

The inspector general’s report, released last week, details a system in urgent need of attention. Staffing for FDA food safety programs fell by 18 percent between 2003 and 2007, even as the number of U.S. food-processing plants climbed to 51,229. The number of FDA inspectors has increased, but it remains below the level in 2003.

The FDA took regulatory action to force compliance in about half of the instances in which inspectors uncovered serious problems. In the rest, the FDA either reclassified the findings as less serious violations or did nothing.

In about 36 percent of cases in which serious problems were found, the FDA didn’t conduct follow-up inspections to ensure that the violations had been corrected.
Some 76 million Americans contract a food-borne illness every year. About 325,000 people are hospitalized and about 5,000 die each year from those illnesses.